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2023 DIGILAW 325 (UTT)

Naseem Miyon Ansari v. State of Uttarakhand

2023-05-18

PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. The present revision is directed against the judgment and order dated 17.04.2013 passed by the learned Session Judge, Udham Singh Nagar, in Criminal Appeal No.154 of 2011, “Smt. Mehrunisa Vs. Naseem Miya and others”, by which the said Court disposed of the application 29(B) filed under Section 391 of Cr.P.C. for filing certain documents during the pendency of the appeal and to record the evidence regarding those documents. 2. Brief facts of the case, giving rise to the present criminal revision is that Smt. Mehrunisa lodged a criminal prosecution against the revisionist by lodging a first information report in Police Station Rudrapur, on the basis of which, a criminal case was registered against the revisionist Naseem Miya and other accused persons- Sirajudin, Smt. Mahisan and Sitara Bi and separate charge-sheet(s) was submitted against them under Sections 498-A and 506 of IPC and Sections 3/4 of the Dowry Prohibition Act. 3. The cognizance was taken by the learned Magistrate and on 04.07.2006, charge was framed against the revisionist Nadim Mian and other co-accused- Sirajuddin and Smt. Mahisan under Sections 498-A, 506 of IPC and Section 3/4 of Dowry Prohibition Act. On 16.03.2007, the charges were framed of the similar offence against Sitara Bi. 4. The revisionist alongwith other accused persons pleaded not guilty and they were put on trial vide judgment and order dated 17.10.2011 passed by the learned Chief Judicial Magistrate, Udham Singh Nagar, which resulted into the acquittal of revisionist Nadim Mian and other accused persons- Smt. Mahisan and Sitara Bi for the offences under Section 498A, 506 of IPC and Section 3/4 of Dowry Prohibition Act. 5. It is reflected from the record that during the pendency of the trial, accused-Sirajuddin met with a sad demise and the criminal trial was abated due to his death on 20.04.2010. 6. From the judgment, it is reflected that the Magistrate disbelieved the theory of the prosecution, as the first information report was lodged by the informant Mehrunisa after 17 months on reaching to his parental house and no explanation was offered by the prosecution for this delay. 7. Against this acquittal, Criminal Appeal No. 154 of 2011, “Smt. Mehrunisa Vs. Naseem Miya and others”, was preferred in the Court of Session Judge, Udham Singh Nagar, Rudrapur. 8. 7. Against this acquittal, Criminal Appeal No. 154 of 2011, “Smt. Mehrunisa Vs. Naseem Miya and others”, was preferred in the Court of Session Judge, Udham Singh Nagar, Rudrapur. 8. It is reflected from the record that an application 29(b) under Section 391 of Cr.P.C. was moved in the Criminal Appeal No. 154 of 2011, to take additional evidence on record. 9. According to the appellant/applicant, the impugned judgment and order dated 17.10.2011 in Criminal Case No.1848 of 2005 and 2774 of 2005, recorded the acquittal of the revisionist and other co-accused for the reason, that the respondent no.2 herein, who was the informant, lodged the First Information Report after a considerable delay of 17 months. 10. According to the appellant/applicant, this analogy is against the actual facts of the case, as the truth of the matter was that the appellant, before lodging the First Information Report of the case, reported a complaint with Mahila Helpline, Udham Singh Nagar, wherein the revisionist was called by the C.O., Mahila Helpline, but the revisionist did not appear there. It took much time in disposal of the said application before the Mahila Helpline. This fact has been narrated by the appellant in the First Information Report. 11. It is further submitted that the documents regarding the proceedings of Mahila Helpline, Udham Singh Nagar were the part of record of Criminal Case No. 1848 of 2005, “State Vs. Nasim Mian and others”, before the court below, and even in the charge-sheet, Mahila Helpline was indicated in list of witnesses at Sl. No.10. But, during trial, the witness no. 10-Mahila Helpline was not examined and consequently, the trial resulted into the acquittal of the revisionist and other accused persons. 12. The learned Session Judge by reason of the judgment and order dated 17.04.2013 allowed the said application no. 29(B) and quashed the judgment and order dated 17.10.2011 passed by the learned Chief Judicial Magistrate, Udham Singh Nagar, acquitting the applicant and the other accused of the charges stated above, and further directed the court below to call the lady constable of Mahila Helpline, Udham Singh Nagar with the relevant documents and to record her evidence and after recording the evidence, to decide the criminal case No. 1848 of 2005, “State Vs. Nasim Mian”, on its own merits, and also directed the parties to appear before the court below on 20.05.2013. 13. Nasim Mian”, on its own merits, and also directed the parties to appear before the court below on 20.05.2013. 13. Feeling aggrieved by this order dated 17.04.2013, passed by the learned Session Judge, Udham Singh Nagar in Criminal Appeal No. 154 of 2011, “Smt. Mehrunisa Vs. Naseem Miya and others”, the instant revision has been filed 14. Heard learned counsel for the parties. 15. It is submitted on behalf of the learned counsel for the revisionist that the learned Session Judge, while passing the impugned order dated 17.04.2013, had exceeded its jurisdiction as envisaged under Section 391 of Cr.P.C. The learned Session Judge committed a manifest error of law, while quashing the well-reasoned judgment of the acquittal passed by the learned Magistrate in the Criminal Case No. 1848 of 2005, by which the revisionist and other co-accused were acquitted, even before bringing on record the additional evidence sought to be brought on record by the respondent no.2/appellant in the Criminal Appeal. 16. This Court finds substance in the submission made by the learned counsel for the revisionist. 17. In the Scheme of Cr.P.C. it is undisputed that there is a power to take additional evidence by the Appellant Court, if it thinks that the additional evidence is necessary for just disposal of the case. 18. Section 391 of Cr.P.C. is extracted here under:- “(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.” 19. (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.” 19. From a perusal of the provision of Section 391 of Cr.P.C., it is provided that while dealing with an appeal, if the appellate court thinks that additional evidence is necessary, it shall record its reasons and may either take such evidence itself (appellate court), 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. Sub-section (2) provides that the additional evidence so taken under Sub-section (1) by the Court of Session or the Magistrate, the Court of Session or the Magistrate shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. 20. But, in the case in hand, from the impugned order, it is clear that the appellate court was a Court of Session, which, instead of taking additional evidence itself or directing the Magistrate to take the additional evidence and to certify such evidence to it, (Court of Session), quashed the judgment and order dated 17.10.2021 passed by the Magistrate acquitting the applicant and other accused persons and thereafter, directed the Magistrate to record the evidence and to pass a fresh order. 21. Here, at this point, the learned Session Judge exceeded in its jurisdiction, while without bringing the additional evidence on record either by it or by a Magistrate, and set aside the well- reasoned judgment and order passed by the learned trial court and directed the evidence to be recorded later on. 22. This is not the intent of the law as provided under Section 391 of Cr.P.C. and the manner in which the additional evidence is recorded/provided under Section 391 of Cr.P.C. 23. This proposition has not been disputed even by the learned counsel for the respondents. 24. In this view of the matter, the revision is allowed. The impugned judgment and order dated 17.04.2013 passed by the Appellate Court is hereby quashed. The appeal is directed to be restored to its original number in the file of learned Sessions Judge, Udham Singh Nagar, Rudrapur, the Appellate Court. 25. 24. In this view of the matter, the revision is allowed. The impugned judgment and order dated 17.04.2013 passed by the Appellate Court is hereby quashed. The appeal is directed to be restored to its original number in the file of learned Sessions Judge, Udham Singh Nagar, Rudrapur, the Appellate Court. 25. The appellate court is directed to decide the application 29(B) in accordance with the provisions of Section 391 of Cr.P.C. afresh without being influenced by the observations made in this judgment, as this Court did not look into the merits of the application 29-B.