Satish Chandra vs State Of U.P. And Another
2021 Latest Caselaw 10438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 10577 of 2020
 

 
Applicant :- Satish Chandra
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amir Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Agarwal,J.

1. Mohd. Asif, learned counsel for the applicant.

2. This criminal misc. application under section 482 Cr.P.C. has been filed being aggrieved of order dated 19.10.2019 passed by learned Additional District & Sessions Judge, New Court, Moradabad in Criminal Appeal No 13 of 2014, whereby learned Additional District & Sessions Judge has rejected an application under section 391 CrP.C.

3. Applicant's contention is that he has already undergone six years sentence awarded by the trial court, as appeal is pending since 2014. However, new counsel has advised him to move an application for summoning certain documents so to lead additional evidence and that fact is mentioned in para-9 of the affidavit supporting to present application. On such premise, it is submitted that in the interest of justice, this application be allowed.

4. Reliance is placed on the judgment of the Supreme Court in case of Brig. Sukhjeet Singh (Retd) MVC Vs. State of Uttar Pradesh and others, reproduced from 2019 Law Suit SC 72, wherein placing reliance on para-14, it is read over that power to take additional evidence under section 391 is, thus, with object to properly decide the appeal by the appellate court to secure ends of justice.

5. Scope and ambit of Section 391 Cr.P.C. came for consideration before the Supreme Court in case of Rajeswar Prasad Misra Vs. State of West Bengal and another, 1965 AIR (SC) 1887, in paras-8 and 9 of that judgment delivered by Hon'ble Justice Hidayatullah, on behalf of the Bench which is reproduced here as under:

"8. Since a wide discretion is conferred on appellate courtsm, the limits of that courts; jurisdiction must obviously be dictated by the exigency of the situation and fair play adn good sense appear to be the only safe guides. There is, no doubt, some alalogy between the power to order a retiral and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the reseblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.

9. Additional evidence may be be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said 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. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retiral or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise"

6. After hearing counsel for the applicant and going through the material available on record, it is evident that an application under section 391 Cr.P.C. was moved on 10.11.2018, and application concerned which has been filed as Annexure-3 to the present application is reproduced as under:

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??? ????????? ?? ?? ??? 22.4.04 ?? 29.10.04 ?? ?? ???? ?? ???? ???? ?? ??? ??? ??? ???? ????, ??????? ???? ??? ?? ???? ??????? ?? ???? ???? ???? ???? ??????? ??? ???? ?? ???? ?????? ?????

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7. Ground 9 which has been taken in the affidavit is reproduced as under"

"That upon case briefing, the newly engaged counsel informed the applicant, that materials as evidences from the Malkhana, police station - Katghar, District Moradabad has come before the concerned courts, during the intervening period form 22.4.2004 to 29.10.2004 which was the intervening period when the applicant was sent upon transfer to Bijnor and then was called back to Moradabad."

8. Learned Additional Sessions Judge has recorded from the record that present applicant was given an opportunity to produce defense evidence, but he refused to give any evidence before the trial, and therefore on 2210.2013 in the margin, it was specifically mentioned that accused does not wish to give any evidence and defense evidence be closed. Thereafter defense evidence was closed and matter was decided.

9. Once the applicant chose to close evidence and expressed his willingness to not to lead any evidence, petitioner was required to justify the circumstances under which he was seeking production of additional evidence.

10. Even in case of Rajeswar Prasad Misra (Supra), the Supreme Court has categorically mentioned that the power of calling for additional evidence under section 391 must be exercised sparingly and only in suitable case. Once such action is justified then there is no restriction on the ground on which evidence may be received. It may be formal or substantial.

11. Thus ratio of law is that applicant moving an application under section 391 Cr;P.C. has to justify his action. But perusal of application under section 391 does not give any justification for seeking production of evidence under section 391 Cr.P.C. Thus the court below has not committed any error in placing reliance on the judgment of Supreme Court in Ashok Ishering Bhutia Vs. State of Sikkim (2011) 4 SCC 402 and law laid down by Allahabad High Court in case of Wasiullah Vs. State of UP and others; 2018 (3) LJ - 543 (DB), wherein it is held that additional evidence should be called for where ends of justice are going to be adversely affected and that step should be taken only under exceptional circumstances.

12. Applicant has failed to make out any exceptional circumstance and, in fact, pleadings in para-9 of the affidavit do not support contents of application under section 391. Neither there is mention of the name of the counsel in para-9 of the affidavit nor to date on which such advice was received by the applicant to move such application under section 391 Cr.P.C. and thus cryptic description of facts and non mentioning of as to on what circumstances applicant / accused had decided to not to lead any evidence before the trial court or what prevented him from leading evidence before the trial court, I am of the opinion even when law laid down in case of Rajeswar Prasad Misra (Supra) is taken into consideration then also applicant has failed to make out a case for justifying his action. Thus application fails and is dismissed.

Order Date :- 17.8.2021

S.K.S.