Rajasthan High Court - Jaipur
Mithlesh Khaitan vs State Of Rajasthan And Another on 9 July, 2013
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R Mithlesh Khaitan vs. State of Rajasthan & Anr. S.B. Criminal Revision Petition No. 814/2011 under Section 397, Cr.P.C. against the order dated 17th June, 2011 passed by the learned Additional Sessions Judge (Fast Track) No.6, Jaipur Metropolitan, Jaipur in Criminal Appeal No. 22/2010. DATE OF ORDER : 09/07/2013 PRESENT HON'BLE MRS. JUSTICE NISHA GUPTA Mr. G.P. Sharma, for the petitioner. Mr. J.R. Bijarnia, PP for State. None present, for respondent. BY THE COURT :
This criminal revision petition has been filed against the order dated 17th June, 2011 passed by the learned Additional Sessions Judge (Fast Track) No.6, Jaipur Metropolitan, Jaipur in Criminal Appeal No. 22/2010, whereby Appellate court quashed the conviction and remanded the matter back to the Trial Court.
The short facts of the case are that a complaint was filed under Section 138 of the Negotiable Instruments Act. After conclusion of the trial, the non-petitioner was convicted and sentenced. Appeal has been preferred where non-petitioner submitted an application under Section 391 CrPC and additional documents have been taken on record on which the Appellate court has quashed the conviction and remanded the matter back to the Trial Court to decide afresh.
The only contention of the present petitioner is that under Section 391 Cr.P.C., Appellate Court can take further evidence or direct it to be taken by the concerned Magistrate and there is no quarrel about this legal position. There only anxiety is that only by filing an application under Section 391 and taking the additional document on record, the conviction cannot be set aside as conviction has attained finality by judicial pronouncement and only by filing an application under Section 391 Cr.P.C., conviction could not be set aside.
Nobody appears on behalf of respondent.
Learned public prosecutor does not dispute about the legal position under Section 391.
Heard learned counsel for the parties and perused the relevant records available on record.
Section 391 reads as follow:-
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.
A bare perusal of Section 391 sub-section (2) clarifies that additional evidence could be taken by the Court of Session or the Magistrate and after considering the additional evidence, the appeal should have been disposed of, but here in the present case, without recording evidence under Section 391, conviction has been set aside which order is apparently perverse. Reliance has also been placed on AIR 2001 Supreme Court 2120, Rambhau and another v. State of Maharashtra, where it has been held :-
The doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under S.391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, S.391 is thus akin to O.41, R.27 of the C.P. Code.
In the light of the above, it can safely be concluded that at the stage of Section 391, the Court can take the necessary additional evidence, but cannot set aside the order of the conviction. Hence, this revision petition is liable to be allowed and order of the Appellate Court regarding setting aside of the conviction is set aside. There seems to be no infirmity in the order of taking additional evidence on record and fixing three months' time for the same.
In view of above, this revision petition is allowed only upto the extend of setting aside of the conviction of the present petitioner. Conviction remains stand against the respondent and the Appellate Court is directed to decide the appeal after receipt of the additional evidence recorded by the court below.
(NISHA GUPTA),J.
Sanjay S.No. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Sanjay Solanki JUNIOR PERSONAL ASSISTANT