Bombay High Court
Dhanraj Rajaramji Nagdive vs State Of Maharashtra Thr Pso Ps Gadge ... on 9 September, 2025
2025:BHC-NAG:8839
Judgment 1-Cr.WP-694-2025
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 694 of 2025
...
Dhanraj s/o. Rajaramji Nagdive,
Age 50 yrs, Occ: Business,
R/o. Frezarpura, District Amravati.
... PETITIONER
--VERSUS--
1] State of Maharashtra,
Through P.S.O.,
Police Station Gadge Nagar,
District Amravati.
2] Rambhau s/o. Hambarji Patil,
Age 57 years, Occ: Agriculturist,
R/o. Yashodha No. 1, Amravati,
Taluka & District Amravati.
... RESPONDENTS
-------------------------------------------------------------------------------------
Mr. U.V. Chakravarty, Advocate for the Petitioner.
Ms. S.N. Thakur, A.P.P. for the Respondent No.1/State.
------------------------------------------------------------------------------------
CORAM : M.M. NERLIKAR, J.
DATE : SEPTEMBER 09, 2025.
PIYUSH MAHAJAN
Judgment 1-Cr.WP-694-2025
2
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Ms. S.N.
Thakur, learned A.P.P. waives service for Respondent No.1-
State. With consent of learned Counsel for the parties, the
petition is taken up for final hearing.
2. The present Petition is filed under Article 227 of the
Constitution of India read with Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023. The petitioner is praying for
quashing and setting aside the order dated 21/07/2025 passed
below Exh.21 by the learned Sessions Judge, Amravati, in
Criminal Appeal No.100/2023, wherein the application at
Exh.21, preferred under Section 391 of the Code of Criminal
Procedure, 1973, for permission to lead additional evidence by
examining Chandrapal Meshram came to be rejected by the
learned Sessions Judge, Amravati.
3. Brief facts of the case are that, the petitioner filed an
application before the Learned Judicial Magistrate First Class,
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Judgment 1-Cr.WP-694-2025
Amravati, under Section 156(3) of the Code of Criminal
Procedure, seeking direction to register the First Information
Report for the offences punishable under Sections 420, 468,
471, 403 and 406 of the Indian Penal Code, 1860. Accordingly,
the learned Magistrate was pleased to issue directions under
Section 156(3) and on that basis, First Information Report
No.282/2013 was registered against the respondent No.2.
4. It is alleged in the First Information Report that the
petitioner was the Secretary of Pradnya Magasvargiya Gruh
Nirman Sahakari Sanstha, Nimbhora, Amravati, and that
Respondent No.2 was the President of the said Society. On
05/01/2011, the Respondent No.2 sold plot No.8-B to one
Harihar Shankarrao Anasane for a total consideration of
Rs.70,000/-, without obtaining the consent of the members of
the Society, by preparing false and fabricated documents. It is
also alleged that the said plot was allotted to one Chandrapal
Meshram.
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Judgment 1-Cr.WP-694-2025
5. Respondent No.1 - Police Station, after registering
the First Information Report, conducted the investigation, and
upon its completion, filed a charge-sheet before the Learned
Chief Judicial Magistrate, Amravati, bearing No.182/2013
dated 22/05/2013, for offences punishable under Sections 420,
468, 471, 403 and 406 of the Indian Penal Code, 1860. The
case was registered as R.C.C. No.665/2014. Thereafter,
charges were framed against the respondent No.2. The
prosecution led evidence and examined as many as four
witnesses in order to prove the guilt of respondent No.2. The
petitioner was also examined as one of the witnesses, i.e.,
P.W.-1. After concluding the trial, the learned Trial Court was
pleased to acquit respondent No.2 by its judgment and order
dated 20/04/2023.
Aggrieved by the said judgment and order dated
20/04/2023 passed by the Learned Chief Judicial Magistrate,
Amravati, the petitioner preferred an appeal under Section 372
of the Code of Criminal Procedure before the Learned Sessions
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Judgment 1-Cr.WP-694-2025
Judge, Amravati, bearing Criminal Appeal No.100/2023.
6. The petitioner preferred an application at Exh.21
under Section 391 of the Code of Criminal Procedure, on
23/05/2025 seeking permission from the Appellate Court to
lead additional evidence by examining Chandrapal Meshram,
on the ground that the said Chandrapal Meshram was not
examined during the trial, despite being a crucial witness. Not
only that, the Plot No.8-B which was sold by respondent No.2,
was originally allotted to the said Chandrapal Meshram. It is
further stated that, upon perusal of the judgment of the Trial
Court, it is revealed in Paragraph 13 that the Court observed
that the prosecution failed to examine the main witness,
namely Chandrapal, whose plot was sold by the respondent
No.2 to Harihar Anasane. Therefore, Chandrapal Meshram is a
material witness necessary to prove the prosecution case. It is
further stated that for proper adjudication of the matter, it is
necessary to record further evidence of Chandrapal Meshram,
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Judgment 1-Cr.WP-694-2025
and accordingly, prayed to summon and examine Chandrapal
Meshram as witness in the interest of justice.
7. Respondent No.2 filed his reply to the application at
Exhibit-21 and opposed the same. In his reply, it was
contended that a fair opportunity had been granted to the
complainant during the course of the trial. It was further stated
that the complainant was fully aware of all the facts and
circumstances of the case during the trial proceedings.
However, no request was made at that stage to examine
Chandrapal Meshram as a witness. It was contended that the
present application, filed at the stage of arguments in the
appeal, seeking to examine a witness who was available during
the trial, amounts to nothing but an attempt to delay the
proceedings and wastage of valuable time of the Court.
Accordingly, Respondent No.2 prayed for rejection of the
application. The prosecution also filed its reply and submitted
that the charge-sheet does not contain the statement of
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Judgment 1-Cr.WP-694-2025
Chandrapal Meshram. The prosecution adopted the reply filed
by Respondent No.2.
8. I have heard the learned counsel appearing for the
petitioner at length. He submitted that the Police Authorities
did not conduct a proper investigation and deliberately failed to
record the statement of the main witness, Chandrapal
Meshram. The petitioner has every right to file an application
under Section 391 of the Code of Criminal Procedure in the
interest of justice as Section 391 specifically permits for leading
of additional evidence even at the appellate stage. The learned
counsel also drew my attention to the observations made by the
Trial Court in its judgment, wherein it was noted that the
prosecution had failed to examine the material witness,
Chandrapal Meshram. Therefore, it was submitted that in order
to do complete justice, it is necessary to adduce or lead
additional evidence.
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Judgment 1-Cr.WP-694-2025
9. On the other hand, the learned A.P.P. submits that
the petitioner had ample opportunity to raise his grievance
during the course of the trial. It was further stated that the
petitioner was fully aware of the filing of the charge-sheet and
not only that the prosecution has also examined the petitioner
as PW-1, and at no point of time this grievance was raised. The
application is by way of an afterthought, and therefore, the
learned A.P.P. prayed that the present petition may not be
entertained.
10. So far as the law in respect of adducing additional
evidence is concerned, it would be useful to refer to the recent
judgment of the Supreme Court in the case of AjitSinh Chehuji
Rathod VS. State of Gujarat and Another (2024) 4 SCC 453.
The Supreme Court, in Paragraph 8, has held as under:-
" At the outset, we may note that the law is well-
settled by a catena of judgments rendered by this Court that
power to record additional evidence under Section 391 CrPC
should only be exercised when the party making such request
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was prevented from presenting the evidence in the trial
despite due diligence being exercised or that the facts giving
rise to such prayer came to light at a later stage during
pendency of the appeal and that non-recording of such
evidence may lead to failure of justice."
The Supreme Court has summarised the law
regarding additional evidence in the case of Ashok Tshering
Bhutia (2011) 4 SCC 402, in Paragraph Nos.28 to 32, which
reads as under:-
"28. Additional evidence at the 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 prevention of a guilty man's escape
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through some careless or ignorant action on part of the
prosecution before the court or for vindication of an innocent
person wrongfully accused, where the court omitted to
record the circumstances essential to elucidation of truth.
Generally, it should be invoked when formal proof for the
prosecution is necessary. (Vide Rajeswar Prasad Misra v. The
State of West Bengal & Anr., AIR 1965 SC 1887; Ratilal
Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971
SC 1630; Rambhau & Anr. v. State of Maharashtra, AIR 2001
SC 2120; Anil Sharma & Ors. v. State of Jharkhand, AIR
2004 SC 2294; Zahira Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors., (2004) 4 SCC 158; and Sidhartha Vashisht @
Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352).
30. This Court in State of Gujarat v. Mohanlal
Jitamalji Porwal & Anr., AIR 1987 SC 1321, dealing with the
issue held as under:
"5... To deny the opportunity to remove the formal
defect was to abort a case against an alleged economic
offender. Ends of justice are not satisfied only when the
accused in a criminal case is acquitted. The community
acting through the State and the Public Prosecutor is also
entitled to justice. The cause of the community deserves
equal treatment at the hands of the court in the discharge
of its judicial functions. The community or the State is not
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Judgment 1-Cr.WP-694-2025
a persona-non-grata whose cause may be treated with
disdain. The entire community is aggrieved if the
economic offenders who ruin the economy of the State
are not brought to book. A murder may be committed in
the heat of moment upon passions being aroused. An
economic offence is committed with cool calculation and
deliberate design with an eye on personal profit
regardless of the consequence to the community. A
disregard for the interest of the community can be
manifested only at the cost of forfeiting the trust and faith
of the community in the system to administer justice in an
even-handed manner without fear of criticism from the
quarters which view white collar crimes with a permissive
eye unmindful of the damage done to the national
economy and national interest....."
31. In Rambhau (supra), a larger Bench of this Court
held as under:
"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
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Judgment 1-Cr.WP-694-2025
or affected in any way by reason of exercise of power
under Section 391 since the same avoids a de novo trial.
It is not to fill up the lacuna but to subserve the ends of
justice. Needless to record that on an analysis of the Civil
Procedure Code, Section 391 is thus akin to Order 41,
Rule 27 of the Civil Procedure Code."
(Emphasis added)
32. In view of the above, the law on the point can be
summarised to the effect that additional evidence can be
taken at the appellate stage in exceptional circumstances, to
remove an irregularity, where the circumstances so warrant
in public interest. Generally, such power is exercised to have
formal proof of the documents etc. just to meet the ends of
justice. However, the provisions of Section 391 Cr.P.C.
cannot be pressed into service in order to fill up lacunae in
the prosecution's case."
11. Thus, in the light of the ratio laid down by the
Supreme Court, it is necessary to examine the facts of the
present case. Admittedly, the petitioner filed an application
under Section 156(3) of the Code of Criminal Procedure,
praying to register the offence against the respondent No.2.
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Judgment 1-Cr.WP-694-2025
Accordingly, the learned Magistrate, was pleased to issue
direction under Section 156(3) of the Code of Criminal
Procedure, and directed the Respondent No.1 - Police Station to
register the First Information Report. After registration of the
FIR, an investigation was conducted, and thereafter, charge-
sheet came to be filed. The petitioner's name was mentioned in
the particulars of witnesses to be examined at Serial No.1,
however, the name of Chandrapal Meshram does not figure in
the list of particulars of witnesses to be examined. It is further
to be noted that the prosecution has examined the petitioner as
PW-1. Not only that, other witnesses were also examined, and
after considering both oral as well as documentary evidence,
the Trial Court acquitted Respondent No.2-Rambhau Hambarji
Patil. While acquitting the Respondent No.2, the Trial Court
observed that the prosecution failed to examine Shri
Chandrapal Meshram, despite the fact that the plot in dispute
was allotted to him. It is further observed that, considering the
facts and circumstances, Chandrapal Meshram would be
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Judgment 1-Cr.WP-694-2025
material witness, however, the prosecution did not examine
him and accordingly respondent No.2 was acquitted.
12. It is also not in dispute that, the petitioner filed an
appeal against the judgment and order of the Trial Court. After
filing of the appeal, the petitioner preferred Criminal Appeal
No.100/2023. During the pendency of the appeal, the
petitioner preferred an application before the Appellate Court
at Exh.21, seeking permission to lead additional evidence. The
said application came to be rejected by the Learned Sessions
Judge, Amravati, by order dated 21/07/2025, holding that the
grounds cited by the appellant are not sufficient to allow
additional evidence by way of examination of Chandrapal as a
witness.
13. At this juncture, it becomes necessary to consider
whether, in the given set of facts and circumstances, the
petitioner can be permitted to lead additional evidence by
examining Chandrapal Meshram ?
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Judgment 1-Cr.WP-694-2025
14. Since from the beginning i.e. right from the initiation
of prosecution, till the conclusion of trial, the petitioner was
part and parcel of the criminal proceedings. However, at no
point of time, the petitioner either prayed or showed due
diligence to examine Chandrapal Meshram even though the
petitioner was aware about all the facts of the case. The
petitioner preferred an application under Section 156(3) of the
Code of Criminal Procedure in the year 2013. Pursuant thereto,
the First Information Report was registered on 22/05/2013, the
charge-sheet was filed on 21/07/2014, and charges were
framed on 11/02/2021. The present petitioner was examined
by the prosecution on 19/03/2022. After conclusion of the trial,
the judgment was delivered by the Trial Court on 20/04/2023.
Thus, for near about 10 years, the trial remained pending.
During this period no steps/efforts were taken by the petitioner.
It is further necessary to mention at this juncture that, the
petitioner preferred Criminal Appeal No.100/2023 against the
order of acquittal on 11/05/2023 and the application under
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Section 391 of the Code of Criminal Procedure for leading
additional evidence was preferred on 23/05/2025 i.e. almost
after two years. The very fact that, though the appeal was filed
in the year 2023, the application for leading additional
evidence was filed in the year 2025, these facts itself shows that
the petitioner is not diligent in prosecuting the criminal
proceedings.
15. As was observed by the Supreme Court in the case of
AjitSinh Chehuji Rathod (supra), the power to record additional
evidence under Section 391 of the Cr.P.C. should only be
exercised when the party making such request and was
prevented from presenting the evidence in the trial despite due
diligence being exercised or that the facts giving rise to such
prayer came to light at a later stage during pendency of the
appeal and that non-recording of such evidence may lead to
failure of justice. Therefore, the Supreme Court has clarified
that the powers under Section 391 Cr.P.C. can be exercised in
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two contingencies when despite due diligence such request
could not be present or new facts have come to light which
makes it necessary to present such request during pendency of
appeal. In the present case, the petitioner has failed to point out
that, despite exercising due diligence, he was unable to bring to
the notice of the Trial Court the necessity of examining
Chandrapal Meshram. It seems from the record that it is only
after the pronouncement of Judgment by the Trial Court and
after preferring the appeal, the petitioner filed an application
considering the observations of the Trial Court in respect of
examination of Chandrapal. It is a settled principal of law that
by leading additional evidence, the lacunae in the trial cannot
be filled in as was observed by the Supreme Court in the case of
Ashok Tshering Bhutia (supra). In paragraph No.32 of the said
judgment, after referring several judgments, the Supreme Court
has summarised and held that "the additional evidence can be
taken at the appellate stage in exceptional circumstances, to
remove an irregularity, where the circumstances so warrant in
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public interest. Generally, such power is exercised to have
formal proof of the documents, etc. just to meet the ends of
justice. However, the provisions of Section 391 Cr.P.C. cannot
be pressed into service in order to fill up lacunae in the
prosecution case."
16. Therefore, based on the above observations, it is
crystal clear that the petitioner cannot be permitted to lead
additional evidence at the appellate stage, as the petitioner was
part and parcel of the entire criminal proceedings since from
inception and failed to show due diligence during the course of
the trial, and therefore, the petitioner cannot be permitted to
fill in the lacunae. Not only that, there is no irregularity in the
conduct of the trial, nor has the petitioner made out any
exceptional case, in order to lead the additional evidence. If this
is to be permitted, it would amount to filling up of lacunae,
which would result into miscarriage of justice.
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17. Therefore, considering the above facts and
circumstances, the Appellate Court, while considering the
application at Exh.21, has not committed any error and has
rightly rejected the application at Exh.21. Accordingly, no case
is made out to exercise the powers under Article 227 of the
Constitution of India or under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, to interfere in the order dated
21/07/2025. Hence, the following order:-
ORDER
(i) The Criminal Writ Petition No. 694/2025
is dismissed.
(ii) Rule stands discharged.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
