[Cites 11, Cited by 0]

Bombay High Court

Kuwarlal S/O Hiralal Wasnik vs Sau. Alka Kuwarlal Wasnik And Others on 9 February, 2026

2026:BHC-NAG:2174




              Judgment

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                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL REVISION APPLICATION NO.58 OF 2018

              Kuwarlal s/o Hiralal Wasnik,
              aged about 48 years, occupation: professor,
              r/o Radhika Apartment,
              Ganediwala Layout, Camp,
              Amravati, taluka and district Amravati. ..... Applicant.

                                  :: V E R S U S ::

              1. Sau. Alka Kuwarlal Wasnik (Dead),
              aged about 40 years,
              occupation: Ad hoc Professor,
              R/o VMV Girls Hostel,
              VMV Compound, Amravati,
              taluka and district Amravati,
              (P.S.Gadgenagar, Amravati).

              2. Sapna Madhukarrao Ramteke,
              aged 35 years, occupation: LIC Agent,
              r/o Madhav Vihar, Tapovan,
              Amravati, district Amravati.

              3. State of Maharashtra,
              through Police Station Officer,
              Police Station, Gadgenagar,
              Amravati.
              Tahsil and district Amravati. ..... Non-applicants.




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                            2

==============================
Shri M.P.Kariya, Counsel for the Applicant.
Shri Raheel Mirza, Counsel for NA No.1.
Shri A.M.Kadukar, APP for NA No.3/State.
==============================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 23/01/2026
PRONOUNCED ON : 09/02/2026

JUDGMENT

1. Heard learned counsel Shri M.P.Kariya for the

applicant, learned counsel Shri Raheel Mirza for the non-

applicant No.1, and learned APP Shri A.M.Kadukar for

the State. Admit. Heard finally by consent.

2. This revision is preferred by the applicant

challenging order passed by learned Additional Sessions

Judge, Amravati allowing application of non-applicant

No.1 under Section 391 of the Code of Criminal

Procedure in Criminal Appeal No.100/2012 dated

11.1.2016.

3. Brief facts of the case are as under:

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The non-applicant No.1 lodged a report with the

concerned police station alleging that she is legally

wedded wife of the applicant. After the marriage, she

was ill-treated by the applicant and other family members

and, therefore, she lodged the report. On the basis of the

said report, the police have registered the crime against

the applicant and other family members. After

completion of investigation, chargesheet is filed against

the applicant. However, learned Magistrate acquitted

him of charges. Therefore, she preferred an appeal

bearing Criminal Appeal No.100/2012 challenging the

judgment and order of acquittal before learned

Additional Sessions Judge, Amravati. During the

pendency of the appeal, she filed an application below

Exh.57 under Section 391 of the Code seeking permission

to adduce additional evidence. Learned Additional

Sessions Judge, after considering the application and

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reply filed and on hearing both the sides, allowed the

application and directed learned Magistrate to record

additional evidence on the point of proving of birth

certificate of child between Sapna Kuwarlal Wasnik and

Kuwarlal Hiralal Wasnik born on 26.3.2014 at the

hospital of Dr.Panjal Sharma at Amravati and to further

record evidence whether said Sapna and Kuwarlal Hiralal

Wasnik are one and the same and give finding afresh

whether the offence of bigamy is proved or not so also

whether there was mental cruelty due to so-called extra

marital relation of the applicant with said Sapna

Kuwarlal Hiralal Wasnik.

4. Being aggrieved and dissatisfied with the same, the

present revision is filed by the applicant on the ground

that learned Additional Sessions Judge has not

considered that earlier application for adducing

additional evidence is already rejected by the court by

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order dated 27.7.2015. The said order was challenged

before this Court also in Criminal Writ Petition

No.735/2015 and the same was maintained. Despite

there was a finding by this court, while rejecting the

application that no such additional evidence is required

for a just decision of the case, again with the same

ground, the application was filed and learned Additional

Sessions Judge has allowed the application.

5. Learned counsel for the applicant invited my

attention towards provisions of Section 391 of the Code

and submitted that the parties are not entitled to use the

said provisions as the wording used in the said Section

itself shows that it is to the court if feels that in the

interests of justice, additional evidence is required. In

view of the said Section, either the appellate court can

record the evidence or remand it to the trial court for

recording evidence. Learned Additional Sessions Judge

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has completely ignored the legal provisions and not only

remanded the matter for recording the evidence but also

for recording the finding. He submitted that considering

the scope of Section 391 of the Code, the revision

deserves to be allowed by setting aside the order passed

by learned Additional Sessions Judge, Amravati.

6. Per contra, learned APP for the State strongly

opposed the said contentions and submitted that for a

just decision of the case, the said evidence was required

as the present applicant is prosecuted for the offences

under Section Section of the IPC. The documents pertain

to the birth of child begotten from illicit relationship of

the applicant and one Sapna. To establish the offence

under Section 494 of the IPC, the said birth certificate

and the evidence regarding the said birth certificate is

essential and, therefore, there is no illegality committed

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by learned Additional Sessions Judge and in view of that

the revision being devoid of merits is liable to be rejected.

7. After hearing both the sides and after considering

the record, there is no dispute as to the relationship

between the applicant and the non-applicant No.1, who

subsequently, reported to be dead. The matrimonial

relationship between the applicant and the deceased is

undisputed. It is also undisputed that the applicant was

prosecuted for the offences under Section 498A, 494,

506(2) and 201 of the IPC. After completion of the

investigation, chargesheet was submitted. During a full-

fledged trial, learned Magistrate has held that the

prosecution could not prove the charges against the

applicant. Being aggrieved and dissatisfied with the same

Criminal Appeal No.100/2012 was preferred by the

original complainant. During pendency of that appeal,

the application was filed below Exh.50 seeking

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permission to adduce additional evidence. The same was

rejected by order dated 27.7.2015. The said order of

learned Additional Sessions Judge rejecting the

application was challenged before this court in criminal

Writ Petition No.735/2015. This court on perusal of the

impugned order held that the petitioner has not appeared

before the appellate court and was avoiding hearing of

the appeal. When the matter was fixed for judgment, an

application came to be filed by the petitioner seeking

permission to file documents and adduce further

evidence in the matter. The application is totally silent

and does not show any reason for adducing additional

evidence and, therefore, declined to interfere in the said

order.

8. Subsequent to disposal of the writ petition, again

application came to be filed below Exh.57 contending a

detailed reason that there was illicit relations between

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the applicant and one child is begotten from the said

wedlock. To prove the offence under Section 494 of the

IPC, the evidence as to birth of the child due to the

relationship between the applicant and one Sapna, the

said evidence is required. Learned Additional Sessions

Judge allowed the said application and hence, this

revision.

9. Section 391 of the Code deals with appellate

powers to receive additional evidence. The said Section

forms an exception to the general rule that an appeal

must be decided on the evidence which was before the

trial court and powers being exceptional shall always

have to be exercised with caution and circumspection so

as to meet the ends of justice.

10. It is to be noted further that the doctrine of finality

of judicial proceedings does not stand annulled or

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affected in any way by reason of exercise of power under

Section 391 of the Code. It is not to fill up the lacuna but

to sub-serve the ends of justice. Section 391 of the Code

is thus akin to Order 41, Rule 27 of the Civil Procedure

Code. Power to record additional evidence under Section

391 of the Code should only be exercised when the party

making such request 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 proposition taking additional evidence in a criminal

appeal cannot be adopted as a matter of course by the

appellate court and in fact, the occasion for the appellate

court to take a considered decision on the prayer for

adducing additional evidence in appeal could arrive only

after the appeal itself has been heard on merits and not

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before. The key words in Section 391(1) of the Code are

"if it thinks additional evidence to be necessary". The

word "necessary" used in Section 391(1) is to mean

necessary for deciding the appeal. The powers of

appellate court are contained in Section 386 of the Code.

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.

11. The appellate court's powers to receive additional

evidence under Section 391 of the Code are powers being

in the nature of an exception shall always have to be

exercised with caution and circumspection so as to meet

the ends of justice. Though under provisions of the said

Section a wide discretion has been conferred, the powers

could not be exercised for filling up any lacunae and the

appellate court while directing taking of additional

evidence was required to record reasons for the same.

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The powers were held to be in the nature of exception to

the general rule and it was stated that the same must be

exercised with great care. It is, therefore, seen that the

powers under Section 391 of the Code to take additional

evidence by the appellate court are of a discretionary

nature and are to be exercised sparingly and only in

suitable cases. In view thereof, additional evidence

cannot be tendered at the appellate stage as a matter of

right and the power to be exercised by the appellate court

is to be based on discretion, sound judicial principles and

in the interest of justice. The discretion is to be exercised

in suitable cases.

12. The said aspect is considered by the Hon'ble Apex

Court in the case of Ajitsinh Chehuji Rathod vs. State of

Gujarat and ors, reported in AIR 2024 SC 787 wherein it

is held that, "the law is well-settled by a catena of

judgments rendered by this Court that power to record

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additional evidence under Section 391 CrPC should only

be exercised when the party making such request 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".

13. In the case of Zahira Habibullah Sheikh v. State of

Gujarat, reported in (2004) 4 SCC 158, the Hon'ble Apex

Court has elaborately dealt with aspect of exercising

jurisdiction, highlighting balance which the courts have

to maintain so as to not deny right to additional evidence

to do justice and importance of right to fair hearing of the

accused as well as the prosecution. The right to fair

hearing is inherent to the concept of due process of law

and ascertainment of truth. Equally, there can be failure

of justice if this discretion to allow additional evidence at

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the appellate stage is exercised in a routine and liberal

manner without the court being satisfied that prayer

bears imprints of reasonableness and genuineness to at

least consider the worth, credibility, and acceptability of

material sought to be brought on record.

14. In the light of the above well settled principles and

legal provision, it reveals that Chapter-29 of the Code

deals with "appeal". Section 391 of the Code empowers

the appellate court to take further evidence or direct it to

be taken. Section 391 is reproduced as follows:

"391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

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(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) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry".

15. In view of Section 391(1), when additional

evidence is taken, the appellate court shall record its

reasons and may either take such evidence itself, or direct

it to be taken by a Magistrate, or when the appellate

court is a High Court, by a Court of Session or a

Magistrate.

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In view of sub section (2), when the additional

evidence is taken by the Court of Sessions 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.

16. Thus, in view of the above provisions, the matter is

to be remanded back to the extent of recording the

evidence to the trial court and not for recording the

findings.

17. The power to take additional evidence under

Section 391 is thus with an object to appropriately decide

the appeal by the appellate court to secure the ends of

justice.

18. The scope and ambit of Section 391 of the Code

has come up for consideration before the Hon'ble Apex

Court in the case Rajeswar Prasad Misra vs. State of West

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Bengal and anr, reported in MANU/SC/0080/1965

wherein it is held that, "a wide discretion is conferred on

the appellate court and additional evidence may be

necessary for variety of reasons".

It is further 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 and following principles are laid

down in paragraph Nos.8 and 9, as under:

"8. .......... Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both

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actions subsume failure of justice as a condition precedent. There the resemblance 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 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 .....19/-

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in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial 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 .........."

19. Thus, from the law laid down by the Hon'ble Apex

Court as noted above, it is clear that there are no fetters

on the power under Section 391 of the Code 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.

20. In view of the above observations, if the order

passed by learned Additional Sessions Judge is taken into

consideration, admittedly, he has taken into consideration

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that initially that evidence was not available with the

original complainant and subsequently she came to know

about the fact of the birth of the child between her

husband and one lady and, thereafter, she approached

the court during the pendency of the appeal. Therefore,

the order passed by learned Additional Sessions Judge as

to remanding the matter to the extent of recording

additional evidence on the point of proving birth

certificate of birth of child between Sapna Kuwarlal

Wasnik and Kuwarlal Hiralal Washim on 26.3.2014 at the

hospital of Dr.Panjal Sharma is legal and correct.

21. As far as further directions to give finding is

concerned, it is beyond the scope of Section 391 of the

Code.

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22. In this view of the matter, the present revision

deserves to be allowed partly. Hence, I proceed to pass

following order:

ORDER

(1) The Criminal Revision Application is Partly Allowed.

(2) The order passed by learned Additional Sessions

Judge, Amravati in Criminal Appeal No.100/2012 dated

11.1.2016 is hereby modified to the extent that the

original complainant is permitted to adduce additional

evidence.

(3) Learned Magistrate shall record additional evidence

on the point of proving of birth certificate of birth of child

begotten by Sapna Kuwarlal Wasnik born on 26.3.2014

out of relationship with Kuwarlal Hiralal Wasnik and

learned Magistrate shall certify such evidence and

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forward it to the appellate court i.e. Additional Sessions

Judge.

(4) The further direction given by learned Sessions Judge

that learned Magistrate shall given finding afresh