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2019 DIGILAW 1841 (HP)

Vijay Kumar v. State Of Himachal Pradesh

2019-12-03

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with order dated 16.7.2019 passed by learned Additional Sessions Judge, Ghumarwin, district Bilaspur, (camp at Bilaspur) in Cr.Appeal No. 65/10 of 2017, having been filed by the respondent-State laying therein challenge to judgment of acquittal dated 20.6.2017 passed by Judicial Magistrate 1st Class, in Cr. Case No. 146/2 of 2006, whereby it remanded the case back to trial court for recording additional evidence, petitioners-accused (hereinafter, ''accused''), have approached this Court in the instant proceedings filed under S.482 CrPC, praying therein to restore the judgment of acquittal passed by learned trial Court after setting aside the order of remand passed by learned first appellate Court. 2. For having bird''s eye view, facts as emerge from the record are that on 28.4.2006, complainant, Rakesh Kumar lodged a report with the Police Station Barmana, alleging therein that his driver, namely Vijay Kumar (accused No.1), unloaded mattresses and furniture at Mandi and collected Rs.1,53,200/- but thereafter told him that on the previous night, 3-4 persons alighted from an Indica Car between Ghagas and Ghumarwin and after looting money from him fled away from the spot. Complainant alleged that he has suspicion that the driver engaged by him in his Tata 407 Tempo bearing registration No. HP-55-4775 has embezzled the aforesaid money and as such, appropriate action may be taken against him. On the basis of aforesaid complaint/statement made by complainant, FIR No. 92 of 2006 under S.381 IPC came to be registered against the accused. During investigation, allegedly the accused Vijay Kumar, made a disclosure statement under S.27 of Indian Evidence Act, that he alongwith Balvinder Singh, in furtherance of a conspiracy, on the night of 27.4.2006, hid the money in the branches of a mango tree at place Samir Khurd, which subsequently led to recovery of the amount. Police recovered the amount and took into possession vide seizure memo. Accordingly, S.381 IPC was removed from the FIR and Ss. 407 and 120 read with S.34 IPC were incorporated in the FIR. After completion of investigation, Police presented Challan in the court of learned Judicial Magistrate 1st Class, Bilaspur, HP., who being satisfied that a prima facie case exists against the accused, framed charge on 7.12.2007 against the accused, for the commission of the offences punishable under Ss. 407, 120B and 34 IPC, to which they pleaded not guilty and claimed trial. After completion of investigation, Police presented Challan in the court of learned Judicial Magistrate 1st Class, Bilaspur, HP., who being satisfied that a prima facie case exists against the accused, framed charge on 7.12.2007 against the accused, for the commission of the offences punishable under Ss. 407, 120B and 34 IPC, to which they pleaded not guilty and claimed trial. Subsequently learned trial Court vide judgment dated 20.6.2017, acquitted the accused of the offence punishable under Ss. 407 and 120 IPC. Being aggrieved and dissatisfied with aforesaid judgment of acquittal passed by Judicial Magistrate 1st Class, respondent-State filed an appeal in the court of learned first appellate Court, who vide order dated 16.7.2019, remanded the case back to the trial court with the direction to record the evidence of the witnesses named at Sr. Nos. 1, 2, 8, 9, 10 and 14, in the list of witnesses and thereafter return the file to the appellate court to enable it to pronounce the judgment. In the aforesaid background, accused have approached this Court in the instant proceedings, praying therein to restore the judgment of acquittal passed by learned trial Court, after setting aside aforesaid order of remand passed by learned Additional Sessions Judge. 3. I have heard learned counsel for the parties and perused the material available on record. 4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that initially complaint/report in the case at hand was filed/lodged in the year 2006, whereafter, trial court having taken note of material made available to it alongwith Challan filed under S.173 CrPC, proceeded to frame charge against accused under S.407, 120B and 34 IPC on 7.12.2007. Record of trial court clearly reveals that the matter repeatedly came to be adjourned enabling prosecution to examine the witnesses as cited in the list of witnesses. Record of the court below reveals that as many as 30 opportunities were availed by the prosecution to examine its witnesses in support of its case. Though prosecution in its list of witnesses had cited 14 witnesses but despite having availed 30 opportunities it could only examine 4 witnesses. On 3.12.2016, trial court passed following order: "No Pws present nor process issued received back. Though prosecution in its list of witnesses had cited 14 witnesses but despite having availed 30 opportunities it could only examine 4 witnesses. On 3.12.2016, trial court passed following order: "No Pws present nor process issued received back. On perusal of case file it reveals that since 7.12.2007, sufficient opportunities has been granted to the prosecution to produce the prosecution evidence but prosecution failed to do so. Today, it was last opportunity to the prosecution to produce the evidence. Hence, the prosecution evidence is closed by the order of the Court. Now case is listed for accused statement under Section 313 Cr.P.C. for 12.01.2017 " 5. Though the prosecution never laid challenge to aforesaid order passed by trial Court closing its evidence independently, but grounds of appeal filed by the respondent-State do suggest that it also laid challenge to impugned judgment of acquittal on the ground that its evidence was wrongly closed by trial Court. Learned Additional Sessions Judge having taken note of the fact that adequate steps for summoning prosecution witnesses were taken by prosecution, proceeded to record/ hold that once trial court had received bailable warrants, unexecuted, it ought to have issued non-bailable warrants for securing the presence of witnesses, who despite having received bailable warrants, failed to put in appearance. Learned Additional Sessions Judge held that trial court cannot be said to have proceeded to conduct trial of a warrant case in accordance with settled principles of law, especially when no order, if any, ever came to be recoded on the case file, after execution of bailable warrants issued against some of the prosecution witnesses. Learned Additional Sessions Judge also held that learned Assistant Public Prosecutor also appears to have left the proceedings to go on as they were. However, learned Additional Sessions Judge, after having taken note of the lapses on the part of trial Court, proceeded to remand the case back, while exercising power under S.391 CrPC, with a direction to trial Court to record evidence of those witnesses, who were cited by the prosecution in the list of witnesses, but could not be examined. 6. Mr. Naresh K. Thakur, learned Senior Advocate duly assisted by Mr. 6. Mr. Naresh K. Thakur, learned Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate, for the accused, while making this court peruse provisions contained under S.391 CrPC, vehemently argued that learned first appellate Court while exercising power under S.391 CrPC, had no power to remand the case back to trial court with the direction to record the statements of those witnesses, who were initially intended to be examined but were not examined. Mr. Thakur, learned Senior Advocate, further contended that otherwise also, if the grounds of appeal having been filed by the State are perused in their entirety, same nowhere suggest that prayer, if any, ever came to be made on behalf of the State for leading additional evidence, rather challenge to judgment of acquittal recorded by learned trial Court was purely on its merit. 7. Mr. Sumesh Raj, learned Additional Advocate General, while refuting aforesaid submissions made by Mr. Thakur, learned Senior Advocate, contended that under S.391 CrPC, appellate court has wide powers to call for additional evidence, if it is necessary for proper adjudication of the case. Mr. Sumesh Raj, learned Additional Advocate General, further contended that the record clearly reveals that appropriate steps were taken for summoning prosecution witnesses by the prosecution, as such, trial Court could not have closed its evidence. 8. At this stage, it would be apt to reproduce S.391 CrPC, which provides: "391. Appellate Court may take further evidence or direct it to be taken. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 9. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 9. Having perused aforesaid provision of law, this Court is of the view that the ''additional evidence'' would definitely not mean the evidence, which was already on record but not produced due to lapse on the part of the counsel/public prosecutor. 10. Mr. Raj, learned Additional Advocate General, further contended that record clearly reveals that appropriate steps were taken for summoning prosecution witnesses by the prosecution, as such, learned Court below, could not have closed its evidence. 11. At this stage, the question, which needs determination is that what would amount to "additional evidence" in terms of S.391 CrPC? Additional evidence in terms of S.391 CrPC would definitely mean the evidence, which was not in existence at the time of trial or same could not be brought on record at the time of trial despite due diligence. 12. In the case at hand, no doubt, 14 prosecution witnesses were proposed to be examined by prosecution during trial and prosecution had submitted a list of witnesses but record of trial Court reveals that despite sufficient opportunities, (30 opportunities), prosecution failed to examine prosecution witnesses proposed to be examined by it. 13. True it is that few of the prosecution witnesses despite having received bailable warrants, failed to put in appearance as such, learned Court below ought to have issued non-bailable warrants qua such prosecution witnesses so that their statements could have been recorded, but careful perusal of record of learned trial Court below reveals that, at no point of time, prayer, if any, ever came to be made on behalf of the prosecution requesting learned trial Court to take coercive action for securing presence of prosecution witnesses, who despite having received summons failed to put in appearance. Interestingly, in the case at hand, record clearly reveals that report with regard to execution of bailable warrants issued against some of the prosecution witnesses was received on 30.12.2013 and thereafter, matter repeatedly came to be adjourned on the request of learned public prosecutor for examining remaining prosecution witnesses (16 opportunities). 14. Interestingly, in the case at hand, record clearly reveals that report with regard to execution of bailable warrants issued against some of the prosecution witnesses was received on 30.12.2013 and thereafter, matter repeatedly came to be adjourned on the request of learned public prosecutor for examining remaining prosecution witnesses (16 opportunities). 14. Moreover, perusal of order dated 3.12.2016, whereby evidence of the prosecution was closed, nowhere suggests that request, if any, ever came to be made on behalf of the prosecution with regard to issuance of non-bailable warrants at the time of passing of aforesaid order, rather, as has been noticed herein above, prosecution accepted the aforesaid order and allowed learned trial Court to proceed with the trial. Impugned order passed by learned Additional Sessions Judge, if read in its entirety, clearly suggests that learned Additional Sessions Judge, while exercising power under S.391 CrPC, proceeded to remand the case back to the trial court with the direction to examine those witnesses, who were cited as prosecution witnesses in the list of witnesses, which in my considered view could not have been done. There cannot be any quarrel with the proposition of law that appellate Court, while exercising power under S.391 CrPC can always call for additional evidence, which in his/her opinion is necessary for proper adjudication of the case, but as has been observed herein above, evidence, which was otherwise available at the time of trial, but was not led on record, cannot be ordered to be brought on record under the garb of "additional evidence" as provided under S.391 CrPC. While exercising power under S.391 CrPC, learned Additional Sessions Judge is/was well within his right to call for some evidence, in the shape of additional evidence, which was either not available at the time of trial or could not be produced by prosecution despite due diligence. 15. In the case at hand, evidence, which now is sought to be led by way of additional evidence was very much in existence at the time of trial but the prosecution failed to examine its witnesses after having availed 30 opportunities, to examine them, as such, this Court is in total agreement with learned senior counsel for the accused that learned Additional Sessions Judge, while remanding case back to the trial court that too with the direction to record statements of prosecution witnesses has exceeded its jurisdiction. Impugned order passed by learned first appellate Court, if allowed to remain in force, would definitely amount to filling up lacuna in the prosecution case and accused, who have been facing trial since 2006, would be unnecessarily called upon to face agony of the retrial. Word "necessary" as has been used in S.391 CrPC, cannot be said to mean that this power should be exercised when it is impossible to pronounce the judgment, rather, the court, while exercising power under S.391 CrPC, is required to ascertain whether evidence, which is necessary for the just decision of the case, was erroneously rejected by trial Court or such evidence was within the knowledge of the parties also. 16. Reliance is placed upon Shiva Balak Rai v. State of Bihar, (1986) CriLJ 1727 , wherein it has been held by High Court of Patna as under: "13. The language of the section does not put any restriction on the power of the Court. But it is for the appellate Court to decide whether in the interest of justice it is "necessary" to allow any party to give additional evidence. The word "necessary" has not been used in the section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. Under the garb of the provision of this section, the prosecution cannot be allowed to fill up the lacuna in the prosecution evidence. Where only formal proof of a document is necessary, the appellate Court would be perfectly justified in admitting the additional evidence. Likewise, if the evidence, which is necessary for a just decision of the case, was erroneously rejected by the trial Court or such evidence was not within the knowledge of the parties earlier, the appellate Court may exercise the power. The above mentioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. The above mentioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. Ordinarily, it should not be allowed if the prosecution fails to avail the opportunity given to it by the trial Court for producing such evidence. Similar view has been expressed in the case of Rajeshwar Prasad Misra v. The State of West Bengal and Anr., (1965) AIR SC 1887 and it has been held that the order for reception of additional evidence, usually, must not be made if the prosecution has had a fair opportunity and did not avail of it unless the requirements of justice dictate otherwise." 17. It is quite apparent from the aforesaid exposition of law that reception of additional evidence, usually, must not be made if the prosecution has had a fair opportunity and did not avail of it unless the requirements of justice dictate otherwise. In the aforesaid judgment, it has been held that power conferred by this provision must be exercised with great care so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. 18. Reliance is further placed upon Abanash Chandra v. Bimal Krishna, (1963) AIR SC 316 , wherein it has been held as under: "4. In all civilised countries, criminal jurisprudence has firmly established the Rule that an accused person should not be placed on trial for the same offence more than once, except in very exceptional circumstances. In this case, the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person. It was not that he prayed for the examination of an expert and that opportunity had been denied to him. The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial court. That court was not satisfied that that evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted. The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial court. That court was not satisfied that that evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted. On appeal, it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial court was so thoroughly erroneous as to be wholly unacceptable to the appellate court. If the High Court could come to that conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction. But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the court of first instance. It is not a case where it is open to the court of appeal, against an order of acquittal, to order a retrial for the reasons that the trial court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case. It has nowhere been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce. That being so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate, simply on the ground that the case was between a lawyer and his client. Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him. In our opinion, the High Court gave way to considerations which were not relevant to a criminal trial. The High Court was not sitting on a disciplinary proceeding for professional misconduct. It had to apply the same Rules of criminal jurisprudence as apply to all criminal trials, and, in our opinion, the only reason given by the High Court for ordering retrial is against all well-established Rules of criminal jurisprudence. The High Court was not sitting on a disciplinary proceeding for professional misconduct. It had to apply the same Rules of criminal jurisprudence as apply to all criminal trials, and, in our opinion, the only reason given by the High Court for ordering retrial is against all well-established Rules of criminal jurisprudence. The fact that the appellant is a practising lawyer does not entitle him to any preferential treatment when he is hauled up on a criminal charge, even as he is not subject to any additional disability because the case was between a lawyer and his client. There was no relationship of lawyer and client so far as the criminal case was concerned. Hence, in our opinion, the order of retrial passed by the High Court is entirely erroneous and must be set aside." 19. In the aforesaid judgment, Hon''ble Apex Court has held that order for retrial can only be given if it is established on record that trial Court has not given full opportunity to the prosecution to adduce all the evidence available in support of its case. It has been further ruled in the aforesaid judgment that in the absence of anything to show that it is a necessary evidence, court would not be justified in ordering for retrial simply because the prosecution did not adduce all the evidence, that could have been adduced in support of its case. 20. Similarly, in Rambhau v. State of Maharashtra, (2001) 4 SCC 759 , Hon''ble Apex Court has held that appellate court''s power to receive additional evidence cannot be used to fill gap in the case of prosecution and cause prejudice to the accused, but to see that the concept of justice does not suffer. Following para of above judgment may be relevant to this case: "2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and another, (1965) AIR SC 1887 in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 6. Before going into the factual score further, it is convenient to note at this juncture that during the course of hearing of this appeal, the High Court thought it fit to conduct an additional examination of both the accused persons with a reasoning as below: We have examined them to rectify the irregularity as cropped up and pointed out by the defence. The word irregularity in common English parlance means and implies contrary to rule. This Court in the case of The Martin Burn Ltd. v. The Corporation of Calcutta, (1966) AIR SC 529 while explaining the meaning of irregularity observed: A point was, however, made that Section 131 (2)(b) apply only to a cancellation on the ground of irregularity, that is a procedural defect such as, absence of notice, omission to give a hearing etc., There is, however, no reason to restrict the ordinary meaning of the word irregularity and confine it to procedural defects only. None has been advanced. Such a contention was rejected and we think rightly in 57 Calcutta W.N.882: (AIR 1953 Calcutta 773). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. Blacks Law Dictionary defines the word as not according to rule and not regular i.e. which stands contrary to rule. That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. Blacks Law Dictionary defines the word as not according to rule and not regular i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute book has been for the purpose of making it available to the Court nor to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. The High Court itself records to rectify the irregularity, the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of sub- serving the ends of justice, the same runs counter to the concept of justice. 12. Mr. Verma, the learned Senior Advocate very strognly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No.1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the root of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No.1 is a public servant and in discharge of his official duties made a demand of Rs.1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No.2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No.1, it cannot thus but be said that the Appellant No.2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained. In that view of the matter, this Appeal fails and is dismissed. 21. Similarly, reliance is also placed upon Gopi Chand v. State, (1969) CriLJ 1153 (Vol. 75, C.N. 312) (Allahabad High Court), wherein the High Court has held that provisions contained in S.482 CrPC are not meant for filling lapses nor to indulge in fishing of evidence. It has been held as under by High Court: "3. It appears that the Sessions Judge did not appreciate the scope of S.428 of the Code of Criminal Procedure. Section 428 is not meant for filling the latches left in the prosecution case or for allowing it to indulge in fishing of evidence. The impugned order of the Judge does not indicate what evidence was to be taken by the trial Magistrate and who were the witnesses to be examined for that purpose. In my opinion the order is unsustainable." 22. Hon''ble Apex Court in Rajeswar Prasad v. State of W.B., (1965) AIR SC 1887 (V 52 C 820) has held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. In my opinion the order is unsustainable." 22. Hon''ble Apex Court in Rajeswar Prasad v. State of W.B., (1965) AIR SC 1887 (V 52 C 820) has held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases but it must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. Hon''ble Apex Court has held as under: "6. Section 428 occurs in Chapter XXXI which deals with appeals. It speaks of any appeal under that Chapter and the word ''any'' means every one of the appeals (no matter which) mentioned in the thirty-first Chapter of the Code. Section 417(3) is in that Chapter and S. 428 clearly applied to the appeal which was in the High Court. It only remains to determine the limits (if any) of the jurisdiction and power of the appellate Court (here the High Court) in ordering additional evidence and whether the limits so determined were exceeded by the High Court in the present case. 8. These arguments disclose a tendency to read the observations of this Court as statutory enactments. No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact. The two cases of this Court point out that in criminal jurisdiction the guiding principle is that a person must not be vexed twice for the same offence. That principle is embodied in S. 403 of the Code and is now included as a Fundamental Right in Art. 20(2) of the Constitution. The protection, however, is only as long as the conviction or acquittal stands. But the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be) if the trial already held is found to be unsatisfactory or leads to a failure of justice. In the same way, the Code gives a power to the appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. In the same way, the Code gives a power to the appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. The Code thus gives power to the appellate Court to order one or the other as the circumstances may require leaving a wide discretion to it to deal appropriately with different cases. The two cases of this Court deal with situations in which a retrial was considered necessary by the appellate Court. In the case of Abinash Chandra Bose, this Court held that the order for retrial was not justified. In Ukha Kolhe''s case too the order for retrial was considered unnecessary because the end could have been achieved equally well by taking additional evidence. This Court mentioned, by way of illustration, some of the circumstances which frequently occur and in which retrial may properly be ordered. It is not to be imagined that the list there given was exhaustive or that this Court was making a clean cut between those cases where retrial rather than the taking of additional evidence was the proper course. It is easy to contemplate other circumstances where retrial may be necessary as for example where a conviction or an acquittal was obtained by fraud, or a trial for a wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. Cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on appellate Courts, the limits of that Court''s jurisdiction must+ obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step approximately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. "9. The former is an extreme step approximately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. "9. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be ''said that additional evidence must be necessary not because it would be im- possible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly Sup./165--13 and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under S. 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have ,attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised. 23. We might have ,attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised. 23. It is apparent from the aforesaid law laid down by Hon''ble Apex Court as well as discussion made herein above that though the appellate Court has wide powers to call for additional evidence in exercise of power under S.391 CrPC but such power is required to be exercised sparingly and with utmost caution. On the top of everything, power under S.391 CrPC, cannot be used to fill up lacuna in prosecution case, which might have crept in on account of omission, if any, on the part of the prosecution. 24. At this stage, Mr. Sumesh Raj, learned Additional Advocate General, placed reliance upon Rajendra Prasad vs. Narcotic Cell, (1999) 6 SCC 110 and contended that a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant material or in eliciting relevant answers from witnesses. Lacuna in the prosecution must be understood as an inherent weakness or a latent wedge in the matrix of the prosecution case. 25. There cannot be any quarrel with aforesaid submission made by Mr. Sumesh Raj, learned Additional Advocate General but the facts of the present case are totally different, wherein it stands duly proved that the prosecution despite having availed of 30 opportunities, failed to examine the witnesses cited by it in the list of witnesses. Moreover, order closing the evidence of the prosecution was passed on 3.12.2016, but no challenge was laid to the order, rather, the prosecution allowed the court to decide the case on the basis of evidence adduced by it. Similarly, there is no force in the submission of learned Additional Advocate General that the examination of prosecution witnesses in terms of remand order passed by the Court below would not amount to "retrial". Similarly, there is no force in the submission of learned Additional Advocate General that the examination of prosecution witnesses in terms of remand order passed by the Court below would not amount to "retrial". Had the appellate Court called for some additional evidence in the shape of documents or other material, which earlier could not be brought on the record by the prosecution, such exercise could not have been termed as "retrial", but examination of witnesses, especially those who otherwise stood cited in the list of witnesses furnished by the prosecution during trial, in terms of remand order, would definitely amount to "retrial". 26. Consequently, in view of above, present petition is allowed. Order dated 16.7.2019 passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, (camp at Bilaspur) in Cr. Appeal No. 65/10 of 2017 is set aside. Learned first appellate Court is directed to decide the appeal on its own merit. All pending applications also stand disposed of.