Himachal Pradesh High Court Calls For Judicious Use Of Provision For Additional Evidence U/S 391 CrPC, Cautions Against Disguised Retrials

The Himachal Pradesh High Court has reiterated that the powers under Section 391 CrPC are to be exercised judiciously and not for mere asking, and the additional evidence should not be a way to re-try the case or alter the charges.

Justice Joytsna Rewal Dua observed,

"The trial has ended after full 13 years in the acquittal of the accused persons (respondents No.2 and 3). By allowing the prayer made in the application great prejudice shall be caused to the accused persons as it would virtually amount to retrial".

The observations were made while hearing challenge to an order of Appellate court in terms of which it had dismissed the complainant’s application under Section 391 CrPC seeking to place on record certain documents by way of additional evidence.

In the instant matter the petitioner was the complainant in FIR registered under Sections 417, 466, 474 and 120-B of the Indian Penal Code. After a full dressed trial, the accused was acquitted.

Since the State accepted the verdict, the complainant preferred an appeal against acquittal in 2015. Two years later, the complainant moved an application under Section 391 CrPC to place and prove on record certain documents by way of additional evidence which came to be dismissed by the Appellate court and was consequently being assailed before the bench under Section 482 CrPC.

In order to adjudicate upon the matter Justice Dua referred to apex court judgment in Brigadier Sukhjeet Singh (Retired) MVC Vs. State of Uttar Pradesh & Ors 2019 wherein SC held,

"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. Power to take additional evidence under Section 391 Cr.P.C. is with the object of appropriate decision of the appeal by the appellate Court to secure ends of justice".

The bench thus observed that the additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused and that it is not a disguise for a re-trial. It added that the FIR was registered at the instance of the petitioner-complainant in the year 1998 and in case, the documents were essential for the disposal of the case as claimed by the petitioner then it was for him to make disclosure of all these documents during investigation.

Highlighting the fact that the respondents had faced the trial for 13 long years the bench said that no reason has been assigned in the application for the delay in making the prayer and the only reason mentioned is that the documents under reference were not in custody of the petitioner. The petitioner has not even denied having prior knowledge about the existence of the documents in question, the court said.

For the said reason the bench found the petition devoid of any merit and dismissed the same.

Case Title: Kewal Krishan Vs State of HP

Citation: 2023 LiveLaw (HP) 25

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