CRR No.3335 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-11.10.2010 Avtar Singh Arora son of Partap Singh Arora ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Siddarth Gupta, Advocate for Mr.Harmanjit Singh, Advocate for the petitioner. Mr.Shilesh Gupta, D.A.G Punjab. M ehinder S ingh S ullar , J . (Oral) The symposium of the facts, which need a necessary mention for a limited purpose of deciding the core controversy involved in the instant petition and emanating from the record, is that a criminal case was registered against the petitioner-accused Avtar Singh, vide FIR No.65 dated 9.6.1993 on accusation of having committed the offence punishable under section 408 IPC by the police of Police Station Sarabha Nagar, Ludhiana. 2. Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial Judge convicted and sentenced the petitioner- accused to undergo rigorous imprisonment for a period of two years, to pay a fine of Rs.3000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months for the indicated crime, by virtue of judgment of conviction and order of sentence dated 2.8.2006. 3. Aggrieved by the judgment of conviction and order of sentence, the petitioner-accused filed the appeal in the appellate Court. During the pendency of the appeal, he has also filed an application (Annexure P1) for leading additional evidence and for permission to him to appear as his own witness, invoking the CRR No.3335 of 2009 2 provisions of section 391 read with section 315 Cr.PC. The first appellate Court dismissed the same, vide impugned order dated 17.11.2009. 4. The petitioner-accused did not feel satisfied with the impugned order and filed the present petition. That is how I am seized of the matter. 5. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present petition deserves to be accepted. 6. As is evident from the record that the petitioner was convicted and sentenced by the trial Court under section 408 IPC owing to shortage of funds in accounts. The petitioner claimed that although he was in possession of sufficient material to account for entire amount but unfortunately for unforeseen reasons, he could not appear as his own witness before the trial Court and the additional evidence sought to be produced is stated to be very much essential for just decision of the case. The first appellate Court dismissed the application for additional evidence, by way of impugned order, the operative part of which is as under:- “After considering the rival contentions, the case laws produced before the court and perusing the record of the trial Court, I am of the view that the application is without any merits. The statement of the accused under section 313 Cr.P.C. Was recorded by the trial court on 8.3.2006 and thereafter 16 opportunities were granted to him for adducing the defence evidence. In his defence, he has examined three witnesses and closed the defence evidence on 2.8.2006 by giving statement. He has not chosen to depose himself as defence witness. The citations produced by him are not applicable to the case in hand because these citations does not relate to for appearing as a witness by the appellant in his defence evidence. Hence, these are distinguishable. Consequently, I am of the considered view that the application is without any merits. Hence, dismissed. To come up on 9.12.2009 for arguments.” 7. Here to me, the appellate Court slipped into legal error and did not record any cogent reasons for permission to petitioner to appear as his own witness and dismissed his application mainly on the ground that sufficient opportunities CRR No.3335 of 2009 3 were granted to him by the trial Court. No cogent reasons have been mentioned as to whether the production of additional evidence is essential or otherwise. 8. Section 391 Cr.PC postulates that “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. Such Court shall thereupon proceed to dispose of the appeal and the accused or his pleader shall have the right to be present when the additional evidence is taken. However, the taking of evidence, under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry or trial. 9. Sequelly, Section 315 posits that “any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that he shall not be called as a witness except on his own request in writing; his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. Meaning thereby, the appellate Court has the vast jurisdiction to allow the production of additional evidence. 10. What is not disputed here is that the petitioner was charged for the commission of offence punishable under section 408 IPC. According to the petitioner that he is in possession of the evidence, which would prove his innocence. Keeping in view the charge framed against the accused, to me, the production of additional evidence is essential to decide the real controversy between the parties. It is not a matter of dispute that the petitioner has filed the instant application in the appeal and prosecution is not going to be prejudiced in any manner, if the petitioner is allowed one opportunity to appear as his own witness, particularly when the prosecution can adequately be compensated with costs. CRR No.3335 of 2009 4 11. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal, the present revision petition is hereby accepted. Consequently, the impugned order is set aside and the first appellate Court is directed to provide one opportunity to the petitioner to appear as his own witness. However, this would be subject to payment of Rs.5000/- as costs by the petitioner to the State. 11.10.2010 (Mehinder Singh Sullar) AS Judge