Vinod KAndiyal vs State Of Uttarakhand & Another

Manoj K. Tiwari, J.

In this criminal miscellaneous application, under Section 482 Cr.P.C., applicant has challenged the order dated 16.11.2018 passed by learned 1st Additional Sessions Judge, Rishikesh, Dehradun, whereby application filed by the applicant under Section 391 of Cr.P.C. has been rejected.

It transpires that a complaint under Section 138 of Negotiable Instruments Act, was filed against the applicant by one Megh Singh Pokhriyal (respondent No. 2 herein). Applicant was convicted by learned trial court and sentenced to undergo six months simple imprisonment and was further directed to pay Rs.5.00 lakh as compensation to the complainant and fine of Rs.5,000/- was also imposed upon him vide order dated 23.03.2018. Thereafter, applicant filed an appeal, against the said judgment passed by learned trial court, in the court of 1st Additional Sessions Judge, Rishikesh, which was registered as Criminal Appeal No. 63 of 2018. Before learned appellate court, applicant filed an application under Section 391 read with Section 311 of Cr.P.C. seeking permission to further cross-examine the complainant on the ground that he was earlier not properly cross-examined. The said application was rejected by learned appellate court vide order dated 16.11.2018.

Thus, feeling aggrieved, applicant has preferred present application under Section 482 Cr.P.C. before this Court.

Section 391 of the Code of Criminal Procedure, 1973 is extracted below:-

"391. 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."

A bare perusal of aforesaid provision makes it clear that Section 391 of Cr.P.C. invests the appellate court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before the trial court, power under the section has to be exercised with caution and circumscription so as to meet the ends of justice and not as a matter of course.

Hon'ble Supreme Court in the case of Rambhau & another Vs State of Maharashtra reported in (2001)4 SCC 759 has held that the object of Section 391 is not to fill any lacuna but to subserve the ends of justice.

Although Section 391 of Cr.P.C. confers wide discretion upon the appellate court to take additional evidence, however, an accused, who has had full opportunity of defending himself before learned trial court, cannot claim production of additional evidence, under Section 391 of Cr.P.C., as a matter of right.

Since the applicant had full opportunity of defending himself before learned trial court, therefore, he cannot insist upon production of additional evidence only on the ground that complainant could not be properly cross-examined. Thus, this Court finds no reason to interfere with the order passed by learned appellate court, which is under challenge. Accordingly, criminal miscellaneous application fails and is hereby dismissed.

However, this order will not preclude the applicant from raising any contention, which is available to him under law, before the learned court below.