Document Fragment View
Fragment Information
Showing contexts for: section 391 of criminal procedure code in Narender Singh vs Bhim Singh on 23 December, 2019Matching Fragments
evidence must not ordinarily be permitted if the party has had a fair opportunity, but has not availed of it, unless the requirement of justice dictates otherwise.
9. In Abdul Latif and others vs. State of Uttar Pradesh reported in (1978)1 SCC 466 the Apex Court has re-iterated that additional evidence sought to be lead must serve useful purpose for arriving at just decision of the case.
10. Referring Rajeshwar Prasad Mishra's case (supra), the Apex Court in Rambhau vs. State of Maharashtra, reported in (2001)4 SCC 759 has held that Section 391 Cr.P.C. forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the power, being an exception, shall always have to be exercised with caution and circumspection, so as to meet the ends of justice and this power is not to fill up the lacuna, but to subserve the ends of justice. The Apex Court also held that a very wide discretion in the matter of obtaining additional evidence is available to the Court in terms of Section 391 of Cr.P.C, but additional evidence also cannot and ought not to be received in such a way so as to cause any prejudice to the accused and the order must not ordinarily be made if the prosecution has had a fair opportunity, but has not availed of it. The same principle is applicable in case of application filed by accused.
11. Referring Rambhau's case, the Apex Court in Zahira Habibulla H. Sheikh'vs. State of Gujarat reported in (2004)4 SCC 158, has re-iterated that object of Section 391 Cr.P.C. is not to fill in the lacuna, .
but to subserve the ends of justice and Court considering the salutary principles shall also keep in view that the wide discretion conferred on the Court has to be exercised judiciously, as the legislature has put safety valve by requiring recording of reasons. It is further observed that Section 391 Cr.P.C. is in the nature of exception to Section 386 Cr.P.C. and the necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it, is not before it or that some evidence has been left out or erroneously brought in and in all cases, it could not be laid down as a rule of universal application, that the court has to first find out whether the evidence already on record is sufficient and the nature and quality of the evidence on record is also relevant and this provision is a salutary provision which clothes the Court with power to decide an appeal effectively and being an exception to general rule, it must also be exercised with great care in consonance with the legislature intent for enacting Section 391 Cr.P.C. which empowers the Appellate Court to ensure that justice is done between the parties.
13. From the provisions of Section 391 Cr.P.C. and ratio of law laid .
down by the Apex Court, it emerges that Section 391(1) Cr.P.C. empowers the Appellate Court, dealing with any appeal under Chapter XXIX of Cr.P.C. either to take evidence itself or direct it to be taken by the Courts subordinate to it, but after recording the reasons, if it thinks that additional evidence is necessary. Undoubtedly, the Courts are there for dispensation of justice and necessary reasons for taking additional evidence at appellate stage must be in the interest of justice and for a just and proper decision of the Appellate Court, as not only the primary, but sole purpose of judicial machinery, is to impart justice. Therefore, provisions of this Section should be invoked only for the ends of justice and not for any other reason. This Section is also not intended to remedy the negligence or laches of the party. It is also settled that though power is unfettered, but the recourse to exercise of these powers are not to be made ordinarily in a situation where either of the parties did not avail the opportunity to adduce evidence and accused should not be allowed to adduce the defence evidence at appellate stage, where he has failed to adduce the evidence despite granting of several opportunities. Appellate Court should not admit additional evidence where the party had opportunity to file the same before the trial Court, unless the requirement of justice dictates otherwise.
15. By filing application under Section 391 Cr.P.C. petitioner/accused has sought permission to lead additional evidence by examining the Clerk/Manager of the H.P. State Cooperative Bank of concerned Branch along with record of specimen signatures of the petitioner/accused and account opening form of petitioner/accused and also to examine his wife Smt. Reena Devi from whom cheque in question as blank cheque, has been alleged to have been obtained by the respondent. Evidence sought to be produced now in appeal was very much in existence during the trial and the petitioner/accused was well aware of the same, but except disputing the issuance of cheque/cheque book and his signatures on the cheque in question verbally, petitioner/accused had not made any endavour to substantiate his version by leading evidence on record, despite existence of the provision of severe onus under Section 139 of Negotiable Instruments Act.