T. Vennila vs Thangavel @ Kumar, Ponnusamy, Lakshmi and State

A. Packiaraj, J.—This revision has been filed by the defacto complainant Vennila, against the Judgment passed by the 1st Additional

Sessions Judge-cum-Chief Judicial Magistrate, Erode in C.A. No. 69/1999 allowing the appeal and setting aside the conviction and sentence

passed by the Judicial Magistrate, Sathyamangalam in C.C. No. 7/98 convicting the respondents herein for offence u/s 4 of Dowry Prohibition

Act, 498A and 406 of I.P.C. and sentenced to undergo one year rigorous imprisonment on each of the counts and a fine of Rs.1000/-.

It may not be necessary for me to go deep into the facts of the case since what had been decided and what is to be decided is not in relation to

the facts and circumstances of the case but on the technical points raised by the petitioner herein. After the said conviction of the first three

respondents by the Judicial Magistrate, Sathyamangalam in C.C. No. 7/98 for offence u/s 4 of the Dowry Prohibition Act and 498-A and 406 of

I.P.C, they preferred an appeal in C.A. No. 69/99 before the 1st Additional Sessions Judge and while the same was pending the appellants before

the Appellate Court(Respondents 1 to 3 herein) filed two applications in Crl.M.P. No. 93/2000 u/s 391 I.P.C. and Crl.M.P. No. 409/2000 u/s

294 I.P.C. for the purpose of marking the exchanges of notices between the same parties and the decree order in H.M.O.P. No. 29/95 and that

of C.M.A. No. 5/99 divorce decree passed in favour of the first respondent herein. The petitioner as well as the prosecution had given their

consent for the said marking of the documents.

According to the learned counsel for the petitioner, the learned Sessions Judge could have either taken the evidence by himself by marking these

documents and allowed the petitioner to cross-examine the witnesses in relation to the materials produced afresh before the Appellate Court or

while keeping the appeal pending before it would have allowed the trial Magistrate to mark these documents and after allowing the petitioner to

cross examine the witnesses would have marked the documents and directed them to send such evidence before him and take them into

consideration as part and parcel of the Appellate records and decide the appeal. Instead of doing so, the learned Sessions Judge has allowed the

appeal thereby setting aside the conviction and sentence and has directed the Magistrate to record the evidence and to retry the accused. It is this

operative portion, the petitioner has objected to and rightly to in my opinion also.

A reading of Section 391 makes it abundantly clear that when an application is brought before the Appellate Court for adducing fresh evidence,

the Appellate Court if it thinks that additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to

be taken by a Magistrate and such evidence shall be taken before the Pleader or the accused as the case may be and while taking such evidence,

the Court shall adhere to Chapter XXIII of the Code which relates to the mode of taking and recording the evidence in enquiries and trials thereby

meaning that the other side has a right to cross-examine the witnesses in relation to the materials brought in evidence afresh but however this

Section does not authorise the Appellate Judge to set aside the conviction and sentence and remand the case back to the trial Judge for recording

evidence.

In my view, what the learned Sessions Judge had done appears to be improper. Hence, I set aside the Judgment passed by the 1st Additional

Sessions Judge-cum-Chief Judicial Magistrate in C.A. No. 69/99 and restore the conviction and sentence passed by the Judicial Magistrate,

Sathyamangalam and the Appeal is made to subsist on the file of the 1st Additional Sessions Judge - cum- Chief Judicial Magistrate and the

Additional Sessions Judge is directed to take evidence afresh in relation to the materials forming part in Crl.M.P. No. 93/2000 and 409/2000 on

its file and permit the prosecution to cross examine the witnesses in relation to such of those materials that has been brought afresh before deciding

the appeal.

With the above direction, the revision is allowed.