State of Haryana vs Shailesh Gupta

Sabina, J.—State has come in revision against the order dated 26.3.2008, whereby, the Appellate Court had dismissed the application moved by the State for permission to lead additional evidence. Learned State counsel has submitted that the application for permission to lead additional evidence was liable to be allowed as the witnesses, now sought to be examined by way of additional evidence, were very necessary for the just decision of the case. The material witnesses had been inadvertently given up by the public prosecutor during trial.

Learned counsel for the respondent, on the other hand, has submitted that the Appellate Court had rightly dismissed the application moved by the prosecution for permission to lead additional evidence as the said witnesses were given up by the public prosecutor during trial. Hence, the prosecution could not be allowed to fill up the lacuna in its case.

Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) 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.

Thus, as per the above provision, Appellate Court can take further evidence in appeal if it thinks that the said additional evidence is necessary for the just decision of the case.

In the present case, respondent had faced trial under Sections 420, 467, 468, 471, 409 of the Indian Penal Code, 1860 (IPC for short) in FIR No. 197 dated 20.7.2006 registered at Police Station Hodal District Faridabad. The trial Court convicted and sentenced the respondent qua commission of offence punishable u/s 420 IPC but acquitted the respondent of the remaining charges framed against him. Respondent has filed an appeal challenging his conviction and sentence u/s 420 IPC, whereas, the State has filed an appeal challenging the acquittal of the respondent under Sections 409, 467, 468, 471, 120-B IPC.

During the pendency of the appeal filed by the State, an application was moved for permission to lead additional evidence by the State. The State by way of additional evidence wants to examine R.K. Sharma, Additional General Manage (Proc.) and B.L. Kapoor, Additional General Manage (Audit), before whom the respondent had suffered extra judicial confession. The officers of the OBC Bank and Co-operative Bank, Hodal were also necessary to be examined but they had not been cited as witnesses by the police.

The Appellate Court, while dismissing the application moved by the State, has observed as under:-

After hearing both the parties and careful perusal of facts and circumstances as well as law cited before me. I am of the considered that the application in hand is not maintainable. Perusal of lower court record reveals that an application u/s 311 Cr.P.C. for additional evidence was moved by Stata/ Prosecution for examination of witnesses namely O.P. Sharma, R.K. Sharma, Ravinder Aggarwal and Sita Ram and the said application was allowed by learned trial court vide order dated 9.3.2007. However, on 15.3.2007 all these four witnesses were present but prosecution examined only two witnesses namely R.K. Sharma and Sita Ram whereas Pws O.P. Sharma and Ravinder Aggarwal were given up by learned APP as unnecessary witnesses and closed the evidence. In these circumstances, when Sh. R.K. Sharma, Addl. G.M. has already been examined before learned trial court by the prosecution, then he cannot be allowed to be reexamined at the appellate stage and similarly the other witnesses can also not be allowed to be examined to fill up lacuna in the prosecution case on the basis of which benefit of doubt has already been given to the respondent-accused by learned trial court. In these circumstances, the authority (supra) relied upon by learned PP for the applicant-State is not applicable to the facts of the case in hand.

Thus, the Appellate Court has merely dismissed the application filed by the State for permission to lead additional evidence on the ground that the State could not be allowed to fill up lacuna in its case. The Appellate Court has failed to examine the aspect as to whether the witnesses, now sought to be examined, were necessary for the just decision of the case or not. As per Section 391 Cr.P.C., the Appellate Court can allow additional evidence to be led in appeal if it is necessary for the just decision of the case. The said material aspect has not been gone into by the Appellate Court while deciding the application moved by the State for permission to lead additional evidence. The allegations levelled against the respondent were that huge shortage had been detected with regard to wheat and mustard stock.

In the facts and circumstances of the present case, it would be just and expedient to quash the impugned order and direct the Appellate Court to decide the application moved by the prosecution afresh by examining the material aspect as to whether the additional evidence, now sought be led by the prosecution, was necessary for the just decision of the case. Accordingly, this petition is allowed. The impugned order dated 26.3.2008 is set aside. The Appellate Court is directed to pass a fresh order in accordance with law on the application moved by the prosecution for permission to lead additional evidence.