TMI Blog2021 (12) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court has also to see as to whether the evidence proposed to be led is relevant. The test to be applied is as to whether evidence sought to be advanced is essential for just decision of the case. Adverting to the facts of the instant case, as already noted, petitioner proposes to examine witness, namely, Murtaza Ali, who is stated to have deposed about the procedure adopted during the course of sampling and sealing. The said statement has been made by the aforesaid witness in the departmental enquiry that was conducted pursuant to the orders of the trial court in the judgment which is subject matter of appeal before the Appellate Court. The question arises as to whether petitioner can be allowed to do so at the appellate stage. So far as the opinion of the experts is concerned, the same is a relevant fact in terms of Section 45 of the Evidence Act. What the petitioner seeks to produce on record is opinion of an expert who has published a research paper on effects of Formalin on the test results of samples of milk. An expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court with scientific test criteria to test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 59. 4) The aforesaid judgment of the trial court came to be challenged by the petitioner by way of an appeal before the Principal Sessions Judge, Budgam (hereinafter referred to as the Appellate Court). During pendency of the appeal, petitioner filed an application under Section 428 of the J K Cr. P. C (which corresponds to Section 391 of the Code of Criminal Procedure, 1973), seeking permission to produce additional evidence. The said application came to be dismissed by the learned Appellate Court vide the impugned order. While dismissing the application, the learned Appellate Court has observed that the documents which the petitioner seeks to place on record and the evidence which he seeks to produce is not relevant and admissible. It has been also observed that petitioner had all the available opportunity to produce this evidence before the trial court which he failed to do and now he cannot be permitted to produce the said evidence. 5) The petitioner has challenged the impugned order on the ground that the conclusions drawn by the learned Appellate Court are not correct as it was not a case where the petitioner wanted to fill up lacunae or gap in the evidence. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Judicial Magistrate or, when the Appellate Court is the High Court, by a Court of Session or a Judicial Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken; but such evidence shall not be taken in the presence of jurors. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry. 9) From a perusal of the aforesaid provision, it is clear that it is the discretion of the Appellate Court to take additional evidence at appellate stage. The only requirement is that such additional evidence must be necessary and the court should record its reasons. 10) The aforesaid provision has been interpreted and dissected by Supreme Court in a number of judgments. In Zahira Habibullah H. Sheikh anr. vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvict by sending him to jail to rot at least for 14 years. Such a statement would also be completely beyond the legal framework but can it be said that in light of such a development the convicted accused may not ask the High Court for recalling the Approver for further examination. 12) Again, in Sukhjeet Singh vs. The state of Uttar Pradesh and Ors., (2019) 16 SCC 712, the Supreme Court, after noticing its earlier decisions on the subject, held that there are no fetters on the power under Section 391 of Cr.P.C. of the Appellate Court. The Court went on to hold that all powers are conferred on the Court to secure ends of justice, the ultimate object of judicial administration is to secure ends of justice and Court exists for rendering justice to the people 13) From the foregoing enunciation of law on the subject, it is clear that it ultimately is the discretion of the Appellate Court as to whether additional evidence can be permitted to be adduced at the appellate stage but such discretion has to be exercised on recognized principles evolved over a period of time by the case law on the subject. The only consideration which has to be kept in mind by the Appellate Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been placed on record by petitioner after obtaining the same through RTI. It is correct that proceedings conducted in a departmental enquiry do not have a bearing upon criminal proceedings but then what the petitioner is seeking to achieve by examining the witness, namely, Murtaza Ali is to bring to the fore the manner in which sampling and sealing has taken place in the instant case. Murtaza Ali, admittedly, has not been examined as witness before the trial court and he, during the departmental proceedings, has made certain observations and statements as regards the manner in which the sample was collected and sealed. His statement, therefore, is relevant to the case at hand. Admittedly, departmental enquiry was conducted after the decision of the trial court, as such, it would not have been in the knowledge of the petitioner that Murtaza Ali was in know of the facts relevant to the case. Therefore, there was no occasion for the petitioner to produce the said witness in defence during trial of the case. The observations of the Appellate Court that petitioner had enough opportunity to produce the said person as a witness during trial is certainly off the mark. 17) Regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roneous because any research which throws light on a relevant fact and has bearing upon a case can always be taken into account, more particularly when the judgment of the trial court has not attained finality as yet, inasmuch as appeal is a continuation of the trial. 20) The foregoing discussion clearly leads to the conclusion that the petitioner is seeking permission to produce evidence which is relevant to the issue pending before the Appellate Court and there was no occasion for the petitioner to produce this evidence during trial of the case as the same has come to his notice only after conclusion of the trial. The evidence sought to be introduced by the petitioner is not only necessary for the just decision of the appeal but shutting out the same would result in failure of justice. It is not a case where petitioner is trying to fill up the lacunae left during the trial of the case but it is a case where petitioner is trying to place on record the evidence which has come to his notice after the conclusion of trial and which has a definite bearing upon decision of the case. 21) In view of the foregoing analysis and discussion, allowing the impugned order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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