Madhya Pradesh High Court

Shiju K Samuel vs Anil Kumar Jain on 4 September, 2025

Author: Achal Kumar Paliwal

Bench: Achal Kumar Paliwal

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            IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPU R

                                          BEFORE
                       JUSTICE ACHAL KUMAR PALIWAL

                               M.Cr.C. No. 37698 of 2025

                                    SHIJU K SAMUEL

                                            Versus

                                   ANIL KUMAR JAIN

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Appearance

Shri Abhishek Shrivastava - Advocate for the applicant.
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Reserved on           :        02.09.2025
Pronounced on :                04.09.2025
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       This M.Cr.C. having been heard and reserved for order, coming on for
pronouncement this day, Justice Achal Kumar Paliwal pronounced the
following:
                                           ORDER

This M.Cr.C. has been filed under Section 528 of BNSS against order dated

21.07.2025 passed by Additional Sessions Judge, Jabalpur in Cr.A. No.

1444/2024, whereby Appellate Court held that application filed by the applicant

under Section 391 of Cr.P.C. shall be decided at the time of final disposal of appeal

on merits and not separately.

2. Learned counsel for the applicant submits that in the instant case, applicant has

filed an application under Section 391 of Cr.P.C. before learned Appellate Court

but Appellate Court has not decided aforesaid application and it has passed an

order to the effect that aforesaid application shall be disposed of, at the time of

final disposal of appeal. Learned counsel for the applicant, after referring and

relying upon Criminal Appeal No. 184/2020 (Asim @ Munmun Vs. State of

Gujarat) decided on 28.01.2020, submits that learned Appellate Court was

required to decide applicant's application under Section 391 of Cr.P.C. before

deciding the appeal on merits finally. Hence, petition filed by the applicant be

allowed and impugned order be set aside and appellate Court be directed to first

decide applicant's application under Section 391 of Cr.P.C. and thereafter dispose

of the appeal finally on merits.

3. I have heard learned counsel for the applicant and perused the record of the

case.

Analysis and Findings :-

4. Perusal of the record of the case reveals that applicant has filed an

application under Section 391 of Cr.P.C. but Appellate Court has not disposed of

aforesaid application separately. Instead, Appellate Court has directed that the

aforesaid application shall be disposed of, at the time of final disposal of appeal.

5. Sole issue before this Court is as to whether an application filed under

Section 391 of Cr.P.C. is required to be decided along with final disposal of appeal

on merits or it has to be decided separately. With respect to aforesaid, it would be

appropriate to reproduce Section 391 of Cr.P.C. which is as under:-

―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.‖

6. Further, issue involved in the case has been dealt with by Hon'ble Apex

Court in the case of Rambhau and another Vs. State of Maharashtra, (2001) 4

SCC 759 and State of Rajasthan Vs. T.N. Sahani and others, (2001) 10 SCC

619.

7. Hon'ble Apex Court in the case of Rambhau and another Vs. State of

Maharashtra, (2001) 4 SCC 759, has held in para 4 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 or b 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.‖

8. Hon'ble Apex Court in the case of State of Rajasthan Vs. T.N. Sahani and

others, (2001) 10 SCC 619 has held in para 4 as under:-

―4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526 pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it Judgment, it still considered that in the interest quired to enabling which remained was, and so, additional evidence could not be required to enable it to pronounce the obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the

appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law.‖

9. Thus, from aforesaid, it is evident that Section 391 of Cr.P.C. is akin to

Order 41 Rule 27 of CPC. It is well established that application under Order 41

Rule 27 of CPC is required to be decided along with appeal at the time of disposal

of appeal/final hearing of appeal on merits and not separately. Further, opening

words of Section 391(1) of Cr.P.C. ― in dealing with any appeal under this

chapter‖, indicate that application filed under Section 391 of Cr.P.C. is to be dealt

with and decided along with the appeal at the time of disposal of appeal/final

hearing of appeal on merits and not separately.

10. Further, Coordinate Bench of this Court in Dharmendra Vs. State of MP,

2006 SCC Online MP 26 has also dealt with the issue in paras 4, 6, 7, 8 and 9

which are as under:-

"4. Learned Sr. Advocate Shri B.L. Pavecha submitted that the application under section 391 of Criminal Procedure Code was not required to be considered and decided in isolation without hearing the appeal on merits. It is submitted that it is the established practice under the civil law that as and when an application under Order 41, Rule 27 is filed at appellate stage for taking any additional evidence then such application is required to be heard along with appeal itself and after hearing the appeal on merits such application requires adjudication. Same course

should have been adopted by the learned Additional Sessions Judge regarding the application moved by the application during the pendency of the criminal appeal. He has drawn attention of Court toward provisions of section 391, Criminal Procedure Code and submitted that opinion regarding necessity of such additional evidence for determination of the appeal can only be formed after hearing the appeal on merits. He has relied upon the cases of State of Rajasthan v. T.N. Sahani, (2001) 10 SCC 619 and also case of Khemchand v. Government of M.P., 1972 MPLJ 524: 1972 JLJ 482.

6. The Code of Criminal Procedure gives power to appellate Court to take additional evidence which for reason to be recorded by the Court, it considers to be necessary to pronounce the judgment. The additional evidence should have such of which there may be an occasion of failure of justice. The additional evidence must have some direct bearing on the facts of the case. The opening words of section 391, Criminal Procedure Code says that:-

"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, bya Court of Session or a Magistrate."

7. These opening words clearly suggest that the application moved under section 391, Criminal Procedure Code should be considered by the Appellate Court while dealing with the criminal appeal and when it comes to the conclusion that this additional evidence is necessary, such application can only be dealt with after going through the entire record of the trial Court and after hearing both the parties. Therefore, the wording of section 391, Criminal Procedure Code suggests that the

application moved under this section should not be considered in isolation but should be considered after hearing the parties on merits. If after hearing parties on merits Court comes to the conclusion that the additional evidence is unnecessary then while deciding the appeal application moved under section 391 Code of Criminal Procedure can be dismissed. If such additional evidence appears necessary regarding decision of the matter and without which the appeal cannot be disposed of then such additional evidence may be taken on record either by the Appellate Judge himself or by the trial Court. The Appellate Judge may also remand back the matter to the trial Court for the purpose recording additional evidence as provided under sub- section (2) of the said section 391 therefore, the whole scheme of section 391 suggests that like civil cases an application for taking additional evidence on record under section 391 of the Code of Criminal Procedure should also be considering and disposed of after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the appeal on merits because if such application are disposed of without hearing the appeal on merits then there may be cases of failure of justice.

8. In sixth edition of Sarkar on Criminal Procedure at page 1048 it has been observed that an Appellate Court cannot decide, if additional evidence should be admitted, unless it has heard the appeal on merits. This opinion of the learned author is based on the case of Varada Rajulu Vol. 42 ILR Madras page 885 and appears to be correct view of the legal position.

9. Considering the matter on all aspects the impugned order passed by the learned Additional Sessions Judge rejecting the application under section 391, Criminal Procedure Code moved by the applicant in isolation, without hearing the parties on merits is not sustainable and is required to be set aside.

Therefore, the order is set aside and it is directed that the application moved by the applicant under section 391 of the Code of Criminal Procedure should be considered by the learned Additional Sessions Judge at the time of hearing final argument in the criminal appeal.‖

11. Resultantly, in view of discussion, in the forgoing paras, in this Court's

considered opinion, application filed under Section 391 of Cr.P.C. has to be

decided at the time of final hearing/disposal of appeal on merits and not separately.

Application under Section 391 of Cr.P.C. cannot be considered and decided

separately without hearing appeal on merits. Thus, application under Section 391

of Cr.P.C. can only be decided along with/at the time of final disposal/hearing of

appeal on merits.

12. In view of aforesaid and principle laid down by the Hon'ble Apex Court in

Rambhau (supra), principle laid down by Hon'ble Apex Court in Asim @

Munmun (supra) does not help applicant in any manner whatsoever.

13. Resultantly, in view of discussion in the forgoing paras, in this Court's

considered opinion, learned Appellate Court has not committed any illegality in