1. The revision petitioners are Accused Nos. 2 and 4 in Calendar Case No. 30 of 1994 on the file of the Court of IX Metropolitan Magistrate, Hyderabad. They along with Accused Nos. 1, 3, 5 and 6 were arraigned for offences punishable under Secs. 120-B, 420, 406 and 411 of the Indian Penal Code, 1860. The trial Court convicted all of them for offences under Sec. 120-B, 420, 406 and 411 of I.P.C and recorded different sentences for the several accused. Aggrieved, the revision petitioners A-2 and A-4 filed Criminal Appeal No. 130 of 2001 before the Metropolitan Sessions Judge, Hyderabad. In the appeal, the State filed Crl. M.P No. 1292 of 2002 under Section 391 of Cr. P.C for receiving additional evidence, namely, the question-cum-answer papers attached to Exs. P-81 to P-84 by examining Investigation Officer-PW. 48 after recalling him. This application of the State was allowed by the order dated 14-11-2002, where against this revision is filed.
2. By the order impugned, the Court below recorded that A-3 and A-4 had indisputably appeared for the EAMCET-1993 examination at Nellore; that during the process of investigation, xerox copies of answer scripts of these accused were sent to PWs. 37, 38 and PW. 58-experts in the several subjects for which these accused appeared at the EAMCET-1993, for the purpose of ascertaining whether the answers given by these accused disclosed their preknowledge of the question papers, the leakage of which and the complicity of the accused in such conduct lead to the prosecution; that PWs. 37 and 38 had offered their remarks after examination of photostat copies of the Physics and Chemistry answer scripts of A-3 and A-4 and that though the original answer scripts of A-3 and A-4 were collected by the Investigation Officer-PW. 48 during his investigation and were filed along with the charge sheet in the trial Court, they were not marked through PW. 48. On these factual circumstances, the Court below-the appellate Court, the Metropolitan Sessions Judge, Hyderabad was satisfied that for the coming to a just conclusion in the appeal, the original answer scripts of A-3 and A-4 in the EAMCET-1993 are required to be received as additional evidence in the appeal and, therefore, allowed the petition of the State permitting the prosecution to produce the question-cum-answer papers of A-3 and A-4 in EAMCET-1993 as additional evidence by recalling PW. 48-Investigation Officer. Sri C. Padmanabha Reddy, learned counsel for the 2nd revision pettioner-A-4 submitted that as a result of the order impugned in this revision, the prosecution is enabled to fill up the lacuna in the prosecution case and that but for this evidence the accused have a fair chance of success in the appeal as there is no material evidence in the form of answer papers of A-3 and A-4, that will permit a legitimate inference of their pre-knowledge of the question papers of EAMCET 1993. It is his contention on the basis of these assertions that permitting the prosecution to fill up the lacuna at the appellate stage constitutes illegal and unwarranted exercise of discretion by the appellate Court under Section 391 of Cr. P.C Sri Govinda Reddy, learned counsel for the first revision petitioner-A-2 reiterates what has been submitted by Sri C. Padmanabha Reddy and in addition he submits that as the appeal was preferred by the accused aggrieved on their conviction by the trial Court, it was not permissible for the prosecution to have filed an application for adduction of additional evidence in such an appeal.
3. Section 391 of the Code of Criminal Procedure, 1973 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 Sessions or a Magistrate.
2. When the additional evidence is taken by the Court of Sessions 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.
4. The powers of an appellate Court in dealing with an appeal are stated in Section 386 Cr. P.C It enacts that the appellate Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; and in an appeal from a conviction reverse the finding and sentence and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial; or alter the finding, maintaining the sentence; or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
5. In the exercise of appellate 40 jurisdiction, Sections 386 and 391 of Cr. P.C are complimentary provisions. Where in an appropriate case, the appellate Court is satisfied, in exercise of its appellate discretion that adduction of additional evidence is conducive to the just dispensation of the appeal, the appellate Court is consecrated the jurisdiction, on recording reasons, to permit additional evidence to be recorded, by itself recording such evidence or by directing evidence to be taken by a Magistrate and in a case where the appellate Court is the High Court by directing the Court of Sessions or of a Magistrate, to record such evidence.
6. The legislative purposes underlying the enactment of Section 391 of Cr. P.C and its scope and effect fell for the consideration of the Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat (1) 2004 Cri. L.J 2050, The apex Court spelt out the scope of Section 391 of the Code as under:
“50. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.
51. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391.
52. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As reiterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The case of the community deserve equal treatment at the hands of the Court in the discharge of its judicial functions.
53. In Rambhau v. State of Maharashtra ((2001) 4 SCC 759) it was held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the case has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons.
54. Need for circumspection was dealt with by this Court in Mohanlal Shamji Soni's case (supra) and Ram Chander v. State of Haryana ((1981) 3 SCC 191) which dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in short the ‘Old Code’) and also in Jamatrai's case (supra). While dealing with Section 311 this Court in Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi ((1999) 6 SCC 110) held as follows:
“It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not “fill the lacuna in the prosecution case”. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage “to err is human” is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a Court cannot fill up.
Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the original Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better”.
55. Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is the proper procedure will depend on the facts and circumstances of each case for which no strait-jacket formula of universal and invariable application can be formulated.
56. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e to find out the truth and dispense justice impartially and ensure also that the very process of courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice.
57. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the case brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of Courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.
58. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e to render justice, in a case where the role of prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.
59. As pithily stated in Jennison v. Backer (1972 (1) All ER 1006), “The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope”. Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious, deficiencies. Courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhobe, ((2003) 7 SCC 749).”
7. The primary and substantive purposes of the judicial branch as an organ of the State is to effectuate the values by which the society professes to regulate the conduct of its citizens as expressed in legislation or legislative instruments. The Criminal law of the land is one such expression of the communities' social values. Criminal procedures are explication of those procedures identified as fair procedures for administration of the criminal law of the land. Section 391 consecrates a discretion in the appellate Court to take further evidence or direct such evidence to be taken, where the admission of such further evidence on to the appellate record is considered essential for arriving at the truth of the matter.
8. The omission of the prosecution in the case on hand either inadvertently, consciously or by incompetence to have marked the answer scripts of A-3 and A-4 into evidence, had in the considered view of the appellate Court potentially subverted the holistic cause of public justice. To remedy this injury to public interest the appellate Court has considered it appropriate to allow the application of the prosecution even in an appeal preferred by the accused, to let in additional evidence of the answer scripts of A-3 and A-4, in the appeal.
9. The contention of Sri Govinda Reddy learned counsel for the first revision petitioner that an application of additional evidence could not have been made by the prosecution in an appeal by the accused, is a submission that does not commend itself to acceptance by this Court. The application either of the prosecution or of the accused in an appeal is an instrument that sensitizes the discretion of the Court. The Court is required to exercise its discretion on sound judicial principles informed by tradition and consecrated by public policy of the criminal justice system and not by whim. The discretion of the appellate Court is a power conferred on the Court, which is required to be exercised when the circumstances so warrant. That discretion and power are coupled with a duty that is inherent in the jurisdiction of the appellate Court. It does not depend on whether an application is made by the prosecution or the accused-appellants. In view of the principles of law declared by the Supreme Court (supra) on the scope and ambit of Section 391 of the Code and having regard to the impeccable reasons recorded by the learned Metropolitan Sessions Judge in the order dated 14-11-2002 allowing Crl. M.P No. 1292 of 2002 in Crl. A. No. 130 of 2001, this Court finds no warrant for interference.
10. Accordingly, the Criminal Revision Case is dismissed.
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