Allahabad High Court
Brig. Sukhjit Singh vs State Of U.P. And 2 Others on 17 January, 2017
Author: Alok Kumar Mukherjee
Bench: Alok Kumar Mukherjee
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 23 Case :- APPLICATION U/S 482 No. - 34100 of 2015 Applicant :- Brig. Sukhjit Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Dinesh Kumar,Gurubax Singh Counsel for Opposite Party :- G.A.,Anoop Trivedi Hon'ble Alok Kumar Mukherjee,J.
Heard Sri G.S.Chaturvedi, learned Senior Counsel assisted by Sri Dinesh Kumar, learned counsel for the applicant, Sri Hargur Saran Singh, opposite party no.3, who has appeared in person and learned AGA for the State.
This application has been preferred against the order dated 02.11.2015 passed by the learned Sessions Judge, Rampur in Criminal Appeal No. 57 of 2013 (Brig. Sukhjit Singh (Retd.) Vs. State of U.P.), arising out of Criminal Case No. 264 of 2012 (State of U.P. Vs. Brig. Sukhjit Singh {Retd.}), Case Crime No. 315 of 1991, under Section 420/34 IPC, Police Station Bilaspur, District Rampur, whereby the learned Sessions Judge has rejected the application (14 Kha and 17 Kha) moved by the applicant/appellant, with a prayer for staying the further proceeding in the said criminal appeal, pending in the Court of Sessions Judge, Rampur and for quashing the aforementioned order not permitting the applicant to file the documents in question and to examine the concerned official Scinde Horse Trust qua, the applicant's trust-deed dated 18.10.1989 and concerned resolution bearing no. 112 to prove the same in the interest of justice.
By the impugned application, during the course of hearing of the appeal, the applicant/convict had requested before the appellate court to grant permission to file the aforementioned trust-deed and the said resolution as also to summon the three witnesses mentioned in the application with a view to prove the aforementioned documents. Against these applications, objections had already been filed by the complainant. After hearing the learned counsel for both the parties, the learned Sessions Judge had rejected both the applications.
Learned counsel for the applicant has submitted that the documents proposed to file and the witnesses required to be summoned by the applicant/convict were essential for the just and fair decision of the matter but the appellate court, while deciding the impugned applications, under Section 391 Code of Criminal Procedure, 1973 (for short 'the Code'), gave emphasis that the appellant/convict had given ample opportunity by the learned trial court to file or/and to prove the documents in defence but he failed to do so. In the opinion of the learned appellate court there was no reason for taking the documents in question on record and to get the same proved. It is further contended by the learned senior counsel for the applicant that while declining the impugned applications, the learned Session Judge did not even properly apply the ratio laid down by the Apex Court in the decisions of Ram Bhao and another Vs. State of Maharashtra reported in 2001 (2) Crimes 231 (SC) and Rajeshwar Prasad Mishra Vs. State of West Bengal reported in 1965 (2) Cr.L.J. 817; AIR 1965 SC 1887. He further argued that the applicant is a senior citizen, aged about 82 years and retired as Senior Army Officer. He has been dragged in the present case for the last about 25 years with the aid of Section 34 IPC and has been convicted by the learned trial court without either having an iota of evidence on record or considering the findings of this Court or even taking note of the conduct of the complainant.
Learned AGA for the State as well as the complainant, who is also a senior citizen, aged about 80 years have vehemently opposed the submissions advanced by the learned counsel for the applicant and submitted that the impugned matter is hanging fire for the last about 26 years due to delaying tactics adopted by the applicant. One of the accused has already been dead during the pendency of the trial. The Trust in question is a public charitable trust, owned by the Scinde Horse Regiment of Indian Army. The accused persons wanted to sell the Trust property by misrepresentation, alleging that they were trustees and had obtained the permission of the Court whereas they had no legal right to sell the properties/land belonging to the said Trust. The complainant, who is a marginal farmer having 7 acres of agricultural land only, influenced by the false assurance/ misrepresentations made by the accused persons paid to the tune of Rs. 1,76,000/- to the applicant/convict. During trial, it was proved beyond doubt that the sellers of this Trust property had no legal right to sell this Trust land. The purchasers had demanded back the earnest money already paid to the applicant/alleged owner of the Trust property, which they refused to return. Earlier also the accused persons had moved this Court, time and again, to quash the FIRs as well as the proceeding of the trial court or other orders passed by the trial court but ultimately on 07.10.2013 the applicant was convicted. The applicant by one pretext or the other is adamant to delay the decision of the appeal. The applicant is the son of the Maharaja of Kapoorthala, State of Punjab.
The learned AGA has further submitted that while deciding the application in question, the learned Sessions Judge has found that there is no cogent reason necessitating him to allow the filing of the additional document in question and recording the witnesses named in the impugned application at this highly belated stage. The learned Sessions Judge has recorded cogent reasons for rejecting the applications in question, as per the provisions enumerated under Section 391 of the Code. He further contended that the provisions of Section 391 of the Code should be used sparingly. The applicant/convict had earlier moved an application under Section 482 Cr.P.C. in this Court for quashing of the order dated 17.08.2015 passed by the trial court in another Criminal Case No. 2644 of 2012, arising out of Case Crime No. 315A of 1991 (in a similar matter), where the learned trial court rejected the similar application, in which the High Court had also rejected the aforementioned application of the applicants. Hence, there is no question of permitting the applicant to file fresh documents and to examine three witnesses at this belated stage, i.e., after 26 years.
I have gone through the submissions made at bar and perused the material brought on record by the parties on record.
Section 391 of the Code insofar as relevant for the purpose of this application reads as follows:
"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)-(4)....."
A bare reading of the provision makes it clear that the Section invests the appellate Court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before the Trial Court, power under the Section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course.
In Rambhau and Another Vs. State of Maharashtra 2001 Cr.L.J. 2343, the Apex Court has held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the legislature had put the safety valve by requiring recording of reasons. Thus, recording of reasons is a condition precedent for exercise of power under Section 391 of the Code and an order bereft of reasons would tantamount to non-application of mind, rendering the exercise of power under the Section, bad in law.
Having gone through the impugned order passed by the learned Sessions Judge, perusing the material brought on record by the parties and illumined by the principles of law laid down by the Apex Court in the matter in question, this Court is convinced that the learned Sessions Judge while passing the impugned order had taken into consideration the aforenoted statutory provision as well as principles of law, as provided in Section 391 of the Code and, time and again, laid down by the Apex Court and by this Court. Therefore, the order in question is based on careful thought, material on record and principles of law, laid down by the Apex Court as well as by this Court. Fair trial does not mean only to protect the interest of the accused, but it also includes protecting the right of the complainant/victim. Section 391 of the code should be sparingly used with circumspection to meet the ends of justice and not in normal course for filling up lacunae. Also it cannot be invoked on the whims and fancies of any party. Further, the admission of additional evidence should not operate in a manner prejudicial to prosecution or defence. The present exercise initiated by the applicant for filing additional evidence at such a belated stage appears to be with some ulterior malafide motive or delaying the decision of the appeal to eternity. The learned Sessions Judge has deeply considered the submissions placed by the side of the appellant/applicant and after deeper consideration as per law has passed the impugned order. Thus, in my opinion, the impugned order does not suffer from any vice of non-application of mind, principles of law and material on record. There appears no infirmity, illegality, or arbitrariness in the order in question also. Therefore, the interference by this Court, under Section 482 Cr.P.C., in the matter is not warranted and is liable to be refused.
Consequently, the application U/s 482 Cr.P.C. is dismissed.
The criminal case in question pertains to the year 1991, hence, the learned Sessions Judge concerned is directed to decide the appeal in question as per law, without being influenced by this order, as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order before the court concerned, if there is no legal impediment.
Office is directed to send a copy of this order to the court concerned forthwith.
Order Date :- 17.01.2017 Lbm/-