Himachal Pradesh High Court
Umesh Kumar vs . H.P. Co-Operative Agriculture on 16 October, 2024
Umesh Kumar vs. H.P. Co-operative Agriculture Development Bank Ltd.
Cr. Revision No. 254 of 2022 Order Reserved on: 10.09.2024 16.10.2024 Present: Mr. Devender Kumar Sharma, Advocate, vice Mr. C.N. Singh, Advocate, for the petitioner. None for the respondent.
Cr. MP No. 1480 of 2024 The applicant/revisionist has filed the present application under Section 482 (sic 391?) for producing the additional evidence. It was laid down by the Karnataka High Court in Umesh Prabhu versus State, 2019 (0) Supreme (Kar) 157 that an application for additional evidence has to be disposed of along with the main appeal and cannot be taken separately.
"10. On close reading of the said paragraph, it has been observed that the provisions of Section 391 of Cr.P.C., are akin to Order 41 Rule 27 of CPC. If the same analysis is applied in the present case, the trial Court ought to have allowed to produce the said documents, thereafter instead of deciding the application separately, it could have heard the appeal along with the said application and have looked into the relevancy of the documents which are produced and thereafter, the appeal as well as the application for production of documents under Section 391 of Cr.P.C., could have been disposed."
2. A similar view was taken in Dharmendra v. State of M.P., 2006 SCC OnLine MP 26: (2006) 1 MP LJ 436: (2006) 4 CCR 350: 2006 Cri LR (MP) 216 wherein it was observed at page 438:
6. The Code of Criminal Procedure gives power to the appellate Court to take additional evidence which for reason to be recorded by the Court, it considers to be necessary to pronounce the judg-
ment. The additional evidence should have such of which there may be an occasion of failure of jus- tice. The additional evidence must have some di- rect bearing on the facts of the case. The opening words of section 391, Criminal Procedure Code says that: --
"In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evi- dence 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."
7. These opening words clearly suggest that the application moved under section 391, Criminal Procedure Code should be considered by the Ap- pellate Court while dealing with the criminal ap- peal and when it comes to the conclusion that this additional evidence is necessary, such application can only be dealt with after going through the en- tire record of the trial Court and after hearing both the parties. Therefore, the wording of section 391, Criminal Procedure Code suggests that the appli- cation moved under this section should not be considered in isolation but should be considered after hearing the parties on merits. If after hearing parties on merits Court comes to the conclusion that the additional evidence is unnecessary then while deciding the appeal application moved un- der section 391 Code of Criminal Procedure can be dismissed. If such additional evidence appears necessary regarding the decision of the matter and without which the appeal cannot be disposed of then such additional evidence may be taken on record either by the Appellate Judge himself or by the trial Court. The Appellate Judge may also re- mand back the matter to the trial Court for the purpose of recording additional evidence as pro- vided under sub-section (2) of the said section 391 therefore, the whole scheme of section 391 sug- gests that like civil cases an application for taking additional evidence on record under section 391 of the Code of Criminal Procedure should also be considering and disposed of after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the appeal on merits because if such ap- plication is disposed of without hearing the appeal on merits then there may be cases of failure of justice.
8. In the sixth edition of Sarkar on Criminal Pro- cedure on page 1048 it has been observed that an Appellate Court cannot decide if additional evi- dence should be admitted unless it has heard the appeal on merits. This opinion of the learned au- thor is based on the case of Varada Rajulu Vol. 42 ILR Madras page 885 and appears to be the correct view of the legal position.
3. This view was reiterated in Pramod Gupta v.
State of M.P., 2013 SCC OnLine MP 2239: ILR 2013 MP 984:
(2013) 3 MP LJ 363. It was observed at page 987:
6. From a reading of the aforesaid provision, it is evident that the opening words of sub-section (1) of Section 391 clearly suggest that the application moved under Section 391 of Cr.P.C. should be con-
sidered by the Appellate Court while dealing with the criminal appeal and when it comes to the con- clusion that this additional evidence is necessary, such application can only be dealt with after going through the entire record of the Trial Court and after hearing both the parties. Therefore, the pro- visions of Section 391 of Cr.P.C. suggest that the application moved under this section should not be considered in isolation but should be consid- ered after hearing the parties on merits. If after hearing parties on merits, the Court if comes to the conclusion that the additional evidence is un- necessary then while deciding the appeal, the ap- plication moved under Section 391 CrPC can be dismissed. If such additional evidence appears necessary for rendering a decision on the matter and without which the appeal cannot be disposed of, then such additional evidence may be taken on record either by the Appellate Judge himself or by the Trial Court. The Appellate Court may also re- mand back the matter to the trial Court for the purpose of recording additional evidence as pro- vided under subsection (2) of the said section 391 of Cr.P.C. Therefore, the whole scheme of Section 391 of Cr.P.C. suggests that like civil cases an ap- plication for taking additional evidence on record under Section 391 of Cr.P.C. should also be consid- ered and disposed of after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the ap- peal on merits because if such applications are disposed of without hearing the appeal on merits, then there may be cases of failure of justice. (Dharmendra s/o Chandan Singh v. State of M.P., (2006) 1 MP LJ 436 referred to).
4. Madras High Court also held in M. Nagarajan v.
M. Navarajan, 2020 SCC OnLine Mad 6451 that the application for additional evidence has to be taken up with the main matter and cannot be disposed of separately. It was observed:
"10. In Rambhau v. State of Maharashtra, CDJ 2001 SC 294 (2001) 4 SCC 759. the Hon'ble Supreme Court in para No. 4 has observed as follows: -- "4. Incidentally, Section 391 forms an exception to the general rule that an appeal must be de- cided 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 the exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up to lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of C.P. Code."
11. From the aforesaid decision, it is clear that the application filed under Section 391 of Cr.P.C., is akin to an application filed under Order 41 Rule 27 of CPC. With regard to the aforesaid position of law, there is no quarrel among the parties because the learned counsel for both parties relied upon the aforesaid decision.
12. In Premier Automobiles Limited, Bombay v. Kabirunissa, CDJ 1990 SC 518., during the pendency of the appeal before the Appellate Court, an appli- cation for admitting additional evidence under Order 41, Rule 27 of the Code of Civil Procedure was filed by the appellants, which remained undisposed of. Even while pronouncing its judg- ment disposing of the appeal finally, the Appellate Court did not advert to it. It was only after the case was disposed of that the application for additional evidence was rejected by a short order, observing that the appellants had sufficient opportunity to produce the documents in the trial Court, and it had failed to do so. Under the said circumstances, the Hon'ble Supreme Court has held that the Ap- pellate Court will, in the first instance, hear and dispose of the application under Order 41, Rule 27, Civil Procedure Code and only thereafter take up the final hearing of the appeal.
13. In Eastern Equipments & Sales Limited v. ING. Yash Kumar Khanna Appeal (Civil) No. 3178 of 2008 dated 30.04.2008, the Hon'ble Supreme Court has held that in order to decide the pending appeal in which the application under Order 41 Rule 27 of CPC was filed ought to have been taken by the Ap- pellate Court along with the application for accep- tance of additional evidence under Order 41 Rule 27 of CPC.
14. A similar view was taken by the Hon'ble Supreme Court in the subsequent judgment in Muzaffar Ali v. Dasaram, Appeal (Civil) No. 85 of 2009 (Arising out of SLP(C) No. 6241 of 2008 dated 12.01.2009 wherein the Hon'ble Supreme Court has directed the High Court, it decide the Second Appeal along with the application under Order 41 Rule 27 of CPC on merits.
15. Though in Premier Automobiles Limited, Bom- bay v. Kabirunissa, (cited supra) the Hon'ble Supreme Court has directed the Appellate Court that in the first instance, hear and dispose of the application under Order 41, Rule 27 of CPC and only thereafter take up the final hearing of the ap- peal, in the subsequent decisions it has held that the application which was filed under Order 41, Rule 27 of CPC shall be heard along with the main appeal.
16. In Brig. Sukhjeet Singh (Retd.) MVC v. The State of Uttar Pradesh, CDJ 2019 SC 078., the Hon'ble Supreme Court has not issued any guidelines as to whether the application under Section 391 Cr.P.C., is to be heard and disposed of independently or along with the main appeal. In that case, consid- ering the facts and circumstances of the case, the Hon'ble Supreme Court has held that the Appellate Court failed to exercise the power under Section 391 of Cr.P.C., properly. So the said decision will not help this Court to decide the issue whether the application filed under Section 391 of Cr.P.C., has to be disposed of independently or not.
17. In K. Thakshinamoorthy v. The Inspector of Po- lice, SPE/CBI/ACB, Chennai, MP.(MD). No. 1 of 2011 in Crl.A.(MD). No. 544 of 2007 dated 14.03.2012, (cited supra) also the question as to whether the application which is filed under Section 391 of Cr.P.C., has to be disposed of independently or not did not arise. Hence, the said decision also will not help the petitioner.
18. In Parasmal Jain v. M. Rajesh (Criminal Revision Case Nos. 224 to 226 of 2015) dated 31.07.2015, also the question as to whether the application filed under Section 391 of Cr.P.C., has to be disposed of separately or not did not arise.
19. In Ravichandran v. Paramasivam, 2013 SCC On- Line Mad 3828 : (2014) 3 CTC 421 this Court while dealing with the application filed under Order 41 Rule 27 of CPC has held that the said application shall be heard along with the main appeal and if the Court comes to the conclusion that the said application is liable to be dismissed, the Appellate Court can dismiss the said application at the time of pronouncement of the judgment in the appeal on merits. Further, it was held that in case, the Court comes to the conclusion that the application filed under Order 41 Rule 27 of CPC has to be al- lowed, then it has to pass a separate order and thereafter follow the procedure contemplated un- der Order 41 Rule 28 of CPC for recording addi- tional evidence. Since the application which was filed under Section 391 of Cr.P.C., is akin to the ap- plication filed under Order 41 Rule 27 of CPC, the procedure which has been prescribed by this Court in Ravichandran v. Paramasivam (cited supra) can be followed in this case also.
20. In Satishkumar v. Raj Kumar, (Criminal Revision No. 3714 of 2018 dated 14.02.2018) a similar ques- tion arose before the Punjab - Haryana High Court wherein the said High Court has observed as fol- lows:--
"It is the contention of learned counsel for the petitioner that an application for additional evidence under Section 391 Cr.P.C. was filed by the petitioner before the Appellate Court which application has been ordered to be taken up along with the main appeal at the time of final arguments. Counsel contends that had the ap- plication under Section 391 Cr.P.C. been con- sidered and decided first and rejected, the peti- tioner would be able to avail the remedy to challenge the same before this Court. Because of the application is being ordered to be heard along with the main appeal, the petitioner would lose that opportunity and a chance to challenge the said order and, therefore, preju- dice would be caused to the petitioner.
She, therefore, contends that the present peti- tion be allowed and the learned Appellate Court be directed to consider and decide the application under Section 391 Cr.P.C. preferred by the petitioner for additional evidence prior to taking up the main appeal for arguments.
Having considered the submissions made by learned counsel for the petitioner and on going through the provisions of Section 391 Cr.P.C., I find that there is no mandate as such for decid- ing the application at an earlier date than the one which is fixed by the Appellate Court for fi- nal disposal of the appeal. That discretion has been given to the Appellate Court to be exer- cised in the given facts and circumstances of each case. The discretion as has been exercised by the Appellate Court cannot be faulted with merely because the petitioner apprehends that the application for leading additional evidence preferred by him under Section 391 Cr.P.C. would not be accepted. In any case, the Appel- late Court has directed the application un- der Section 391 Cr.P.C. to be considered and de- cided at the time when the appeal is listed for arguments. Obviously, in case the Appellate Court comes to a conclusion that the applica- tion for additional evidence is to be allowed as the evidence which is being sought to be pro-
duced is required for a just and proper decision of the case, the Court would take further ap- propriate steps. This approach, in any case of the Appellate Court, appears to be fully justified keeping in view the fact that when the case is open for arguments, the Court would be aware of all the details and evidence led by the parties before it.
It goes without saying that the application for additional evidence has to be considered and decided prior to the final appeal being decided or along with the main appeal itself. The con- tention of the counsel for the petitioner, there- fore, cannot be accepted.
The order dated 06.11.2017 as passed by the learned Additional Sessions Judge, Faridabad, cannot be faulted with.
The present petition being devoid of merit, therefore, stands dismissed."
21. The aforesaid decision will squarely apply to the facts of this case. Therefore, the discretion as has been exercised by the Appellate Court cannot be faulted with, merely because the petitioner ap- prehends that the application for leading addi- tional evidence preferred by him under Section 391 Cr.P.C., would not be accepted. The approach of the Appellate Court appears to be fully justified keeping in view the fact that when the case is open for arguments, the Court would be aware of all the details and evidence led by the parties before it. Whether the application for additional evidence has to be considered and decided prior to the dis- posal of the appeal or along with the main appeal is purely the discretion of the Appellate Court. In this case, the Appellate Court has exercised its discretion and decided to take up the said applica- tion along with the main appeal. This court does not find any infirmity in the said order."
5. Therefore, the application cannot be considered at this stage but has to be considered along with the revision as per these precedents; hence, be listed along with the revision to be decided along with the main revision petition.
(Rakesh Kainthla) Judge 16th October, 2024 (saurav pathania) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.16 16:20:11 IST