Crl. Misc. No. M-29225 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-29225 of 2011 (O&M) Decided on : 23-09-2011 Gurmej Lal ....Petitioner VERSUS Mehar Chand ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. A.S.Sullar, Advocate for the petitioner MAHESH GROVER, J This petition is directed against the order dated 15.6.2011 whereby the prayer of the petitioner invoking the powers of Court under Section 391 Cr.P.C has been declined. The petitioner by way of additional evidence wanted to produce a witness in support of the document that has already been produced on record and marked. The facts of the case reveal that during the course of trial the petitioner had moved an application under Section 311 Cr.P.C to produce this document and prove it in accordance with law. Learned Trial Court granted an opportunity to the petitioner by exercising its power under Section 311 Cr.P.C. The petitioner instead of proving that document simply placed it on record as mark 'A' but did not produce any supporting evidence. The prayer of the petitioner in the complaint was not accepted which led to his filing an appeal before the Court of Additional Sessions Judge, Kurukshetra. During the pendency of the appeal an application Crl. Misc. No. M-29225 of 2011 (O&M) 2 under Section 391 Cr.P.C was moved praying for an opportunity to prove the said document which was a photocopy of the statement of account. The said prayer having been declined and as a result of which the instant petition has been filed. Learned counsel for the petitioner contends that power under Section 391 Cr.P.C is wide enough and the Appellate Court was not precluded from exercising such a power and merely because earlier an application under Section 311 Cr.P.C was allowed and the petitioner failed to prove the said document by adducing evidence on record cannot be a ground to decline the prayer under Section 391 Cr.P.C Section 391 Cr.P.C is extracted herebelow:- Section 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.” Crl. Misc. No. M-29225 of 2011 (O&M) 3 There is indeed no doubt that powers under Section 391 Cr.P.C can be exercised by the Appellate Court if it thinks that additional evidence is necessary for the proper adjudication of the matter and it may thereby after recording reasons take such evidence either itself or direct it to be taken by Magistrate but at the same time the power has to be exercised with caution and judiciousness. The facts of the case reveal that during the course of trial the petitioner was indeed granted an opportunity to produce and prove the statement of accounts which he now proposes to produce by way of additional evidence. The prayer of the petitioner under Section 311 Cr.P.C was allowed and he was granted the opportunity to produce and prove the document which according to him was essential for the just decision of the case. The language of Section 311 Cr.P.C confers a power upon the Court to summon any person as a witness or examine any person during the course of any stage of proceedings or trial or other proceedings and even to recall or re-examine any person already examined, if the evidence of such a person appears to it to be essential for just decision of the case. It is evident that power under Section 311 Cr.P.C can be exercised by the Trial Court when it is seized of an inquiry or trial or any other proceedings under the Code while power under Section 391 Cr.P.C gives power to an Appellate Court to permit the production of an additional evidence for the reasons to be recorded. The moot question therefore is that if the person has already been granted an opportunity under Section 311 to bring on record certain evidence then can such a person after availing the opportunity invoke the power under Section 391 Cr.P.C to produce on record the very same Crl. Misc. No. M-29225 of 2011 (O&M) 4 evidence regarding which an opportunity had already been given to him while exercising power under Section 311 Cr.P.C. It is not the case of the petitioner that some other evidence is required to be produced. What he wishes to prove is the statement of accounts regarding which he was given an opportunity under Section 311 Cr.P.C and at that time he merely produced on record a photocopy of the same without proving it in accordance with law. The exercise of power under Section 391 Cr.P.C in the given set of circumstances would thus be a sheer abuse as after having availed an opportunity to adduce the evidence and upon failure to do so, a right accrues to the respondent as well and the petitioner cannot be permitted to fill up the lacuna left in his case by now invoking the powers under Section 391 Cr.P.C. The Trial Court was thus right in declining the prayer. The Hon'ble Supreme Court in case titled as Ashok Tshering Bhutia Vs. State of Sikkim reported as 2011 (2) RCR (Crl.) 99 observed as under:- “In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C cannot be pressed into service in order to fill up lacunae in the prosecution's case.” Hence, dismissed. Needless to say that the Court is not powerless to examine the Crl. Misc. No. M-29225 of 2011 (O&M) 5 document which has come on record and marked even if it is not proved. September 23, 2011 (Mahesh Grover) rekha Judge