Ajay Kumar Garg vs Gaurav & Anr

Ajay Kumar Garg .. Appellant(s)

Versus

Gaurav & Anr. .. Respondent(s)

ORDER

Leave granted.

This appeal is directed against order dated 21st August, 2008, passed by the

High Court of Judicature at Allahabad in Capital Case No. 3261 of 2007. By the

impugned order, during the course of hearing of the appeal preferred by the convict,

respondent No. 1 in this appeal, the High Court has ordered that Kalicharan, who

according to the evidence of P.W. 2 and P.W. 6 had apprehended the said respondent

be summoned for giving evidence. The High Court has also summoned the officer-in-

charge of Pushpanjali Hospital where the two deceased ladies had been

examined/treated, with all the material records for its examination. Aggrieved by the

order, the complainant is before us in the appeal.

We have heard learned counsel for the parties.

Learned counsel for the appellant has submitted that while exercising its

power under Section 391 of the Code of

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:2: Criminal Procedure, 1973 (for short"the Code"), the High Court has failed to record

any cogent reasons necessitating recording of additional evidence at this stage,

particularly where the said Kalicharan has filed an affidavit before the High Court,

in favour of the convict, inter alia stating that he had not seen any incident and had

been wrongly made an eye-witness. Learned counsel for the State supports the stand

of the appellant.

Having perused the impugned order, we are of the opinion that the

impugned order, cannot be sustained.

Section 391 of the Code, insofar as relevant for the purpose of this appeal

reads as follows :

"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)-(4)....."

A bare reading of the provision makes it clear that the Section invests the

appellate Court with the power to record additional evidence, provided it is satisfied,

for the

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:3:

reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be

decided on the evidence which was before the Trial Court, power under the Section

has to be exercised with caution and circumspection so as to meet the ends of justice

and not as a matter of course.

In Rambhau and Another vs. State of Maharashtra, (2001) 4 SCC 759, this

Court has held that the object of Section 391 is not to fill in lacuna, but to subserve

the ends of justice. Admission of additional evidence should not operate in a manner

prejudicial to the prosecution or the defence. Though wide discretion is conferred on

the Court, the same has to be exercised judicially and the legislature had put the

safety valve by requiring recording of reasons. Thus, recording of reasons is a

condition precedent for exercise of power under Section 391 of the Code and an order

bereft of reasons would tantamount to non-application of mind, rendering the

exercise of power under the Section, bad in law.

Having gone through the order, we are convinced that the aforenoted

salutary principles have not been kept in view by the High Court while issuing the

impugned directions.

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:4:

The question of summoning of Kalicharan for recording his evidence at this

juncture, particularly, when he is stated to have filed an affidavit, refuting the stand

of the prosecution, in our view, is a serious issue insofar as criminal jurisprudence is

concerned and therefore required deeper consideration, which is missing in the impugned order under challenge. In our opinion, the impugned order suffers from

the vice of non-application of mind and deserves to be set aside on that short ground

only.

Consequently, the appeal is allowed; the impugned order is set aside and the

matter is remanded to the High Court for fresh consideration of the issue regarding

additional evidence.

...................J. [ D.K. JAIN ]

...................J. [ R.M. LODHA ]

NEW DELHI, APRIL 13, 2009.