Dharmendra vs State of M.P.

S.C. Vyas, J.

This application u/s 482 of the Code of Criminal Procedure has been filed by the applicant feeling aggrieved by the order dated 23-7-2005 passed by XI Additional Sessions Judge Indore in Cr.A. No. 567/2004.

The applicant was convicted by JMFC, Indore in Criminal Case No. 1013/04 for the offence punishable u/s 304(a) of the Indian Penal Code and was sentenced with R.I. for one year and a fine of Rs. 1,000/- . Feeling aggrieved by this conviction and sentence criminal appeal was preferred by the applicant which is pending before XI Additional Sessions Judge, Indore. During the pendency of the appeal an application u/s 391, Code of Criminal Procedure was moved by the applicant for taking the documents on record which is said to be a work order issued in favour of some other firm namely Goyal Construction. The charge against the applicant in case was this that when some construction work in Laxmi Bai Nagar, Krishi Upaj Mandi was being carried out by him then he obtained direct electricity connection from the line of MPEB illegally and uninsulated connections were made by him. Santosh S/o Dal Singh, who went near the side of construction, came in contact with these connected live electric wire died because of electrocution. Thereafter crime u/s 304(a) was registered against the applicant and he was tried by learned Magistrate and convicted.

The application filed by the applicant u/s 391, Code of Criminal Procedure was heard by the Additional Sessions Judge on 23-7-2005 and was dismissed on that date by the impugned order holding that the document desired to be produced as additional evidence was very well in the knowledge of the applicant while he was being tried by the learned Magistrate. It has also been held that the document produced by the applicant is not going to affect the merits of the case and on the basis of these findings the application preferred by the applicant has been rejected.

Learned Sr. Advocate Shri B.L. Pavecha submitted that the application u/s 391 of Code of Criminal Procedure 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, Code of Criminal Procedure 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 and Ors., (2001) 10 SCC 619 and also case of Khemchand v. Government of M.P. and Ors. 1972 MPU 524 : 1972 JLJ 482.

Shri Chouhan learned Government Advocate opposing the prayer made by the Learned Counsel for the applicant submitted that the learned lower Court has committed neither any illegality or impropriety in deciding the application u/s 391 in isolation. There is no provision under criminal procedure that such application is required to be decided after hearing the appeal on merits.

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, Code of Criminal Procedure 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, by a Court of Session or a Magistrate.

These opening words clearly suggest that the application moved u/s 391, Code of Criminal Procedure 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, Code of Criminal Procedure 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 u/s 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 u/s 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.

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.

Considering the matter on all aspects the impugned order passed by the learned Additional Sessions Judge rejecting the application u/s 391, Code of Criminal Procedure 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 u/s 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.