TMI Blog2019 (11) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... he omission to place on record the said documents before the trial court, is clearly in the realm of lacuna for reasons more than one. In the facts of the case, no justifiable ground is made out for such a course, which would have been permissible had there been a resultant failure of justice. Thus, to the extent of those documents, excluding the reply to the demand notice, the learned Sessions Judge was within his rights in rejecting the application. As the factum of reply to the demand notice was indisputable, in my considered opinion, to prevent failure of justice, the accused can be permitted to place the said reply on the record of the Court. However, this would not be construed as an opportunity for the accused to lead evidence aliende in proof of the correctness of the contents of the said reply. Thus, to restrict the powers of the appellate court to receive only oral evidence and exclude documentary evidence from its purview, would be in complete derogation of the letter and spirit of the provisions contained in section 391 of the Code - Application allowed in part. - CRIMINAL REVISION APPLICATION NO. 402 OF 2017 IN CRIMINAL APPEAL NO. 425 OF 2015 - - - Dated:- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to adduce additional evidence in the form of the documents, including copies of the complaint lodged by the accused against the complainant with Bowbazar Police Station, Kolkata, receipts and purchase bills to show excess charges allegedly levied by the complainant, and the copy of the reply dated 4th January 2013 to the demand notice. It was asserted that though the documents were in existence during the trial on account of inadvertent omission, the said documents could not be produced on the record of the Court. The accused had, however, put questions to the complainant during the course of cross-examination, in his defence, which the documents, now sought to be produced would bolster up. (d) The learned Sessions Judge was, however, not impressed with the grounds sought to be put-forth by the accused seeking permission to lead additional evidence, in appeal. The learned Sessions Judge was of the view that the reason of inadvertent omission to produce the documents on record does not merit acceptance. The accused cannot be permitted to have a fresh trial. Hence, the application came to be rejected. 4. Being aggrieved by and dissatisfied with the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused before the trial court appeared in support of the appeal before the court of sessions. The delay in seeking permission to lead additional evidence was also pressed into service to question the bonafide of the accused. In these circumstances, no fault can be found with the impugned order, which also records that the applicant had preferred the application with a view to delay the disposal of the appeal, submitted the learned counsel for the respondent No.2. 9. The learned counsel for the applicant joined the issue of delay by placing reliance upon a judgment of the Supreme Court in the case of State of Gujarat Vs. Mohanlal Jitamalji Porwal Anr. (1987) 2 SCC 364 , wherein the prosecution had sought to lead evidence in proof of certificate issued by the Mint Master, at an appellate stage, as the said document was not formally proved in evidence before the trial court. An objection was raised on the ground that there was delay of about six years in preferring the application. The Supreme Court set aside the order of the High Court of rejection of the prayer to lead additional evidence observing, inter-alia, as under :- 3 ..The High Court rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion that the additional evidence is necessary. Two, the appellate court, if it admits the additional evidence, shall record reasons for the same. The expression, if it thinks additional evidence to be necessary indicates that it is not the right of a party to lead the evidence, but the evidence ought to be such which the appellate court deems necessary to be led for a just decision of the case. The emphasis appears to be more on the requirement of the court to promote justice rather than the desire of a party to lead evidence in support or negation of the charge. Undoubtedly, the phraseology of sub-section (1) of section 391 does not indicate the circumstances in which the discretion is to be exercised. However, having regard to the fact that the Code contains elaborate provisions for a fair trial by the trial court and the matter reaches the appellate court after conclusion of the trial, the recourse to the provisions contained in section 391 has to be made sparingly and in deserving cases where the dictate of justice commands. 12. A profitable reference can be made to a three Judge Bench judgement of the Supreme Court in the case of Rajeswar Prasad Misra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the accused. This Court in the case of Rejeswar Prasad Misra v. State of West Bengal and another (AIR 1965 SC 1887) in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 3 Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependant upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society. 4 Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and the Legislature had put the safety valve by requiring recording of reasons. (emphasis supplied) 15. The aforesaid pronouncements were again followed by the Supreme Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim (2001) 4 SCC 402 and again the extraordinary and exceptional nature of the power to admit additional evidence, at the appellate stage, was underscored. The observations in paragraphs 28 and 29 read as under : Additional Evidence: 28 Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29 The primary object of the provisions of Section 391 Cr.P.C. is the preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Appellant/Applicant and the reply dated 4th January 2013 given by the Learned Advocate for the Appellant/ Applicant of the demand notice dated 12th December 2012 issued by the Learned Advocate for the Complainant/Respondent No.2 to the Appellant/Applicant. 17. The aforesaid contentions (underlined) in the application belie the endeavour of the learned counsel for the applicant/accused that the inadvertence on the part of the accused advocate was not the sole ground for seeking permission to lead additional evidence. It is not the case of the accused that the documents were not in his possession or power. Nor the accused claimed that the documents, though in existence, could not be tendered before the learned Magistrate due to any other hindrance. The submission of the learned counsel for the applicant that the defence, (which the documents now sought to be tendered represent) was already taken during the course of cross examination, by way of suggestions to the witness of the complainant, in the circumstances of the case, does more harm than good to the cause of the submission of the accused. From the perusal of the cross examination of the witness of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those documents were not in existence or he was not aware of the contents of those documents. Secondly, the accused having taken the defence by putting the questions in the cross-examination to the complainant s witness cannot be heard to say that the documents could not be produced on account of inadvertence. Thirdly, the accused had the opportunity to make amends either by tendering those documents during his examination under section 313 of the Code or by leading evidence in his defence. Lastly, the endevour of the accused to tender those documents and lead evidence, at this stage, conceivably for the purpose of dislodging the presumptions contained in sections 118 and 139 of the Act, would reopen the entire trial, partaking the character of retrial so far as the burden upon the accused to overturn those presumptions. In the facts of the case, no justifiable ground is made out for such a course, which would have been permissible had there been a resultant failure of justice. Thus, to the extent of those documents, excluding the reply to the demand notice, the learned Sessions Judge was within his rights in rejecting the application. 21. As regards the reply to the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the word Evidence means and includes :- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. Thus, a document tendered for the perusal of the Court is as much evidence as the statement made before the Court. Thirdly, as extracted above, the three Judge Bench of the Supreme Court, in the case of Rajeswar Prasad Misra (Supra) has observed that once the Court comes to the conclusion that a case for adducing additional evidence is made out, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. Thus, to restrict the powers of the appellate court to receive only oral evidence and exclude documentary evidence from its purview, would be in complete derogation of the letter and spirit of the provisions contained in section 391 of the Code. 24. The upshot of the aforesaid consideration is that the application deserves to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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