Power To Take Additional Evidence- "CrPC S. 391 Akin To Order XLI Rule 27 CPC; Appellate Court Should Use Power Sparingly": Allahabad HC

The Court was dealing with the instant application under section 482 of CrPC to quash the order passed by the Additional District and Sessions Judge, Hathras who had rejected the application filed by the applicant before the Court under section 391 of the CrPC for summoning certain persons as witnesses.

Facts In brief

The applicant was convicted and sentenced vide an order passed by the Additional Civil Judge (Junior Division)/JM, Hathras under sections 419 and 420 of the Indian Penal Code pursuant to a criminal trial.

Aggrieved against the aforesaid order, the applicant preferred an appeal and during the pendency of the appeal, an application under 391 CrPC was moved for summoning certain persons as witnesses and recording of additional evidence by the appellate court.

Rejected the 391 CrPC application, the appellate court took note of the fact that the appeal had been filed after a lapse of more than five years the appeal was not being argued and the application seeking summoning of witnesses had been filed only with a view to delay the proceedings.

It was also noted that the applicant had not moved any application for summoning of the aforesaid persons as witnesses during the course of the trial and there was no justification for their summoning at the stage of appeal

Court's observations

At the outset, the Court noted that Section 391 of the Code empowers the court to admit additional evidence at the appellate stage, if it considers that such additional evidence is necessary.

In this regard, the Court referred to Apex Court's ruling in the case of Rambhau and Another Vs. State of Maharashtra (2001) 4 SCC 759, and noted that the appellate court's power to receive additional evidence under section 391 of the Code being in the nature of an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice.

The Court also referred to Zahira Habibulla H. Sheikh & Anr vs State Of Gujarat & Ors (2004) 4 SCC 158 wherein it was held that though under the Section a wide discretion has been conferred, the powers could not be exercised for filling up any lacunae and the appellate court while directing taking of additional evidence was required to record reasons for the same.

"The powers under the section have been held akin to those under Order XLI Rule 27 of the Code of Civil Procedure, 1908 and in view thereof additional evidence cannot be tendered at the appellate stage as a matter of right and the power to be exercised by the appellate court is to be based on discretion, sound judicial principles and in the interest of justice. The discretion is to be exercised in suitable cases and not to fill up gaps and lacunae in the evidence. The recording of reasons by the appellate court for taking the 7 additional evidence has been made mandatory with the salutary objective of operating as a check against a too easy reception of evidence at a later stage of the litigation. The test to be applied is as to whether the evidence sought to advanced is essential for a just decision of the case," concluded the Court dismissing the plea of the Accused.

Case title - ­ Ramdas Tureha v.­ State of U.P. and Another

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