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R. V. Nathan vs A. P. Mahesh on 8 January, 2020 cites

Charanjeet Gaba vs Arjun Lal Ahuja on 27 October, 2015

11. Learned counsel for the petitioner/complainant has relied upon the judgment of the Hon'ble Delhi High Court in the case of Charanjeet Gaba Vs. Arjun Lal Ahuja reported in Laws (DLH) 2012 3 624 wherein set aside the order passed by the first Appellate Court and remitted the matter back for fresh consideration for recording additional evidence in the manner indicated under Section 391 of Cr.P.C. I respectfully agree with the principles laid down by the Hon'ble Delhi High Court and in view of Section 391 of Cr.P.C., the first Appellate Court ought to have allowed I.A.Nos.4 and 5 filed under Section 391 of Cr.P.C and the first Appellate Court also being the continuation of trial Court can record additional evidence by calling the parties before the Court and dispose of the appeal based on the additional evidence or by keeping in abeyance the order of conviction 10 and sentence passed by the trial Court can send the parties before the trial Court for recording additional evidence and after receipt of the evidence recorded by the trial Court and to dispose of the appeal on merits by relying upon the additional evidence. Therefore, setting aside the judgment of conviction and sentence passed by the trial Court is not correct and also the first Appellate Court has committed error in remitting back both I.A.Nos.4 and 5 to the trial Court as well as setting aside the judgment of conviction and sentence passed by the trail Court. Therefore, the order passed by the first Appellate Court is liable to be set aside. Hence, I pass the following ORDER The criminal revision petition is allowed. The order dated 22.08.2019 passed by LXXII Additional City Civil and Sessions Judge (CCH-73) in Crl.A.No25225/2018 by setting aside the judgment of conviction and sentence dated 02.11.2018 passed by the LVII 11 Addl. Chief Metropolitan Magistrate in C.C.NO.53556/2016 is hereby set aside. The first Appellate Court is directed to dispose of I.A.Nos.4 and 5 filed under Section 391 of Cr.P.C and also follow the procedure under Section 391 of Cr.P.C either by recording the evidence itself or sending the matter to the Magistrate Court for recording the evidence by keeping in abeyance of order of conviction and sentence passed by the trial Court. The first Appellate Court is also directed to dispose of the matter as early as possible.
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