Allahabad High Court
Phool Vijay Singh And Another vs State Of U.P. Thru. Prin. Secy. Home And ... on 30 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- APPLICATION U/S 482 No. - 7046 of 2022 Applicant :- Phool Vijay Singh And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Applicant :- Arun Constance Silvano,Sanjay Rogers,Vikas Kumar Goswami Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Arun Constance Silvano, learned counsel for applicants as well as learned Additional Government Advocate for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicants namely Phool Vijay Singh and Kamlavati Singh Rathore with the prayer to set-aside the order dated 25.8.2022 passed by Additional Sessions Judge/ Fast Track Court(II), Lucknow in Criminal Appeal No. 190/2020 Phool Vijay Singh & another Vs. State of U.P. and further allow the application under Section 391 Cr.P.C. filed by the applicants.
Learned counsel for the applicants while referring to the order dated 25.8.2022 of the court below, vehemently submits that the trial court has committed manifest illegality in rejecting the application of applicantsmoved under Section 391 Cr.P.C. as no opportunity was given by the trial court to adduce the evidence in his defence and therefore the applicants were not in a position to defend themselves properly, before the trial court and it was the foremost duty of the appellate court to have allowed the application moved by the applicants under Section 391 of the Cr.P.C. for production of further evidence.
Learned AGA on the other hand submits that before the first appellate court an opportunity was given by the trial court at the stage of Section 313 Cr.P.C when the statement of accused persons was being recorded and that opportunity was not availed by the applicants as they refused to tender any evidence in their defence and therefore they could not move any application before the trial court under Section 391 Cr.P.C.
It is also submitted that even the application, which was moved before the appellate court under Section 391 Cr.P.C. was not containing any avertment with regard to any specific documentary or oral evidence which the applicants want to tender as further evidence before the appellate court. Thus no illegality has been committed by the trial court in dismissing the application of the applicants, vide order dated 25.8.2022.
Learned counsel for the applicants in support of his contention has relied on a judgment of the Hon'ble Supreme Court in Sukhjeet Singh Vs. The State of Uttar Pradesh and others reported in MANU/SC/0077/2019.
Having heard learned counsel for the parties and having perused the record, in thehas considered opinion of this Court having regard to the order intended to be passed the service of notice on opposite party no.2 is hereby dispensed with.
So far as the law referred to by the learned counsel for the applicant is concerned, namely, Sukhjeet Singh Vs. The State of Uttar Pradesh and others reported in MANU/SC/0077/2019, the Hon'ble Supreme Court has opined as under:-
"12. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 Code of Criminal Procedure 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) 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.
13 . 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:
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the Accused, or order him to be 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;
14. 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 Code of Criminal Procedure has come up for consideration before this Court in Rajeswar Prasad Misra v. State of West Bengal and Anr. MANU/SC/0080/1965 : AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held 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. Following was laid down in Paragraph Nos. 8 and 9:
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 proper to construe one Section with the aid of observations made 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 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...
1 5 . This Court again in Rambhau and Anr. v. State of Maharashtra, MANU/SC/0309/2001 : (2001) 4 SCC 759 had noted the power Under Section 391 Code of Criminal Procedure of the Appellate Court. Following was stated in Paragraph Nos. 1 and 2:
1. 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. A plain look at the statutory provisions (Section 391) would reveal the same....
2. A word of caution however, ought to be introduced for guidance, to wit: that 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 retrial or to change the nature of the case against the Accused. This Court in the case of Rajeswar Prasad Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that 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.
16. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power Under Section 391 Code of Criminal Procedure 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."
Coming to the fact of the instant case it would be an admitted fact that the applicants/ accused persons did not opt before the trial court to tender any evidence in support of their defence. In this regard the statement of the applicants recorded under Section 313 Cr.P.C. may be referred. It is also an admitted fact, which is also evident from the application moved before the appellate court under Section 391 Cr.P.C. as well as from the affidavit enclosed therewith that no mention of any specific documentary or oral evidence has been stated therein. Thus only on the basis of the above mentioned two admitted factual aspect in the considered opinion of this Court, no illegality or to say any irregularity appears to have been committed by the appellate court in rejecting the application of the applicants moved under Section 391 Cr.P.C. At the cost of repeatation it is recalled that when no evidence either of the documentary or oral nature was mentioned by the applicants in their application moved under Section 391 Cr.P.C. the appellate court was not in a position to appreciate as to whether that the additional evidence requested to be tendered by the applicants is necessary for the just decision of the appeal.
Having regard to all the facts and circumstances of the case and for the reasons mentioned herein before, I do not find any illegality in the impugned orders, thus the application moved on behalf of the applicants under Section 482 Cr.P.C. is hereby dismissed.
However, dismissal of the instant application will not preclude the applicants to move another application under Section 391 Cr.P.C. before the trial court by clearly mentioning oral and documentary evidence separately which they want to tender as additional evidence before the trial court and if such an application is moved within a reasonable time to say within 30 days from today, the appellate court below shall be under an obligation to dispose of the same by passing a reasoned order having regard to the law laid down by the Hon'ble Supreme Court cited herein before. It is clarified that this Court has not opined any thing pertaining to the factual aspect of the case and the observations made herein before are only for the purpose of disposal of this application and the appellate court shall be free to arrive at its own findings and conclusion, having regard to the evidence which may be mentioned by the applicants in their application moved under Section 391 Cr.P.C.
Order Date :- 30.9.2022 Muk