THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.1754 OF 2009 ORDER: This Revision has been filed challenging the order dated 06-10-2009 passed by the III Additional District and Sessions Judge (FTC) at Medak in Criminal M.P. No.114 of 2009 in Criminal Appeal No.80 of 2008. The brief facts of the case are as follows : The petitioner was tried for the offence punishable under Section 409 of I.P.C. in C.C. No.81 of 2005 on the file of Judicial Magistrate of First Class, Medak, and he was found guilty for the said offence by the Judgment dated 29-10-2008. According to the learned counsel for the petitioner, the petitioner was convicted and sentenced to suffer imprisonment for two and half years. Challenging the said judgment, he filed Criminal Appeal No.80 of 2008 on the file of III Additional District and Sessions Judge (FTC) at Medak. Pending the appeal, he filed an application under Section 91 of Cr.P.C. praying to summon the Municipal Commissioner of Medak to produce challan No.559, 560 dated 15-10-2001 and challan No.617 and 618 dated 16-01-2001, challan No.557, 558 and 81 dated 12-01- 2001 and to the Director, Municipal Administration of Hyderabad to produce acquaintance register for the year 2001 for appropriate adjudication of the case. The said petition was returned with an endorsement ‘how the petition is maintainable in appellate Court?’ Challenging the same, he filed Revision in Criminal Revision No.1495 of 2009, this Court by order dated 10-09-2009 observed that “the relevant provision which enables the appellate Court to take further evidence is under Section 391 of Cr.P.C. and the petitioner without making a request to the appellate Court to invoke jurisdiction under Section 391 of Cr.P.C. straight away filed petition under Section 91 of Cr.P.C. to summon documents stated above. Until the Court permits the petitioner to adduce his additional evidence, the question of issuing summons to the persons to produce documents does not arise.” Holding so, the Revision petition was dismissed. Then, the petitioner filed Criminal M.P. No.114 of 2009 under Section 391 of Cr.P.C. seeking permission to adduce additional evidence. The lower Court holding that no suggestion was made to PWs 1 to 10 that the amount alleged to have been misappropriated was deposited through the challan and that no such petition was filed before the lower Court, dismissed the said petition. The learned counsel for the petitioner submitted that the petitioner had no knowledge about these challans and availability of the challans and therefore he could not file a petition before the lower Court. His main submission is that, the accused should be given a reasonable opportunity to adduce evidence in his defence. It is also his submission that, Section 391 of Cr.P.C. empowers the appellate Court to receive evidence. Section 391 of Cr.P.C. is as follows : 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. The Courts have to exercise their discretion judiciously and not arbitrarily. Exercising discretion judiciously means giving fair opportunity to the parties and every order must be supported by sound reasoning. The accused has a right to adduce evidence in his defence. The above referred Section 391 of Cr.P.C. empowers the appellate Court to receive additional evidence. The petitioner’s case is that all the files were seized by the Municipal Authorities pending enquiry and in the above circumstances, he could not file a petition before the lower Court for summoning those documents. It appears that the petitioner has assigned valued reasons for not filing the petition before the lower Court for summoning the documents even otherwise, when the petitioner/accused was to produce and seeks permission to adduce further evidence in support of his defence case, he should be permitted to adduce evidence. Denying permission to adduce evidence violates the principles of natural justice. Moreover, the technicalities should not come in the way of doing ultimate justice. The endeavour should be to do complete justice to the parties and to treat all the parties equally. Therefore, the prosecution and the accused both should be given reasonable opportunity to adduce evidence. When the petitioner intends to adduce additional evidence, the prosecution also should be given an opportunity to cross-examine the defence witnesses and to file the documents which they want to rely upon in support of their case. Subject to the observations made supra, the impugned order is set aside consequently, the Criminal M.P. No.114 of 2009 stands allowed. The appellate Court is also directed to follow the procedure prescribed under Section 391 of Cr.P.C. and dispose of the Appeal as early as possible preferably, within a period of three months from the date of receipt of a copy of this order. Accordingly, the Criminal Revision Case is allowed. ____________________ B. CHANDRA KUMAR, J Date: 28-10-2009. DSH