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Showing contexts for: under section 391 of criminal procedure code in Pankaj And Ors vs State Of Rajasthan Through P P on 7 January, 2019Matching Fragments
Learned counsel for appellants has opposed the application. It is submitted that Section 391 Cr.P.C. can be invoked only to bring certain documents on record, as given under Section 293 Cr.P.C.
The evidence under Section 391 Cr.P.C. is subject to the provisions of Chapter XXIII. The prosecution wants to recall the witnesses apart from production of documents. It is not permissible, looking to the nature of documents. The oral evidence cannot be produced under Section 391 Cr.P.C.
Learned Public Prosecutor was wise enough to realise the inadvertence of prosecution in the trial. In view of the above, the application under Section 391 Cr.P.C. was filed immediately after realising the aforesaid. We find that in the interest of justice and to bring home the truth of the case, the delay is not fatal in this case. Accordingly, we are unable to accept even second argument of learned counsel for appellants.
The third argument is in reference to Section 391(4) Cr.P.C. It is submitted that an order under Section 391 Cr.P.C. can be passed subject to provisions of Chapter XXIII. Learned counsel for appellants has made reference of Section 293 Cr.P.C. It is to show that only reports of certain government scientific experts can be produced by way of evidence at the appellate stage. We are unable to accept the argument aforesaid.
The purpose of sub-section (4) of Section 391 Cr.P.C. is nothing but to allow evidence at the appellate stage in the manner provided under Chapter XXIII. Chapter XXIII Cr.P.C. provides the manner of production of the evidence. It does not rule that evidence cannot be produced other than what has been given under Section 293 Cr.P.C. Not only oral but documentary evidence can be taken at the appellate stage, as provided under Chapter XXIII Cr.P.C. The issue aforesaid has been dealt with by this court in the case of Sarita & Anr. Vs. Munni Devi, SB Criminal Misc. Petition No.4718/2014, decided on 24 th April, 2015. The judgment aforesaid was given when a reverse argument was raised to urge that under Section 391 Cr.P.C., only oral evidence can be taken (8 of 8) [CRLA-720/2012] and not the documentary evidence. This court, after referring the definition of "evidence" given under Section 3 of the Indian Evidence Act, 1872, held that evidence means oral as well as documentary evidence and, accordingly, allowed the application under Section 391 Cr.P.C. In view of the above, we are of the opinion that reference of Chapter XXIII under Section 391(4) Cr.P.C. cannot be made limited in reference to Section 293 Cr.P.C. but has to be in reference to Chapter XXIII Cr.P.C. as a whole.
With the aforesaid, Application (Inward No.92403/2018) under Section 391 Cr.P.C. is allowed. Let summons be issued to those witnesses on their present addresses.
At this stage, learned counsel for appellants prayed for sending the case to the trial court for recording of the evidence. We are unable to accept the said request because Section 391 Cr.P.C. permits recording of the evidence by the appellate court also and, accordingly, we have issued summons for calling of the witnesses to record their statements under Section 391 Cr.P.C. and also for the documents. It is, otherwise, in the interest of parties as it would curtail further delay in the matter. After service of summons, the accused would also be called as evidence would be recorded in their presence.