Sunil Rai vs State Of Sikkim on 14 June, 2016

[Cites 19, Cited by 1]

Sikkim High Court

Sunil Rai vs State Of Sikkim on 14 June, 2016

1. This is an application under provisions of Section 391 read with Section 482 of the Code of 2 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim Criminal Procedure, 1973 (for short "Cr.P.C.") seeking to remand the matter back to the trial Court for a limited purpose to produce an Exhibit, the Hotel Attri Reception Entry Register (Serial No. 01 to 08) with blue plastic cover seized vide property seizure memo (Exhibit 6) on 01.08.2013 and also further adduce additional evidence.

2. Mr. S. S. Hamal, Learned Advocate assisted by Ms. Dechen Bhutia, Advocate appearing for the appellant seeks to contest the application at the admission stage itself, thus, the application is taken up for final disposal at this stage itself.

3. The brief facts relevant for the purpose of disposal of the application are that the appellant was convicted and sentenced for offences punishable under Section 489-B and 489-C of the Indian Penal Code, 1860 (for short "IPC").

4. Case of the prosecution is that the appellant was caught tendering a counterfeit currency note of Rs.500/- (Rupees five hundred) in a shop which led to search of a room in Hotel Attri, allegedly occupied by the appellant. The Investigating Officer conducted the search of the said room on 01.08.2013, about 10.30 A.M. On 3 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim inspection of the concerned room, a total 98 numbers of fake Indian currency notes with some contraband substances were found.

5. On personal search of the accused, six fake notes of denomination of Rs.500/- (Rupees five hundred) each were also seized. The case was tried by the Sessions Judge, West Sikkim at Gyalshing, finding the appellant guilty under the aforestated provisions. Accordingly the appellant was convicted and sentenced to undergo simple imprisonment for a period of five years and to pay a fine of Rs.5000/- (Rupees five thousand) for offence punishable under Section 489-B. He was further convicted and sentenced to undergo simple imprisonment for a further period of two years for the offence punishable under Section 489-C of IPC. Both the sentences were to run concurrently.

6. In the course of argument, it was noticed that the entry register seized by the Police during the investigation was neither produced nor examined. According to the prosecution, the entry register indicates the date and time of the entry of the appellant in the Hotel Attri, however, in the examination of P.W.5 (the Assistant Manager of the Hotel Attri), it was stated that 4 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim the appellant was admitted to the Hotel Attri at around 5.30 P.M on 01.08.2013.

7. The Learned Additional Public Prosecutor, would submit that the examination of the entry register is necessary to clear the cloud about the timing of the inspection of the room and also for just decision in the trial of the case. The Learned Counsel would further submit that the prosecution is keen to arrive at a fair conclusion in the interest of justice.

8. On the other hand, Shri S. S. Hamal, Learned Advocate appearing for the appellant, referring to a decision of the Learned Single Judge of the Andhra Pradesh High Court in Ch. Ramakoteshwara Rao & Ors. Vs. The State of A.P.1, submits that remitting back the matter to examine the entry register amounts to production of new documentary evidence which may be used to fill up the lacunae in the case of the prosecution.

9. I have considered the entire facets of the case and carefully examined the pleadings and documents appended thereto. Undisputedly the reception entry

1. 2010 (2) Crimes 123 (A.P.) 5 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim register is an indicator of the factum of the entry or admission of the person into the Hotel. The other evidence may be persons present at the time of admission of the appellant into the Hotel. Substantial amount of fake currency notes were found in the Hotel room, which was allegedly in the occupation of the appellant. Some notes were allegedly discovered from the body of the appellant also.

10. Section 391 of the Cr.P.C. is not to assist the prosecution to convict the person but to come to a proper and just conclusion in the interest of criminal justice. Examination of additional evidence helps the innocent and also assist the prosecution to establish the offence properly.

11. It is apt to refer to the relevant provisions of Section 391 of the Cr.P.C. which reads as under:

"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, 6 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim 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."

12. The Supreme Court in Bir Singh and Ors. Vs. The State of Uttar Pradesh2, examining the scope of Section 391 of Cr.P.C. held as under:-

"11......It is well settled that though an Appellate Court has power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. ......."

13. In Rambhau and Anr. Vs. State of Maharashtra3, wherein the appellants were charged for an offence committed under provisions of Section 13 of the Prevention of Corruption Act, the factum of demand by the accused on earlier day was proved by evidence and also the seizure of tainted notes, however, the factum of demand and payment on that day was not put to accused in his examination under Section 313 of the Code of Criminal Procedure, the Supreme Court held as under:-

"3. Be it noted that no set of principles can be set forth for such an exercise of power under

2. AIR 1978 SC 59

3. AIR 2001 SC 2120 7 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim Section 391 since the same is dependant upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society.

4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on any analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P. Code".

14. In yet another case Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others4, wherein in the appeal against the judgment of acquittal filed by the State, certain important depositions were not properly examined, the Supreme Court considering the ambit and scope of provision of Section 391 of the Cr.P.C. held as under:-

"47. Section 391 of the Code is another salutary provision which clothes the courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate court

4. (2004) 4 SCC 158 8 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate court to call for further evidence before the appeal is disposed of. The appellate court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.

48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391.

49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the section are only to be invoked when formal proof for the prosecution is necessary. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court. As 9 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim reiterated supra, the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions."

15. Further in Ashok Tshering Bhutia Vs. State of Sikkim5 the prosecution did not produce certain documents which referred to the bills of the telephone and electricity expenditure, when the appellant was charged for an offence punishable under Section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1980, held as under:-

"28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the Court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.

29. The primary object of the provisions of Section 391 CrPC is the prevention of a guilty man's escape through some careless or ignorant

5. (2011) 4 SCC 402 10 I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. State of W.B., Ratilal Bhanji Mithani v. State of Maharashtra, Rambhau v. State of Maharashtra, Anil Sharma v. State of Jharkhand, Zahira Habibulla H. Sheikh v. State of Gujarat and Manu Sharma v. State (NCT of Delhi)]

30. ..............

31. ............

32. In view of the above, the law on the point can be summarized to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents, etc. just to meet the ends of justice. However, the provisions of Section 391 CrPC cannot be pressed into service in order to fill up lacunae in the prosecution case."

16. The Learned Single Judge of the Andhra Pradesh High Court in Ch. Ramakoteshwara Rao1, (supra) cited by Learned Counsel for the appellant has rightly held as under:-

"9(4) ........Where in a case it appears that the material evidence was not produced due to inadvertence and the same is necessary for just conclusion of the case, the Court may exercise powers under Section 391 Cr.P.C.".......

I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim I am in respectful agreement with the aforesaid view of the Andhra Pradesh High Court.

17. The entry register is not a new evidence, it was seized during investigation from the Hotel but the same could not be examined, inadvertently. The examination of the entry register vis-a-vis deposition of the persons would facilitate just and proper conclusion in the trial. Accordingly exercising the powers under Section 391 of the Code of Criminal Procedure, 1973, the Sessions Judge, West Sikkim at Gyalshing is directed to examine the additional evidence i.e. hotel entry receipt register, which was seized by the Investigating Authority in the case, after giving proper opportunity to the accused, in accordance with law, with proper certification. The Learned Sessions Judge, West at Gyalshing is further directed to submit a report thereof immediately for disposal of pending appeal in this Court.

18. The examination of said evidence shall be completed within a period of four weeks' from the date of the receipt of the papers with a copy of the order from this Court.

I.A. No. 3 of 2016 in Cr.A.No. 07 of 2016 Sunil Rai Vs. State of Sikkim

19. It is ordered accordingly.

( S.K. Agnihotri ) Judge 14-06-2016 Approved for reporting : Yes to Internet : Yes

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