Allahabad High Court
B.K. Tiwari vs State Of U.P. And Another on 20 January, 2017
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Reserved A.F.R. Court No. - 48 Case :- APPLICATION U/S 482 No. - 15153 of 2016 Applicant :- B.K. Tiwari Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.,Rahul Agarwal,Shishir Tandon Hon'ble Naheed Ara Moonis,J.
The instant application. has been filed invoking the inherent jurisdiction of this Court under section 482 Cr.P.C with a prayer to quash the order dated 18.4.2016 in Crimial AppealNo. 15 of 2016 (B.K.Tiwari versus State of U.P.) arising out of Case Crime No. 519 of 2005 under section 409 IPC Police Station Kalyanpur District Kanpur Nagar pending in the court of Additonal District Judge Court No.10, Kanpur Nagar and further relief has been sought to quash the entire proceedings of the aforesaid case pending in the court of Additional District Judge Court No.10 Kanpur Nagar.
Heard Sri Manish Tiwary learned counsel appearing on behalf of the applicant and Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Rahul Agarwal learned counsel appearing on behalf of the opposite party no.2 and the learned AGA representing the State.
The facts of the case emerging from the prosecution in a short conspectus is that the applicant who was holding the post of Accountant in the office of U.P.S.I.D.C was prosecuted in respect of the offence under section 409 IPC pursuant to the first information report lodged by the respondent no.2 on 14.7.2005 on the ground that TA document of the applicant for the year 1997 to 1999 was demanded . It was discovered that the aforesaid documents voucher and other related dossiers were missing from the counter foil of the department thus the applicant was charged for the act of misappropriation of government fund and usurping the same for personal interest. The applicant stood for trial and the trial court convicted the applicant on 23.1.2016 and 27.1.2016 in Case No. 10596 of 2009 arising out of Case Crime No. 519 of2005 under section 409 IPC by the court of Addl. Chief Metropolitan Magistrate (IInd) Kanpur Nagar to undergo six years rigorous imprisonment with fine of Rs. 5000/- In default of payment of fine, the applicant had to undergo one year additional simple imprisonment.
The aforesaid order of conviction and sentence was assailed by the applicant by way of filing Criminal Appeal No. 15 of 2016 before the court of Sessions Judge Kanpur Nagar under section 374 (3) A Cr.P.C. An application supported by affidavit dated 28.1.2016 was moved with a prayer to release the applicant on bail during the pendency of appeal. The said application was rejected by the learned Sessions Judge vide order dated 4.2.2016.
After rejection of the said application, another application under section 391 Cr.P.C. was moved before the lower appellate court on the ground that the applicant was not afforded adequate opportunity to confront his case in defence and the opportunity has been declined in hurried and mechanical manner and the judgment has been pronounced by the trial court in a very casual way. There are certain clinching and corroborative materials which go to prove that file and record has been misplaced from the office which were never in his possession during the relevant period and the applicant has been made scape goat merely on account of internal politics of the department. The applicant has neither misappropriated nor embezzled any amount which can be verified by summoning the record from the UPSIDC Head Office Kanpur Nagar. The documents are available with the office memorandum dated 11.5.2000. On the complaint of R.K.Tiwari against the applicant, departmental enquiry was initiated and the report was submitted on 31.1.2005 and 1.6.2005 which was sent to its Managing Director who has found that no charge is proved against the applicant ,therefore, different enquiry reports which are lying in the office of UPSIDC Kanpur Nagar and concerned officers may be summoned for the proper decision of the case. Besides summoning the record, enquiry officer Pratap Singh, General Manager (Law) and R.K.Yadav Junior Engineer UPSIDC are also essentially required to be summoned. The applicant has also report of the RTI which is to be summoned, photo copy of which has been brought on record so that the appeal be heard on merits. The aforesaid application under section 391 Cr.P.C. moved on behalf of the applicant was rejected vide impugned order dated 18.4.2016 by Additional District & Sessions Judge Kanpur Nagar The lower appellate court after considering the limitation as provided under section 391 Cr.P.C. and after perusing the trial court record, found that the applicant was given ample opportunity to adduce evidence. It has been specifically recorded that on 8.1.2016, the applicant was allowed to adduce evidence . On 13.1.2016, the applicant had filed process fee of summons on 16.8.2016 and the opportunity to adduce evidence was closed by the trial court. There was order of the High Court dated 8.8.2014 for expeditious disposal of the case. The lower court had granted opportunity on 19.1.2015, and 30.1.2015 but the applicant was seeking adjournment. On 30.11.2015, last opportunity was given fixing 15.12.2015. On 23.12.2015, it was recorded by the trial court that defence has not adduced any evidence . Even then in the interest of justice, again opportunity was given to adduce evidence to the defence on 8.1.2016. The learned lower appellate court held that from the perusal of entire record of the trial court, it is evident that ample opportunity was afforded to adduce evidence to the defence and as such it was not required to summon any document from the office of UPSIDC at this stage as permission cannot be allowed for reconsideration. Thus the application under section 391 Cr.P.C. was dismissed by impugned order dated 18.4.2016 by the Additional District Judge Court No.10, Kanpur Nagar relying upon the decision rendered in the matter of Sheo Balak Rai and others Vs. State of Bihar 1986 Cr.L.J.1727 and Mahfooz Husain Vs. State of Uttarakhand through District Magistrate 1306 Uttarakhand High Court 2011 Regal Eagel, fixing the case for argument on 22.4.2016.
It is submitted by the learned counsel for the applicant that the trial court has decided the case against the applicant in a very hot haste and hurried manner without following due process of law. Even opportunity for final arguments have been closed. Learned lower appellate court has rejected the application moved under section 391 Cr.P.C. on technical grounds that introducing the documents at this stage the laches cannot be rectified. The original documents which will go to the root of the case was necessary to be summoned before the lower appellate court to give a fair opportunity to prove innocence of the applicant which has been illegally denied by rejecting the application by the order impugned. Merely because there was direction of the High Court to the trial court to decide the case in utmost expeditious manner, the trial court as well as the lower appellate court cannot ignore the principle of law for deciding a case against the applicant and as such this Court may direct the lower appellate court to take further evidence in pursuance of the application under section 391 Cr.P.C. for the just decision of the case.
Per contra learned counsel for the complainant and learned AGA confronted the contention raised by the learned counsel for the applicant stating that the applicant has adopted circuituous device of delaying and stalling the proceedings of the court below on one ground or other . The application which has been moved under section 391 Cr.P.C. has been rejected on the basis of appreciation of entire material on record and considering the material fact that the applicant has not only delayed the proceedings of the trial court but also failed to follow the direction whereby he was given ample opportunity to adduce evidence and also to argue the case on merits. The application under section 391 Cr.P.C. has been moved so as to stall the proceedings before the court below and the same has rightly been rejected with detailed findings that the same cannot be allowed at this stage. When the appeal is argued on merits, the court would apply its wisdom that if certain records are required for consideration, he would direct for producing the record and shall adopt the procedure as prescribed under the Code of Criminal Procedure. In the garb of challenging the order impugned, hearing of the appeal has been allowed to continue but the delivery of judgment has been stalled which is evident from the order dated 26.5.2016 passed by another Bench of this Court. The order dated 26.5.2016 has been extended from time to time. On the one hand the applicant is raising the issue for consideration of the recall of witnesses and adducing the evidence invoking the power under section 391 Cr.P.C before the court below and on the other hand after the bail application was rejected by the court below . The applicant who has further opportunity of moving second and third bail aplication before the court below has filed before this Court the revision, application under section 482 Cr.P.C. and lastly the application under section 389 (2) Cr.P.C.adopting the device of being released on bail and to keep the hearing of the appeal in doldrum. It is within the domain lower appellate court to take additional evidence who shall do so if think it appropriate unless it has heard the appeal on merits. There is nothing in the provision limiting the lower appellate court to take additional evidence at the subsequent stage during the pendency of appeal hence the application under section 482 Cr.P.C. is liable to be rejected.
Having considered the submission advanced by the learned counsel for the parties, this court does not see any manifest error in the order passed by the court below whereby application moved under section 391 Cr.P.C has been rejected as moved by the applicant. The conviction awarded by the trial court to the applicant/appellant has been assailed before the lower appellate court and from the order it is evident that the applicant was afforded ample opporutnity to adduce the evidence. This Court is conscious of the fact that section 391 Cr.P.C entitles the appellate court to take additional evidence itself or direct the subordinte court to record additional evidence. This section forms an exception to the general rule that an appeal must be decided on evidence which was before the trial court. It invests the appellate court with a specific power to take additional evidence and it provides for the machinery through which that power is to be exercised. The power is to be exercised if the additional evidence is to be necessary for which the reasons has to be recorded. At the same time, this power should not be exercised to remove the defect or lacunae either in the prosecution case or in defence case. On appreciation of evidence, if the lower appellate court comes to the conclusion that evidence sought to be summoned clinches the matter then it may allow to call for additional evidence which will explain or clear up the prosecution viz.a.viz defence case. There is a discretion to admit or not to admit the additional evidence which lies within the domain of lower appellate court on the appreciation of evidence. The appellate court cannot decide whether additional evidence should be admitted unless it has heard the appeal on merits. Section 391 Cr.P.C. clothes the court with a power to effectively decide the appeal if the appellate court consider additional evidence to be necessary. The provisions of section 386 and 391 Cr.P.C have to be harmoniously considered and followed in the light of additional evidence as well. The lower appellate court has to first find out whether the evidence on record is sufficient and then whether nature and quality of evidence sought to be adduced is relevant or the same is with the object of filling up lacunae. At the same time section 391 of the Code would not be applicable when the prosecution or the defence having had ample opportunities to produce evidence before the trial court has failed to do so as in the instant case now the applicant cannot complain that he had not been given reasonable or the proper opportunity.
Having considered the rival submission advanced by the learned counsel for the parties, this Court is of the view that the order passed by the court below dated 18.4.2016 in Criminal Appeal No. 15 of 2016 (B.K.Tiwari Vs. State of U.P.) does not suffer from any infirmity or perversity requiring interference by this Court. The application is bereft of merits and is accordingly dismissed.
However, the lower appellate court shall decide the appeal on its own merit uninfluenced by any observation made here-in-above.
Order Date :- 20.1.2017 Naim