Case: Rambhau  Vs. State Of Maharashtra

There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same and the same reads asAppellate 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 aWhen 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 theThe accused or his pleader shall have the right to be present when the additional evidence isThe taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and another, AIR 1965 SC 1887 in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependent upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society.Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up to lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the C.P. Code.On the factual backdrop of the matter in issue, it appears that against an order of acquittal for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, the High Court reversed the finding of acquittal and held the accused persons guilty for the offence for which they were charged and convicted them for the offence under Section 13(2) of the Prevention of Corruption Act and sentenced the Appellant No. 1 to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- and as against accused No. 2, the imprisonment period was for one year together with a fine amount of Rs. 3,000/- and hence the Appeal before this Court.

Reasoning: 12. Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the roof of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs. 1300/- from PW 1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused persons are guilty of the offence for which they were charged and question of recording a finding of acquittal in the matter cannot by any stretch be sustained.