Madhya Pradesh High Court
Narendra @ Naru vs The State Of Madhya Pradesh on 14 August, 2019
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
CRR. No.47/2017
(Narendra @ Naru Vs. State of M.P.)
Indore dated :14.08.2019
Shri Vivek Singh, learned counsel for the applicant.
Shri Manish Verma, learned Govt. Advocate for the
non-applicant/State.
They are heard.
The applicant has filed this revision under Section 397
read with Section 401 of the Cr.P.C. challenging the order
dated 24/11/2016, passed by the Special Judge in Cri.A.
No.137/2011.
Brief facts of the case are that, an information was
received on 9/09/2009 to Jagram Singh Kushwah who
happens to be Inspector by an informer. The information was
that two persons were carrying illicit liquor on a motorcycle.
The persons sitting behind the motorcycle ran away. On
asking the name of the other accused person, he disclosed
his name as Narendra S/o Shantilal(present applicant) and
also mentioned the co-accused name as Prakssh S/o
Mohanlal Verma. During search, 56 litres and 160 M.L. of
liquor were seized from their possession. After seizure, the
present applicant was arrested and F.I.R. was lodged for
offence under Section 34(2) of Excise Act at Police Station -
Anjad, District - Barwani. After appreciating the evidence, the
learned trial Court found the applicant guilty under Sections
34(1) (A) read with Section 34(2) of M.P. Excise Act. Against
the said judgment, applicant preferred an appeal and the
learned Appellate Court after hearing both the parties
remanded the case back for re-examination of officer, who
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
CRR. No.47/2017
(Narendra @ Naru Vs. State of M.P.)
had made seizure in the case. Being aggrieved by that order,
the applicant has filed the present revision.
Learned counsel for the applicant submits that the
learned Appellate Court was wrong by remanding the case
back to the trial Court for examination of officer who had
made seizure on the ground that as the article seized has
not been produced in court. The learned trial Court is trying to
fulfill the lacuna left by the prosecution. He further relied on
the judgment passed by the Apex Court in the case of
Rambhau & Anr. Vs. State of Maharashtra reported in
[(2001) 4 SCC 759. In the light of the aforesaid judgment, he
submits that Court cannot direct to fill up gap in the
prosecution case. In such circumstances, he submits that
the order impugned be set aside.
On the other hand, learned Govt. Advocate for the non-
applicant/State supports the order passed by the Court below
and submits that no illegality has been committed by the
Appellate Court in remanding the matter back to the trial
Court.
Heard learned counsel for the parties and perused the
record.
In the present case, the trial Court has convicted the
applicant under Section 34(1) (A) read with Section 34(2) of
M.P. Excise Act and sentenced him to undergo one year RI
with fine of Rs.25,000/- with default stipulation. Against the
said order, the applicant has preferred an appeal before the
Sessions Court. The learned Judge, vide order dated
24/11/2016has remanded the matter back to the trial Court HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE CRR. No.47/2017 (Narendra @ Naru Vs. State of M.P.) on the ground that the article seized has not been produced in the Court.
The Apex Court in the case of Rambhau & Anr. (supra) has held as under :-
Held : There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. But this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. However, t it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Section 391was introduced in the statute book for the purpose of making it available to the Court nor to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer.
Thus, in the light of the aforesaid judgment, the Court cannot permit the prosecution to fill up the lacuna. Thus, in the present case also, by impugned order, the Court below has tried to fill up the lacuna of the prosecution.
In the light of the aforesaid, I allow this criminal revision. The order impugned of the learned Appellate Court remanding the case back for examination of officer who had made seizure is, hereby, set aside.
(Ms. Vandana Kasrekar) Judge pn Digitally signed by Preetha Nair Date: 2019.08.21 13:53:52 +05'30'