CRIMINAL REVISION NO.376 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 12, 2008 Yashpal .....Petitioner VERSUS The State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ashok Aggarwal, Advocate, for the petitioner. Mr. Mehardeep Singh, AAG, Punjab, for the State. Mr. Sanjiv Pandey, Advocate, for the complainant. **** RANJIT SINGH, J. The petitioner stands convicted for offences under Sections 498A and 406 IPC by JMIC, Ludhiana. The petitioner was sentenced to suffer RI for 2 years coupled with fine of Rs.1000/- under Section 406 IPC and RI for 1 year with fine of Rs.500/- for an offence under Section 498A IPC. The petitioner impugned his conviction for the said offences and sentence awarded to him by filing appeal before First CRIMINAL REVISION NO.376 OF 2008 :{ 2 }: Appellate Court at Ludhiana. During the pendency of appeal, the petitioner filed an application under Section 391 Cr.P.C., seeking permission to lead some additional evidence. This application was been declined by the First Appellate Court, which is now impugned through the present revision petition filed before this Court. The petitioner, an appellant before the Court of Additional Sessions Judge, Ludhiana, filed application for additional evidence by averring that he inadvertently could not prove enquiry report dated 5.1.1998 in a complaint made by him against his wife at Police Station Mukharji Nagar, New Delhi. This enquiry report was allegedly given by one ASI Tek Chand. The petitioner further prayed for permission to place on record written statement filed by his wife and rejoinder thereto by him to a petition filed under Section 24 of the Hindu Marriage Act. Plea is that certain facts totally contrary to what has been stated before the Trial Court were averred in these pleadings. In addition, the petitioner also prayed for permission to prove application given by the appellant for reservation of his accommodation of Ooty Holiday Home. Claim of the petitioner is that all these documents are necessary for proper adjudication of the case and hence, permission sought by him be allowed. This prayer of the petitioner was opposed by the prosecution and also the complainant-wife. FIR in this case was lodged on 29.5.1997 and that charge was framed against the appellant on 13.8.1998. Parties were then allowed to lead evidence and 7 witnesses were examined on behalf of the prosecution. The petitioner then made a statement under Section 313 Cr.P.C. and had CRIMINAL REVISION NO.376 OF 2008 :{ 3 }: tendered certain documents including written statements and also copy of the enquiry report. No such prayer was made for leading any of these documents in evidence before the Trial Court. As per the petitioner, this could not be done inadvertently and so prayer has now been made under Section 391 Cr.P.C. at the appellate stage. I have heard learned counsel for the parties. The rights of the parties to lead additional evidence and the duty and responsibility of the Court in this regard at the trial and appellate stage in a criminal case is regulated by the provisions of Section 311 Cr.P.C and Section 391 Cr.P.C. respectively. Since no such prayer was made for leading additional evidence during the course of trial, the considerations that are essential to be kept in view in terms of Section 311 Cr.P.C. may not arise at the appellate stage and this request, at this stage, basically would be regulated by the provisions of Section 391 Cr.P.C. Some interesting debate has ensued in regard to the contents of these two provisions. Learned counsel for the petitioner maintained that virtually same consideration would arise for grant of permission to lead additional evidence whether be it under Section 311 Cr.P.C. or under Section 391 Cr.P.C. at the stage of appeal. In support of his submission, he drew some solace from the observations made by this Court in Jarnail Singh Vs. State of Punjab, , 1990 Crl.L.J. 2310. In Jarnail Singh's case (supra), the court, in my view, has not examined the provisions of Section 311 Cr.P.C. and Section 391 Cr.P.C. in regard to the considerations that are to be viewed while allowing or granting the permission for CRIMINAL REVISION NO.376 OF 2008 :{ 4 }: additional evidence. In this case, short prayer made before the Court was that the Appellate Court could not have passed the orders, re- summoning, re-calling or re-examining the police officials, whose affidavits had already been tendered in evidence before the Trial Court as that power is available under Section 311 Cr.P.C. and Court under Section 391 Cr.P.C. could only direct further evidence to be taken if some additional evidence was necessary and that too after recording its reasons. Thus, it is seen that the objection was only to re-summoning, re-calling or re-examining of a witness already examined at the appellate stage and this according to the submissions made in the case of Jarnail Singh's case (supra) could only be done by the Trial Court under Section 311 Cr.P.C. This argument was found devoid of merit and it is held that power to summon material witness and recall or re-examine any person already examined as contemplated under Section 311 Cr.P.C. can be exercised by the Trial Court as well as by the appellate Court. Once the Court finds the evidence to be essential for the just decision of the case, the Court would have uninhibited powers to summon any witness in the manner as laid down in Section 311 Cr.P.C. during the course of trial. It would not be possible to say that such power of recall or reexamine of a witness, already examined would not be available to the Appellate Court in exercise of its power under Section 391 Cr.P.C. if additional evidence was considered necessary and reasons in this regard are recorded. In both the cases the conditions to be satisfied are the necessity of the additional evidence or it being essential for just decision of the case. The CRIMINAL REVISION NO.376 OF 2008 :{ 5 }: additional evidence can be recorded in the form of additional witness or by recalling, reexamining or re-summoning the witness already examined. Essentially, there is a difference in the wording of Section 311 Cr.P.C. and that of Section 391 of Cr.P.C. Both relates to the power of the Court for taking of additional evidence, one at the stage of trial and another at the appellate stage. To say that same consideration would arise in both the situations, would not be very appropriate. There is an essential difference in both the stages. Section 311 Cr.P.C is available before the Court at a stage when both the parties are in the process of leading evidence and the Court is yet to come to any conclusion in regard to guilt or otherwise of the person being prosecuted before it. Section 311 Cr.P.C has been subject matter of interpretation in large number of cases by various Courts including the Hon'ble Supreme Court. The consistent view has been that this Section is in two parts and leaves very wide discretion with the Court to summon any witness at any stage of enquiry, trial or other proceedings, who may be a person as a witness or is in attendance whether summoned or not. The Court has also power to recall and reexamine any person already examined. The second part of the Section, however, is differently worded and provides that the Court shall summon and examine or recall and reexamine any such person if his evidence appear it to be essential to the just decision of the case. The second part of the Section has been held to be mandatory and it accordingly mandates the Court to summon and examine recall and reexamine any person if his CRIMINAL REVISION NO.376 OF 2008 :{ 6 }: evidence appears to be essential to the just decision of the case. Word `appears' used in the Section would further signifies that evidence should be seen to be essential for the just decision of the case for the Court to permit the same. This wide discretion apparently is not available before the Appellate Court while exercising power under Section 391 Cr.P.C. It is worded also differently. It reads that in dealing with any appeal under this chapter, the appellate Court if it thinks additional evidence to be necessary, it shall record its reason and may either take the evidence itself or direct it to be taken by the Magistrate etc. The words `essential to the just decision of the case' are obviously missing in Section 391 Cr.P.C. This appears to be with reason and purpose. At the stage of Section 311 Cr.P.C, the Court is yet to arrive at a decision whereas the Appellate Court is dealing with a case when the decision has already been made and the question before it is whether such decision is to be interfered with or not in an appeal. It is in this context, the legislature has provided that the additional evidence, if thought necessary, may be taken either by the Court itself or it may direct the Magistrate to do so. There is another added obligation on the part of the Court and that is to record its reasons while directing this additional evidence to be so recorded at appellate stage. The obligation, thus, is apparently different at the stage of appeal. It is, thus, not possible to accept the view that the consideration for allowing additional evidence at the stage of appeal would be the same as would be before the trial Court while exercising jurisdiction under Section 311 Cr.P.C. Neither the wording nor the CRIMINAL REVISION NO.376 OF 2008 :{ 7 }: context nor the stage can lead to such a view as has been canvassed. It may need a notice here that at the appellate stage, the Court may be interfering with the order of acquittal if it finds that this has flowed on account of some lack of evidence, which could be led. It may also be a case where the Appellate Court finds that the conviction though has been recorded but can not be maintained unless some other evidence, which was necessary, had not been recorded. That is why there is an obligation on the part of the Court to records its reason while permitting additional evidence at the appellate stage whereas there is no such obligation on the part of a Court while the case is being tried and Court is dealing with the same under Section 311 Cr.P.C. The prejudice which may result to an accused person by any order which is made under Section 391 Cr.P.C., would certainly be pronounced as it may lead to interfering in his acquittal, which is not so while the Court exercised jurisdiction under Section 311 Cr.P.C. Thus, the view that same consideration would arise for allowing or disallowing the additional evidence at the stage of trial and the appellate stage can not be accepted. In the background as afore-mentioned, it is now to be seen if there is any infirmity in the impugned order whereby the prayer of the petitioner, who has been convicted for leading additional evidence is declined. Not only that, it is also to be seen if the evidence which the accused now wants to lead as an additional evidence at the appellate stage would be such which is otherwise admissible. This aspect ofcourse was not debated before the first CRIMINAL REVISION NO.376 OF 2008 :{ 8 }: Appellate Court and as such, has escaped its notice. The petitioner has been convicted. He has impugned his conviction and in addition to the grounds taken in appeal, he now says that he failed to adduce some evidence, which he now wants to produce before a Court. Obviously, he wants interference in order of his conviction on the basis of some material, which was not before the Trial Court. No viable reasons are forthcoming as to why this evidence could not be led by the petitioner during the course of trial. It is not that this evidence was not to his knowledge at that stage. The petitioner apparently is pleading inadvertence on his part in failing to bring this evidence on record. In fact, he seeks re-opening of his conviction and is pleading for his re-trial. He wants to prove on record an enquiry report dated 1.1.1998 in a complaint made by him against his wife at Police Station Mukharji Nagar, New Delhi. How the enquiry report can be taken on record as a substantive evidence has not been clarified. The enquiry report was allegedly given by one ASI Tek Chand. In case this enquiry report is to be taken on record, it would necessarily mean examination of ASI Tek Chand. Written statement filed by his wife and rejoinder thereto in a petition filed under Section 24 of the Hindu Marriage Act are the other documents which the petitioner is wanting to lead in evidence by way of additional evidence. How written statement and rejoinder can be taken as evidence and that too a substantive piece of evidence again is not clarified. The previous statement, even if contrary to the stand taken by a particular witness can be used only for the purpose of either contradiction or corroboration. These can not take the shape of a CRIMINAL REVISION NO.376 OF 2008 :{ 9 }: substantive evidence. Apart from other considerations, the evidence which the petitioner now wants to lead at the stage of appeal may not be open to be taken on record as an evidence, which is the prayer in the application, which has been declined. Even otherwise, large number of cases, the Court has taken a view that re-trial or leading of additional evidence can not be permitted where it would lead to filling up of lacunas in the prosecution. Reference may be made to Makhan Singh Vs. State of Punjab, 1992 (2) RCR 109. In Shyam Lal Vs. State of Haryana, 1986 (1) RCR (Criminal) 555, the order remanding the case back for retrial was held unjustified on the ground that it would lead to allowing the prosecution to fill in the lacuna in its case. In Machander Vs. the State of Hyderabad, 1956 The Punjab Law Reporter 163, the Hon'ble Supreme Court made very relevant observations in regard to re-opening of the case where some questions had not been asked to the accused while rejecting the prayer for retrial the Hon'ble Supreme Court observed as under:- “ We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude CRIMINAL REVISION NO.376 OF 2008 :{ 10 }: must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. Except in clear cases of guilty, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made in the lower courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not and one broad rule must apply in all cases.” Thus, the Hon'ble Supreme Court has clearly observed that neither the prosecution nor the accused should be permitted to repair the effects of their bungling and they are not to be permitted to repair gaps in their case or in the defence left if any, which the accused could and ought to have made in the lower Courts. The scale of justice, as per the above observations of the Hon'ble Supreme Court, are to be kept on an even balance whether for or against the accused or whether in favour of the State or not and one broad rule is to apply to all cases. The present attempt on the part of the petitioner is nothing but to repair the gaps which may have been left in his defence and which he ought to have made up while the trial was on before the Trial Court. It is now a stage of appeal. The petitioner has already been convicted. He certainly can not be CRIMINAL REVISION NO.376 OF 2008 :{ 11 }: permitted to lead this additional evidence, which is not considered to be evidence in strict sense and certainly not necessary which would be the essential requirement before the court could permit leading of such an evidence. The impugned order, thus, will not call for any interference in exercise of revisional jurisdiction. The present revision accordingly is dismissed. September 12,2008 ( RANJIT SINGH ) khurmi JUDGE