Ajay Gupta vs State Through Cbi
2005 Latest Caselaw 1448 Del

ORDER

R.C. Chopra, J.

1. This application under Section 311 read with Section 391 and Section 482 Cr. P.C. is with a prayer for issuing directions for recording additional evidence to further interests of justice and avoid miscarriage of justice.

2. The facts relevant for the disposal of this application, briefly stated, are that the appellant/petitioner stands convicted under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, vide orders dated 5th July, 2003. The order on sentence was dated 7th July, 2003. His appeal against conviction and sentence stands admitted.

3. The appellant/petitioner pleads that the prosecution case against him is false as he was not present at the spot nor had accepted bribe money as alleged by the prosecution. According to him, at the time of alleged trap, he was present in Safdarjung Hospital in connection with investigations of an accident case registered at Police Station, Badarpur and the Doctors, the records of the Hospital and Police Station can establish that he was not present at the spot at the time of alleged raid. According to the appellant/petitioner, he had endeavored to produce the witnesses and evidence in defense but the witnesses did not turn up and his counsel made a statement closing defense perhaps due to over-confidence that the prosecution case against the appellant was very weak. In these premises, it is submitted that it would be in the interests of justice to direct recording of additional evidence so that an innocent person does not get convicted in spite of abundant evidence to establish that he is innocent.

4. Learned Counsel for the respondent has opposed this application mainly on the ground that the appellant/petitioner had sufficient opportunity to produce the witnesses as well as material in his defense but he failed to do so. It is also submitted that the order sheets dated 3rd April, 2003 and 2nd June, 2003, recorded by the Trial Court reveal that these defense witnesses were given up by the defense counsel himself. Learned Counsel for the respondent also refers to the orders passed by this Court on 27th July, 2005, by which the application of the appellant/petitioner to record additional defense evidence was dismissed on the short ground that the witnesses were given up by the defense counsel himself.

5. I have heard learned Counsel for the appellant/petitioner and learned Counsel for the respondent.

6. The law is well-settled that the Appellate Court has unbridled powers to order retrial or direct recording of additional evidence if it is satisfied that the additional evidence is essential to promote justice and prevent miscarriage of justice. The Courts do not exist merely for disposal of cases but are established for dispensing justice. The bottom-line is that the Courts must ensure that there is no failure of justice. Ordinarily in appeal, the Appellate Courts do not permit additional evidence for the reason that the parties come before the Appellate Court after trial in which they get sufficient opportunity to lead evidence. However, in case the Appellate Court is satisfied that for some reason, a party has not been able to adduce evidence which is material and may have substantial bearing on the outcome of the matter, the directions to record additional evidence must be issued to prevent failure of justice. However, such direction should be issued only in exceptional cases and sparingly. The main consideration for adopting this course has to be that the ends of justice have to be achieved and there should be no failure of justice. The carelessness or negligence of a counsel or ignorance of an accused do not stand in the way of the Appellate Court while considering such a request. Procedural blockades cannot obstruct the flow of stream justice which has to be kept flowing, unpolluted and uninterrupted.

7. In the case in hand, it is found that in his anticipatory bail application itself, the appellant/petitioner had raised a plea that at the time of alleged raid and payment of bribe money to him he was not present at Police Station Badarpur and in fact he was present at Safdarjung Hospital in connection with the investigations of a case. This plea was raised in regular bail application even but still the Investigating Officer did not care to carry out investigations into this plea and collect evidence to show that the appellant was raising a false plea of alibi. The facts of the prosecution case against the appellant warranted inquiry into this plea inasmuch as according to prosecution itself, the appellant, after accepting the bribe from the complainant, threw it away and ran away from the spot. The appellant was trying to raise a plea of mistaken identity also. In this situation, it was necessary for the Investigating Officer to inquire into the plea of appellant/accused that he was present somewhere else. If the appellant had manipulated records to raise a plea of alibi, the Investigating Officer had good reasons and a duty to expose the falsity of his plea and take action against those even who were trying to shield him.

8. However, since it was not done, it is in the interests of justice and for arriving at a just decision in the case that the evidence as referred to in the application is recorded by the Trial Court as additional evidence so that this Court may ascertain the truth of the matter before finally disposing of the appeal filed by the appellant. It is true that the appellant had not produced these witnesses in defense and his counsel had given up these witnesses in the Trial Court but that does not stand in the way of this Court exercising powers under Section 311 read with Section 391 Cr. P.C., which are meant for preventing miscarriage of justice. The main reason for giving up the witnesses was that they were not getting served. The Supreme Court of India in the case of Rajeswar Prasad Misra v. The State of West Bengal reported in AIR 1965 SC 1887 : 1965 (2) Cri LJ 817 examined the powers of Appellate Courts to take additional evidence and held that additional evidence could be ordered if the Court was of the view that there would be failure of justice without it.

9. Under the facts and circumstances of the case in hand, this Court is of the considered view that it is a fit case in which in exercise of its powers under Section 311 read with Section 391 Cr. P.C., this Court should direct recording of additional evidence by the Trial Court as prayed. Accordingly, learned Trial Court is directed to examine Dr. C. S. Prabhu, Dr. Bipin Kumar, Dr. Sumit Sural, Kokan Kumar Mandal, the injured, In-charge, VRK (South District), New Delhi with records and in charge, HAP Branch, VI Battalion, DAP with records and send the recorded evidence to this Court for the purpose of disposal of this appeal. As mentioned in the application itself, it would be the responsibility of the appellant/petitioner himself to produce Dr. Bipin Kumar and Dr. Sumit Sural before the Trial Court on the date/dates fixed for recording their statements. No summons will be issued for them.

10. The application stands disposed of.

11. The appeal be listed in due course after the receipt of additional evidence from the trial Court.