Madhup Bhura vs State Of Chhattisgarh
2023 Latest Caselaw 1027 Chatt

                                                                                    Page No.1

             HIGH COURT OF CHHATTISGARH, BILASPUR

                       Judgment Reserved on : 10/02/2023

                      Judgment Delivered on : 17/02/2023

                               WPCR No. 921 of 2022

       Madhup Bhura S/o Late Mahendra Bhura Aged About 59 Years
       R/o Civic Centre Bhilai, Police Station Bhilainagar, Tehsil And
       District Durg, Chhattisgarh. Presently Residing At S-1, Sapphire
       Anand, D-101,meera Marg, Bani Park, Jaipur, District Jaipur,
       Rajasthan

                                                                          ---- Petitioner

                                         Versus

       State of Chhattisgarh Through The District Magistrate, Durg,
       Chhattisgarh.

                                                                       ---- Respondent

  _______________________________________________________

        For Petitioner                :       Mr. Sumesh Bajaj, Advocate.
        For Respondent/State :                Ms. Ruchi Nagar, Dy. G.A.
        For Complainant               :       Mr. Shakti Raj Sinha, Advocate
----------------------------------------------------------------------------------------------

                 Hon'ble Shri Justice Sanjay K. Agrawal
                Hon'ble Shri Justice Radhakishan Agrawal

                                      C A V Order

Radhakishan Agrawal, J.

1. This petition under Article 226/227 of the Constitution of India

has been filed seeking setting aside of order dated 04.08.2022,

whereby, the application under Section 391 of the Cr.P.C filed by

the petitioner was dismissed by learned 7 th Additional Sessions

Judge, Durg in the Criminal Appeal No.38/2017.

Page No.2

2. Learned counsel for the petitioner submits that the petitioner was

prosecuted before the trial Court for the offence punishable

under Section 420 of the IPC in Criminal Case No. 672 of 2010

which was decided on 2.3.2017 and the petitioner has been

convicted vide Annexure-P1. Subsequent to that, the petitioner

filed an appeal registered as CRA No. 39/2017 before the Court

of Sessions Judge, Durg, challenging his conviction and the

same is pending consideration. In the meantime, the petitioner

has obtained some documents showing allotment of disputed

land in his favour by Bhilai Steel Plant, which demonstrate his

innocence. These documents were not filed along with charge-

sheet and these documents were not in possession of the

petitioner at the time when the case was pending before the trial

Court. In these circumstances, the petitioner filed an application

under Section 391 of the CrPC before the appellate Court

seeking permission to lead additional evidence. However, the

appellate Court vide order dated 04.08.2022 dismissed the

application preferred by the petitioner under Section 391 and

posted the matter for final arguments. Therefore, it is submitted

by counsel for the appellant that the impugned order dated

04.08.2022 passed by the Appellate Court be quashed and the

application filed by the petitioner under Section 391 be allowed.

3. Learned counsel for the State as well as for the Complainant

would oppose the petition and support the impugned order. They Page No.3

submit that the writ petition is not maintainable and the order

passed by the learned Appellate Court is in accordance with law.

4. Case of the prosecution in brief is that the petitioner by way of

playing trick and by doing fraud and dishonesty motivated Smt.

Paras Jain to buy his property situated at New Civic Centre,

Bhilai and obtained total Rs. 9,60,000/- and thereby committed

the fraud. The FIR was lodged against the petitioner and during

trial, the petitioner was convicted under Section 420 of the IPC

vide judgment dated 02.03.2017. The petitioner filed appeal

before the 7th Additional Sessions Judge, Durg which was

registered as Criminal Appeal No.39/2017. During the pendency

of appeal, the petitioner also filed an application under Section

391 of Cr.P.C, which was dismissed by the impugned order

dated 04.08.2022 against which this writ petition has been

preferred.

5. We have heard both the parties and perused the documents on

record.

6. The Appellate Court vide impugned order dated 04.08.2022 has

rejected the application under Section 391 of Cr.P.C. preferred

by the petitioner, and held as under:

"iz L rq r vkosn u ;kfu /kkjk 391 naM iz f dz ; k laf gr ds lkFk laay Xu nLrkost ksa dks

ns[ kk tkos rks mDr nLrkost [email protected]@2017 dks tu lwp uk vf/kdkj vf/kfu;e ds

ek?;e ls iz k Ir fd;k tkuk iz d V gks jgk gS tks fd v{ksf ir fu.kZ ; fnuak ad Page No.4

[email protected]@2017 ds mijkar iz k Ir fd;k tkuk Hkh iz d V gks jgk gS ] blds vfrfjDr

;fn iz d j.k esa ifjf{kr lkf{k;ksa ds U;k;ky;hu dFkuksa esa vk;s rF;ksa dks n` f "Vz x r

j[krs gq ; s vkosn u ds lkFk iz L rq r nLrkost ksa dh vFkZ o Lrq dks ns[ kk tkosa rks

dfFkr fooknxz L r Hkwf e dks fHkykbZ LVhy IykaV ds }kjk vkjksi [email protected] d dks ,ykW V

fd;k tkuk iz F ke n` " V;k n'kkZ jgk gS A bl U;k;ky; }kjk vihykFkhZ ds fo}ku

vf/koDrk ls vkosn u ,oa lay Xu nLrkost ksa ds lac a/ k esa Li"Vhdj.k pkgs tkus ij

muds }kjk ;g O;Dr fd;k x;k gS fd] vkjksi [email protected] d }kjk fooknxz L r

Hkwf e ds lac a/ k esa lai w. kZ jkf'k dh vnk;xh dh tk pq d h Fkh ,oa fodz ; i= ds

nLrkost ksa ij Hkh mHk; i{kdkjksa ds }kjk gLrk{kj fd;s tk pq d s Fks fdUrq mldk

iat h;u fdUgh dkj.kksa ls ugha gks ik;k Fkk vFkkZ r vkjksi [email protected] d dfFkr

Hkwf e dk ek= ,ykW V h gksu k Hkh Lo;a vihykFkhZ @ vkosn d dh vksj ls Lohdkjk x;k gS

rFkk vkosn u ds lkFk lay Xu nLrkost ksa ds lan HkZ esa fo}ku fopkj.k U;k;ky; ds

vfHkys[ k esa rkfRod lk{; dk gksu k Hkh iz d V gks jgk gS ] ,sl h n'kk esa ek=

f'kdk;rdrkZ ds }kjk O;ogkj iz d j.k esa vihykFkhZ @ vfHk;q D r dks dfFkr Hkwf e dk

Lokeh eku fy;k tkus Hkj ls gh] iz L rq r vkosn u dks Lohdkjk tkuk mfpr

iz d V ugha gks jgk gS A vr% fopkjksi jkar mijksD r of.kZ r U;k; n` " Vkar ksa dh

vFkZ o Lrq ,oa fo}ku fopkj.k U;k;ky; ds ewy vfHkys[ k esa lay Xu lexz nLrkosat ks

,oa mijksD r foosp uk ds mijkar vihykFkhZ @ vfHk;q D r dh vksj ls iz L rq r vkosn u i=

var xZ r /kkjk 391 n.M iz f dz ; k laf grk dks fujLr fd;k tkrk gS A "

7. The Supreme Court in the matter of Brig. Sukhjeet Singh

(Retd.) MVC vs. State of Uttar Pradesh and Others in

Criminal Appeal No. 148 of 2019, Judgment dated January

24, 2019 has elaborately dealt with the issue and observed in

paragraphs 12 to 16, as under :-

12. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 Cr.P.C. empowers the Page No.5

Appellate Court to take further evidence or direct it to be taken. Section 391 is 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.

(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."

13. The key words in Section 391(1) 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 appeal has been filed by the accused, who have been convicted. The powers of Appellate Court are contained in Section 386. In an appeal from a conviction, an Appellate Court can exercise power under Section 386

(b), which is to the following effect:

b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;

14. 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. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be Page No.6

necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:-

"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 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 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..............................."

15. This Court again in Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 had noted the power under Section 391 Cr.P.C. of the Appellate Court.

Following     was      stated     in       Paragraph    Nos.
1 and 2:-

"1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same........................

2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or Page No.7

to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of W.B. 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."

16. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. 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.

8. Sub-section (1) of Section 391 of the CrPC specifically provides

that if the appellate Court is convinced that additional evidence is

necessary to be taken, then it shall either take the evidence itself

or direct the Magistrate to record the evidence. Sub-section (2)

lays down in categorical terms that if the additional evidence is

taken by the concerned Court, then it shall certify such evidence

to the appellate court and then the appellate Court shall

thereupon proceed to dispose of that appeal.

9. The petitioner/accused intended to file some documents which

have been obtained by him under the Right to Information Act,

2005 regarding allotment of Shop No. 151 and the note-sheets

were also prepared. It is averred that the petitioner also intended

to sale of Shop No. 151 allotted by Bhilai Steel Plant in the year

1994 under the agreement to sale with the Complainant, Smt.

Paras Jain (PW-1). Gautam Chand Jain (PW-7) is the husband Page No.8

of Smt. Paras Jain and is also the power of attorney holder. They

both were living in same area wherein, Shop No. 151 was

situated, so the status of the property is known to them very well.

A careful reading of the impugned order shows that it is not

disputed that the documents which were intended to be

produced by the petitioner were obtained by him under the R.T.I

Act after passing the order for conviction on 02.03.2017. It also

shows that alleged disputed land was allotted to the petitioner by

Bhilai Steel Plant and some transaction was also taken place in

between the parties. Hence, the Appellate Court was not justified

in disallowing the application of the petitioner. As such, this Court

is of the considered view that the appellate Court has committed

an error in passing the order dated 04.08.2022 and in dismissing

the application of the petitioner filed under Section 391 of CrPC.

10. Accordingly, the writ petition is allowed and the impugned order

dated 04.8.2022 is hereby set aside. The Appellate Court is

directed to take steps for recording the statement of Smt. Paras

Jain, Gautam Jain and the other witnesses relating to documents

submitted by the petitioner. The learned Appellate Court itself

would examine the witnesses and conclude the examination of

witnesses within a period of 30 days. The prosecution will be

also be given an opportunity to file document and to examine the

witnesses in opposition to the evidence led by the accused, if

any. Further, the concerned trial Court is directed to decide the Page No.9

appeal preferred by the petitioner, in accordance with law, within

a period of three months from the date of receipt of copy of this

order. It is made clear that this Court has not expressed any

opinion on the merits of the matter and the Appellate Court is at

liberty to decide the appeal on its own merit in accordance with

law.

               Sd/-                            Sd/-

          (Sanjay K. Agrawal)         (Radhakishan Agrawal)
               Judge                       Judge

Saurabh