CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 14, 2009 Harjit Singh .....Petitioner VERSUS The State of Punjab and others ....Respondents 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. Vijay Rana, Advocate, for the petitioner. **** RANJIT SINGH, J. On the basis of a complaint filed by the petitioner, respondent Nos.2 and 3 and one Gurbakash Singh were prosecuted for offences under Sections 419, 420, 467, 465, 467, 468, 471 and 120-B IPC. Judicial Magistrate Ist Class, Jalandhar acquitted them of the charges on 19.5.2008. The State filed an appeal against this before the Sessions Judge, Jalandhar. During the pendency of appeal, the petitioner filed an application under Section 311 Cr.P.C. before the Appellate Court seeking permission to allow him to place photo copy of judgment dated 19.2.2008 on record by examining the concerned official of the court to prove the judgment. The prayer to CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 2 }: place on record this judgment is made on the ground that the same is material evidence to show that power of attorney executed by Amarjit Singh is not genuine document and hence the sale deed was also not genuine. This prayer of the petitioner was declined by the Appellate Court on 9.9.2009, which is now impugned before this Court through this present Misc.Petition filed under Section 482 Cr.P.C. As can be noticed, this complaint was filed on 28.10.1997 by the petitioner when this FIR was lodged. Challan was presented in this court on 10.4.2000. The judgment dated 19.2.2008 obviously was not in existence and was not the document, which was part of the challan. The trial ended in acquittal of the respondents on 19.5.2008 and it is now that request is made for leading additional evidence to place the judgment dated 19.2.2008 on record. The Appellate Court has declined this request on the ground that this evidence was not part of the final record and no permission was sought for leading this additional evidence before the trial court. It is further observed that allowing this prayer at this stage would cause serious prejudice to the accused and, thus, the application is declined. 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 Sections 311 Cr.P.C and 391 Cr.P.C respectively. Since no such prayer was made for leading additional evidence during the course of trial in this case, the considerations that are essential to be kept in view in terms of Section 311 Cr.P.C may not arise at the appellate CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 3 }: stage and this request, at this stage, basically would be regulated by the provisions of Section 391 Cr.P.C. Reference here can be made to the observations recorded in Criminal Revision No.376 of 2008 (Yashpal Vs. The State of Punjab) decided on 12.9.2008. It was noticed that essentially there is a difference in the wording of Sections 311 Cr.P.C and 391 of the Code. Both the Sections relate to power of the Court for taking additional evidence, one at the stage of trial and the second at appellate stage. It was observed that to say that same consideration would arise in both the situations would not be appropriate. There is essentially a difference in both the stages. Section 311 Cr.P.C.is available before the court at the stage when both the parties are in the process of leading evidence and the Court is yet to come to any final conclusion in regard to guilt or otherwise of the person being prosecuted before it. Section 311 Cr.P.C. has been a subject matter of interpretation in large number of cases and has been construed to be very wide in its scope. One part of the Section has also been held to be mandatory and it leaves a mandate for the Court to summon and examine, recall and reexamine any person, if evidence appears to be essential for the just decision of the case. This wide discretion apparently may not be available before the Appellate Court while exercising powers under Section 391 Cr.P.C. The Section is worded 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 some reason CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 4 }: and purpose and it could be that at the stage of trial, the Court is yet to arrive at a decision whereas the Appellate Court would be dealing with a case when the decision has already been made and the question then before the Court is to see whether such decision was to be interfered with or not while considering the appeal. It appears that in this background, 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 while exercising powers under Section 391 Cr.P.C and it is to record its reasons while directing recording of additional evidence at appellate stage. The obligation, thus, is apparently different at the stage of appeal. It is, thus, reasonable to say that the consideration for allowing additional evidence at the stage of appeal would be different than those are before the Trial Court while exercising power under Section 311 Cr.P.C. In the background as afore-mentioned, it is now to be seen if this application filed by the petitioner under Section 311 Cr.P.C at the appellate stage would first be maintainable or if the petitioner has laid down proper basis for permitting him to lead evidence even if his prayer is to be considered under Section 391 Cr.P.C. Without going into the technicalities about the maintainability of this application, the right of the petitioner to lead this evidence within the purview of Section 391 Cr.P.C may be seen. The evidence, which the petitioner wants to lead, certainly was not in existence during the major portion of the course of the trial. Judgment has now become available a few months before the final adjudication of the trial. The finding given by the civil court is on CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 5 }: the basis of evidence led there, whereas the finding of acquittal is based on the evidence which is led before the criminal court. The respondents, who were accused, were able to earn their acquittal and any additional evidence now at this stage would ultimately lead to reopening the trial. This evidence, if allowed, would have to be put to the accused persons also, besides giving them opportunity to lead evidence in support of their case as well. Counsel for the petitioner could not show how this evidence would be necessary at this stage. Since the discretion apparently is that of the Appellate Court, the discretion was so exercised. It does not appear to be suffering from any infirmity, which may call for interference. The case of Baljit and others Vs. State of Haryana and another, 2009(2) RCR (Criminal) 178, relied upon by the counsel for the petitioner, was a case where application was moved for recall of a witness at the stage of trial and as such may have no applicability in the present case. Zahira Habibulla H.Sheikh and Anr. Vs. State of Gujarat and Ors. 2004 (2) RCR (Criminal) 836, referred to by the petitioner, would also not help the cause of the petitioner. In this case, re-examination of a witness at appellate stage was prayed on the ground that he did not speak truthfully before the trial court, but was willing to speak truth before the appellate court. The Hon'ble Supreme Court observed that powers under Section 391 Cr.P.C. are to be exercised and such testimony could be accepted only if the appellate court is satisfied for reasons on record that such a course should be adopted. It is also observed in this case that the necessity for additional evidence arises when the court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or CRIMINAL MISC. M NO.31562 OF 2009 (O&M) :{ 6 }: erroneously brought in. None of these considerations would arise in the present case. There is, thus, no merit in the petition. The same is accordingly dismissed. December 14 ,2009 ( RANJIT SINGH ) ramesh JUDGE