Nirmal Bhattacharya vs The State Of Jharkhand
2022 Latest Caselaw 2656 Jhar

                                                   1                    Cr.M.P. No. 453 of 2017


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 453 of 2017
             1.   Nirmal Bhattacharya, S/o late Satyabrattaa Bhattacharya, resident of
                  Sahara Apartment, Domohani Road, Sonari, P.O. & P.S. Sonari, Town
                  Jamshedpur, District- East Singhbhum
             2.   Chandra Bhushan Singh, S/o Sri Krishna Singh, resident of Holding
                  No.245, Road No.6, Sonari, P.O. & P.S. Sonari, Town Jamshedpur,
                  District- East Singhbhum                            ... Petitioners
                                           -Versus-
             1.   The State of Jharkhand
             2.   Fredrick D'souza, S/o Sri N. D'souza, R/o 9 and 10, Loyla School Area,
                  Bistupur, P.O. & P.S. Bistupur, District- East Singhbhum, Jamshedpur
                                                                      ... Opposite Parties
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             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----

For the Petitioners : Mr. Nagmani Tiwari, Advocate For O.P. No.2 : Mr. Harsh Chandra, AC to Mr. S.L. Agrawal, Advocate For the State : Mrs. Priya Shrestha, Spl.P.P.

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09/14.07.2022. Heard Mr. Nagmani Tiwari, learned counsel for the petitioners,

Mr. Harsh Chandra, learned counsel for opposite party no.2 and Mrs. Priya

Shrestha, learned counsel for the State.

2. This petition has been filed for quashing of the order dated

19.01.2017 passed in Criminal Appeal No.141/2012 by the learned

Additional Sessions Judge-V, Jamshedpur whereby the petition filed by the

petitioners under Section 391 Cr.P.C. for accepting additional evidence has

been rejected.

3. Mr. Nagmani Tiwari, learned counsel for the petitioners submits that

the petitioners are innocent. The petitioners have been convicted under

Sections 452/457 of the Indian Penal Code. Against that order, an appeal

has been filed by the petitioners before the learned appellate court. He

further submits that a petition dated 17.02.2016 has been filed by the

appellants in the said appeal for exhibiting two judgments before the

appellate court. He also submits that the learned court has rejected the said

petition without appreciating the purpose of filing of that petition. He refers

the statement of P.W.5, who happens to be the informant and submits that

so far as the power of attorney is concerned, that has been admitted that

the same has been issued in favour of petitioner no.2. He also submits that

the appellate court is having power to accept additional evidence under

Section 391 Cr.P.C.

4. Mr. Harsh Chandra, learned counsel for opposite party no.2 submits

that there is no illegality in the impugned order and the learned court after

relying on judgments, has come to that conclusion and due diligence has

not been shown by the petitioners in the trial. On earlier occasions, the

petitioners have not tried to bring the fact before the trial court and at the

initial stage of appeal and, therefore, the learned court has rightly rejected

the petition.

5. Mrs. Priya Shrestha, learned counsel for the State submits that there

is no illegality in the impugned order. The learned court, after looking into

entire materials, has rejected the petition.

6. The Court has perused the impugned order dated 19.01.2017 and

finds that the learned court has taken care of the entire aspects of the

matter. The learned court has relied on two judgments of the Hon'ble

Supreme Court. It is settled proposition of law that for filling in lacuna, the

petitions under Sections 311 and 391 Cr.P.C. and Section 165 of the

Evidence Act are not being allowed. Only in the exceptional circumstance, at

the appellate stage, the court can allow the additional evidence in terms of

Section 391 Cr.P.C. In the case in hand, the petitioners have not show their

due diligence to bring on record two documents before the trial court.

Looking into the petition filed by the petitioners for exhibiting two

judgments, it appears that not even a single word has been whispered for

accepting additional evidence, in the petition. The learned court has held

that party of miscellaneous case and G.R. case are not the party in the

appeal and the judgment of miscellaneous case and G.R. Case are no

concerned with the appeal.

7. In view of the aforesaid facts, there is no illegality in the impugned

order dated 19.01.2017. Accordingly, this petition stands dismissed.

8. It is open to the petitioners to demonstrate their case in the appeal

by way of elaborating the argument.

9. Interim order dated 12.04.2017 stands vacated.

(Sanjay Kumar Dwivedi, J.) Ajay/