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2019 (1) TMI 1794 - SUPREME COURTMaintainability of application - application filed before the Session Judge in the criminal appeal filed by him against the conviction order - power to take additional evidence - Section 391 Cr.P.C. - whether the Session Judge committed error in not exercising power under Section 391 Cr.P.C. to permit the appellant to lead additional evidence? - HELD THAT:- 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 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, [1965 (5) TMI 35 - SUPREME COURT]. 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. There are no fetters on the power under Section 391 Cr.P.C. 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. Whether present was the case for exercise of the power by the Appellate Court under Section 391 Cr.P.C. to permit adducing the additional evidence at the appellate stage? - HELD THAT:- The trust is admittedly the owner of agricultural land in Village Bichaie. The complainant has been in possession of large number of agricultural lands as thekedar of the trust since 1975, according to his own case, which he even mentioned in the First Information Report. The application under Section 391 Cr.P.C. was made in the Appellate Court to accept certified copy of the Trust Deed dated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 and permitting the appellant to prove the said document by leading oral evidence. When the Appellate Court has been given power to lead additional evidence, the observation that it is belated stage was uncalled for. Appellant was convicted on 07.10.2013 and appeal was immediately filed on the next date, i.e. 08.10.2013. It was not even mentioned by the High Court that there is anything on record to indicate that appeal was being heard and at this stage the application under Section 391 Cr.P.C. was filed, calling the application as filed at belated stage itself was unjustified. Further, the observation of the High Court that application was filed with some ulterior malafide motive also does not commend us. The appellant had already been convicted by the trial court, the charge was cheating the complainant with regard to sale of agricultural land of the trust. The second Trust Deed dated 18.10.1989, which was on record and referred to by the trial court and was refused to look into on the ground that it was not proved by the appellant. Filing of the application before the High Court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence can in no manner be said to be malafide motive of the accused, who had been convicted in the appeal, has right to take all the grounds and also lead additional evidence, which in accordance with the Appellate Court is necessary in deciding the appeal. Thus, Appellate Court committed error in not exercising jurisdiction under Section 391 Cr.P.C. in accepting the second Trust Deed dated 18.10.1989 and the Resolution No.112 dated 18.10.1989 and refusing the appellant to lead evidence to prove the documents. Appeal allowed.
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