Uttarakhand High Court
Farida Malik vs State Of Uttarakhand on 18 December, 2020
Equivalent citations: AIRONLINE 2020 UTR 509
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.735 of 2020
(U/s 482 Cr.P.C.)
Farida Malik ....... Applicant
Versus
State of Uttarakhand ... Respondents
Mr. D.C.S. Rawat, learned counsel for the applicant.
Mr. Pankaj Joshi, learned B.H. for the State.
Hon'ble R.C. Khulbe, J.
This application is filed under Section 482 Cr.P.C. for quashing the order dated 04.11.2020 passed by the learned Sessions Judge, Champawat in Crl. Jail Appeal No.10 of 2020, Farida Malik Vs. State of Utttarakhand by which learned appellate Court allowed the application moved by the prosecution under Section 391 of Cr.P.C.
2. In brief, on 12.07.2019 at about 19.10 hours an information was lodged at Police Station Banbasa, District Champawat against the applicant - Farida Malik under The Passport Act and The Foreigners Act. After the investigation charge sheet was submitted. After recording the evidence, learned CJM Champawat, came to this conclusion that the prosecution has produced ample evidence against the applicant. Accordingly, the applicant was convicted and sentenced.
3. Aggrieved by it, the applicant preferred jail appeal before the concerned Sessions Judge, which is registered as Jail Appeal No.10 of 2020, Farida Malik Vs. State.
4. During the course of the appeal, an application was moved under Section 391 Cr.P.C. by the State Counsel to produce the further evidence before the 2 Appellate Court. After hearing both the parties, learned Sessions Judge allowed the application and prosecution was directed to produce the evidence before the Court on 25.11.2020. Aggrieved by it, the present criminal misc. application under Section 482 Cr.P.C. has been filed for setting aside the impugned order dated 04.11.2020.
5. It is argued by learned counsel for the applicant that it was a Jail Appeal preferred by the applicant - Farida Malik against the judgment of lower Court. The State had no right to file such an application. It is only allegation in the FIR that the applicant - Farida Malik, who is a citizen of U.S.A. entered in the territory of India without any valid document (visa). It is also submitted by learned counsel for the applicant that the prosecution moved this application just to fill up the lacunae of the prosecution and in the application no reason has been assigned.
6. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 Cr.P.C. empowers the Appellate Court to take further evidence or direct it to be taken. Section 391 is as follows:-
"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
(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."
7. It is a matter of evidence whether the present applicant was coming from Nepal to India without any valid documents or not. The prosecution did not produce the fard, the Register maintained at Custom Office Banbasa, Register of Immigration Office, Register of Check Post, SSB Banbasa. Since, these documents were not produced by the prosecution before the concerned Magistrate, which were essential to prove the case against the applicant. Although these are the formal documents but these documents are necessary to prove the case against the applicant. Although these documents are not mentioned in the application submitted by the A.P.O. but the list of these documents was submitted with the application by the A.P.O., accordingly, on the basis of this list, the concerned Judge allowed the prosecution to prove the same before the concerned Sessions Judge.
8. The key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of Appellate Court are contained in Section 386. In an appeal from a conviction, an Appellate Court can exercise power under Section 386(b), which is to the following effect:-
"386(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be 4 re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;"
9. Hon'ble Apex Court in its judgment in the case of Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887 held that power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before Hon'ble Apex Court in the judgment (supra) and following was laid down in Paragraph Nos. 8 and 9 of the said judgment:-
"8. ...Since a wide discretion is conferred on appellate courts, the limits of that courts' 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 appropriately 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 (even if 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 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. 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 5 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."
10. From the law laid down by the Hon'ble Apex Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people.
11. From the perusal of the impugned order, this Court came to the conclusion that there is no illegality in the impugned order since the Appellate Court has a power to record the evidence at the appellate stage. Accordingly, the present C482 application is bereft of any merit and the same is, accordingly, dismissed with the direction to the Court below to record the evidence of prosecution witnesses as early as possible preferably within a period of one month from today and will decide the appeal according to law expeditiously preferably within a month thereafter.
(R.C. Khulbe, J.) 18.12.2020 Sukhbant