Pramod Gupta vs State of M.P.

Brij Kishore Dube, J.—This petition u/s 482 of Cr.P.C. is preferred for quashing the order dated 21.11.2012 passed by the Sessions Judge, Bhind in Criminal Appeal No. 177/2012 whereby an application u/s 391 of Cr.P.C. filed by the petitioner herein/accused has not been decided. Learned counsel for the petitioner submits that during the course of hearing of criminal appeal, the petitioner herein/accused submitted an application u/s 391 of Cr.P.C., for taking additional evidence, i.e., examining Head Constable, Shiv Dayal, who had been mechanically examined the vehicle but the Court below neither allowed the application nor rejected the same, but deferred for deciding it at the time of final hearing. It is further submitted that Section 391 of Cr.P.C. provides that the application has to be decided before hearing the final arguments of appeal. Learned counsel further submits that the impugned order passed by the Court below is against the law, therefore, the impugned order may be set-aside and a direction may be issued to decide the application before hearing the appeal finally to the Court below.

In response, learned Public Prosecutor has argued in support of the impugned order and prayed for rejection of the petition.

It is transpired from the record that vide judgment of conviction and order of sentence dated 08.05.2012 passed by J.M.F.C., Bhind in Criminal Case No. 152/09, the petitioner herein/accused, Pramod Gupta has been convicted under Sections 304-A, 338 and 337 of IPC and sentenced to suffer two years rigorous imprisonment with fine of Rs. 2,000/-, six months rigorous imprisonment with fine of Rs. 600/- and three months rigorous imprisonment with fine of Rs. 400/- respectively. Feeling aggrieved thereof, the petitioner preferred an appeal on 04.06.2012, it was admitted on 05.06.2012 for final hearing and during the pendency of appeal on 19.10.2012, the petitioner filed an application u/s 391 of Cr.P.C. for taking additional evidence, i.e., for examining the Head Constable Shiv Dayal. The application was considered and vide order dated 21.11.2012, the learned Sessions Judge kept the application pending with an observation that the same shall be considered and decided at the time of final arguments and fixed the case for final arguments. The relevant part of the order reads as under:-

It would be useful to quote the Section 391 of Cr.P.C. which reads as under:-

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.

From a reading of the aforesaid provision, it is evident that the opening words of sub-section (1) of Section 391 clearly suggests that the application moved u/s 391 of Cr.P.C. 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 provisions of Section 391 of Cr.P.C. 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, the Court if comes to the conclusion that the additional evidence is unnecessary then while deciding the appeal, application moved u/s 391 Cr.P.C. can be dismissed. If such additional evidence appears necessary for rendering 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 Court may also remand back the matter to the trial Court for the purpose of recording additional evidence as provided under sub-section (2) of the said section 391 of Cr.P.C., therefore, the whole scheme of Section 391 of Cr.P.C. suggests that like civil cases an application for taking additional evidence on record u/s 391 of Cr.P.C. should also be considered 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 applications are disposed of without hearing the appeal on merits, then there may be cases of failure of justice. ( Dharmendra Vs. State of M.P., . For the foregoing reasons and peculiar facts and circumstances of the case, this Court in exercise of powers u/s 482 of Cr.P.C. does not find any ground to interfere in the impugned order. This petition is devoid of any merit and is, therefore, dismissed.