Ram Kishun Tanti @ Ram Krishna Das vs Kusmi Devi and Another

S.N. Jha, J.—Heard counsel for the Petitioner and the opposite party.

This application is directed against the order dated 20th January, 1994 by which the 5th Additional Sessions Judge, Begusarai has rejected the prayer of the Petitioner for taking further evidence in terms of Section 391 of the Code of Criminal Procedure. The learned Judge seems to be of the view that the power envisaged u/s 391 can be exercised only by the appellate court and not the revisional court. The conclusion of the learned Judge is in the teeth of the express provisions of Section 401 read with Section 399 of the Code. The provisions of the two sections read together make it amply clear that the High Court''s power of revision embraces within its fold all the power conferred on the court of appeal including u/s 391 and that the said power of the High Court can be exercised by the Sessions Judge as well u/s 399. The impugned order, in my opinion, there fore, has to be set aside on this ground alone.

Counsel for the opposite party, however, contended that the learned Judge has gone into the facts and recorded an adverse finding. The scope of power conferred under, Section 391 has been delineated by the several decisions of the courts including the Supreme Court. What the learned Judge was required to do was to consider the matter in the light of the law laid down by the Courts. I am of the opinion that the impugned order is liable to be set aside on this ground as well.

In the result, the revision is allowed. The court below is directed to consider the matter afresh and pass reasoned order within one month from the date of receipt of a copy of this order.

Let the records be transmitted to the court concerned immediately.