BRIG. SUKHJEET SINGH (RETD.) MVC versus THE STATE OF UTTAR PRADESH & ORS.
[2019] 2 S.C.R. 458, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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BRIG. SUKHJEET SINGH (RETD.) MVC
 v.
THE STATE OF UTTAR PRADESH & ORS.
(Criminal Appeal No.148 of 2019)
JANUARY 25, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973 – s.391 – Additional
evidence in Appellate Court – A regimental Welfare Trust owned
various immovable properties including agricultural lands – On
18.10.1989, a deed of declaration of trust was executed by the
office of the trust claiming it to be a new trust without changing the
nature of the trust – On the same date, a resolution no.112 was
passed by the trustees where it authorized the appellant and the
other accused to act in the name of the trust and sell the agricultural
lands – Consequent to which, MOU was entered with the Trust and
respondent no.2 and other purchasers for purchase of land –
Respondent No.2 paid the earnest money – Sale was not executed –
Respondent no.2-complainant filed FIR u/s.420/406 of IPC against
the appellant and the other accused – Trial Court convicted
appellant and the other accused – Criminal Appeal was filed by the
appellant – During the pendency of the appeal, appellant filed
applications u/s.391 of the Cr.P.C. for placing on record the said
trust deed dated 18.10.1989 and resolution no.112, and to summon
witness to prove the same – Applications were rejected by the
Appellate Court – Appellant filed application u/s.482 of Cr.P.C.
against the order of the Appellate Court – High Court rejected
the
application u/s. 482 Cr.P.C. and held that applications u/s. 391
Cr.P.C. were filed by the appellant at a belated stage and the same
were filed with some ulterior malafide motive – On appeal, held:
High Court was not right in making observation that filing of
additional evidence was at a belated stage – Appellant was convicted
on 07.10.2013 and appeal was immediately filed on the next date,
i.e. 08.10.2013 – There was nothing on record to indicate that appeal
was being heard and at that stage the application u/s.391 of Cr.P.C.
was filed, thus, to call the application as filed at the belated stage
was unjustified – Furthermore, the application before the High Court
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cannot said to be filed with malafide motive of the accused – The
accused, who is convicted, has a right to take all the grounds and
also lead additional evidence, which in accordance with the
Appellant Court is necessary in deciding appeal – Besides that,
one ‘F’ had filed criminal case against the appellant which was
also based on same MOU regarding the sale of agricultural land –
In the said case, the Trust Deed dated 18.10.1989 was filed and
proved, and appellant was acquitted – Thus, High Court committed
error in not exercising jurisdiction u/s.391 of the Cr.P.C.
Code of Criminal Procedure, 1973 – s.391 – Power of the
Appellate Court – Held: There are no fetters on the power u/s. 391
Cr.P.C. of the Appellate Court – All powers are conferred on the
Court to secure ends of justice – The ultimate object of judicial
administration is to secure ends of justice – Court exists for
rendering justice to the people.
Allowing the appeal, the Court
HELD: 1. The facts indicate that the trust is admittedly the
owner of agricultural land in Village Bichaie.  The complainant
has been in possession of large number of agricultural lands as
thekedar of the trust since 1975, according to his own case, which
he even mentioned in the First Information Report.  The
application under Section 391 Cr.P.C. was made in the Appellate
Court to accept certified copy of the Trust Deed dated 18.10.1989
and the Resolution No. 112 dated 18.10.1989 and permitting the
appellant to prove
the said document by leading oral evidence.
The reference of Trust Deed has been made by the trial court in
its judgment dated 07.10.2013.  The trial court in its judgment
had observed “the copy of the Trust Deed dated 18.10.1989 is
available on record being paper No.30Kha/46”.  The trial court
further has observed that “it is pertinent to mention here that
the accused had not proved the Trust Deed dated 18.10.1989 by
way of evidence”. [Para 17] [473-C-E]
2.  What was available on the record was the photocopy of
the Trust Deed.  Due to non-proving of the Trust Deed, the trial
court has not adverted to the Trust Deed and the Resolution,
which were relevant to understand and know the conduct of the
appellant and other trustees for entering in the MOUs for sale of
BRIG. SUKHJEET SINGH (RETD.) MVC v. STATE OF UTTAR
PRADESH & ORS.
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agricultural land.  The facts as noted above indicate that
prosecution started recording its evidence on 17.11.2000, which
was completed on 21.11.2012.  A period of twelve years was taken
by the prosecution to lead its evidence and after 21.11.2012, the
judgment was delivered on 07.10.2013.  The appellant was
convicted for offences under Section 420/34 IPC accepting the
charge that complainant was cheated with regard to sale of
agricultural land of the Trust. [Para 18] [473-F-G]
3.   A Criminal Appeal was filed by appellant in the Court of
the Session Judge, Rampur. Thereafter, application under
section 391 Cr.P.C. (14 Kha) was filed for placing on record the
said Trust Deed dated 18.10.1989 and Resolution No.112.
Another application under section 391 Cr.P.C. (17 Kha) was filed
praying for summoning the witnesses to prove the Trust Deed
dated 18.10.1989 and Resolution No.112. Both the applications
came for consideration before the District Judge, who by its
order dated 02.11.2015 rejected both the applications. Against
the order dated 02.11.2015, an application under section 482
Cr.P.C. was filed in the High Court by the applicant, which has
been  rejected by the High Court vide its impugned judgment
dated 17.01.2017.  The reasons given by the High Court and
relied by the High Court in rejecting the application filed under
Section 482 are unfounded.  The first observation of the High
Court is that filing of additional
evidence at such a belated stage.
In the facts of the present case this Court does not approve the
above observation. When the Appellate Court has been given
power to lead additional evidence, the observation that it is
belated stage was uncalled for.  Appellant was convicted on
07.10.2013 and appeal was immediately filed on the next date,
i.e. 08.10.2013.    It was not even mentioned by the High Court
that there is anything on record to indicate that appeal was being
heard and at this stage the application under Section 391 Cr.P.C.
was filed, calling the application as filed at belated stage itself
was unjustified.  Further, the observation of the High Court that
application was filed with some ulterior malafide motive is not
acceptable.  The appellant had already been convicted by the
trial court, the charge was cheating the complainant with regard
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to sale of agricultural land of the trust.  The second Trust Deed
dated 18.10.1989, which was on record and referred to by the
trial court and was refused to look into on the ground that it was
not proved by the appellant.  Filing of the application before the
High Court to accept the certified copy of the Trust Deed and
the Resolution and to permit the appellant to lead evidence can
in no manner be said to be malafide motive of the accused, who
had been convicted. In the appeal, he has right to take all the
grounds and also lead additional evidence, which in accordance
with the Appellate Court is necessary in deciding the appeal.  As
noted above, this Court has laid down that when it becomes
necessary to take additional evidence, cannot be enlisted or
enumerated in any fixed formula.  It depends on facts of each and
every case to come to a conclusion as to whether it is necessary
to take additional evidence or not.  Present is a case where it
was due to lapse on the part of the appellant and his counsel that
the second Trust Deed, which was basis for taking steps for sale
of the land could not be proved.  [Paras 3.11, 3.12, 3.13 and 19]
[466-F; 467-A-B, C-D; 474-B-G]
4.  The second observation of the High Court is that the
application to take additional evidence at the appellate stage is
filed by appellant for delaying the decision of the appeal to
eternity, When prosecution took twelve years’ time in leading
evidence before the trial court and the
judgment by trial court
was delivered on 07.10.2013, the appeal was filed on 08.10.2013,
how can appellant be castigated with the allegation that he
intended to delay the appeal to eternity.  The observation was
unduly misplaced and incorrect.  When Statute grants right to
appeal to an accused, he has right to take all steps and take
benefit of all powers of the Appellate Court in the ends of the
justice. In a criminal case Appellate Court has to consider as to
whether conviction of the accused is sustainable or the appellant
has made out a case for acquittal.  The endeavour of all Courts
has to reach to truth and justice.  The case of the complainant
also has been that it is only after execution of the Trust Deed
that talks regarding sale of the agricultural land was initiated.
Trust Deed and the Resolution, which are foundation and basis
for the start of the process of the sale of the land were
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documents, which ought to have been permitted to be proved to
arrive at any conclusion to find out the criminal intent, if any, on
the part of the appellant. [Para 20] [474-G-H; 475-A-D]
5.  It is further relevant to notice that in other case filed by
‘F’, who was also one of the purchasers and lodged the FIR on
same allegations.  In the said case, the second Trust Deed dated
18.10.1989 was filed and proved and ultimately, the appellant has
been acquitted in the said case by judgment dated 30.11.2015,
which has also been brought on record.  In the other criminal
case, which was on the same allegations and which were also
based on same MOU regarding sale of agricultural land, where
amount of Rs.75,600/- was also paid by ‘F’, on the same date, the
Trust Deed was filed and proved relying on which acquittal of the
appellant has been recorded.  It has been further submitted by
the appellant that reference of the judgment of the acquittal dated
30.11.2015 has also been made before the High Court, but High
Court did not advert to the said judgment. [Para 21] [475-E-F]
6. In the facts of the present case, Appellate Court
committed error in not exercising jurisdiction under Section 391
Cr.P.C. in accepting the second Trust Deed dated 18.10.1989
and the Resolution No.112 dated 18.10.1989 and refusing the
appellant to lead evidence to prove the documents. [Para 22]
[475-G-H]
Rajeswar Prasad Misra v. State of West Bengal and
Another AIR 1965 SC 1887 : [1966] 1 SCR 178 ;
Rambhau and Another v. State of Maharashtra
(2001) 4 SCC 759 : [2001] 3 SCR  210  – relied on.
Parminder Kaur v. State of Uttar Pradesh and Another
(2010) 1 SCC 322 : [2009] 15 SCR 430 – referred to.
Case Law Reference
[2009] 15 SCR 430
   referred to
Para 6
[1966] 1 SCR 178
   relied on
Para 12
[2001] 3 SCR  210
   relied on
Para 15
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CRIMINAL APPELLATE JURISDICTION :  Criminal Appeal
No. 148 of 2019.
From the Judgment and Order dated  17.01.2017 of the High
Court of  Judicature at Allahabad in Crl. Misc. Appl. No. 34100 of 2015.
R. S. Suri, Sr. Adv., Gurbaksh Singh, L. S. Hassan, Jarnail Singh,
Abhijat P. Medh, Advs. for the Appellant.
Ratnak Das, Ajay Vikram Singh, Ms. Priyanka Singh, R. K. Singh,
Maklesh Anand, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. This appeal has been filed questioning the judgment of Allahabad
High Court dated 17.01.2017 dismissing the application filed by the
appellant under Section 482 Cr.P.C. wherein the orders passed by the
Session Judge dated 02.11.2015 rejecting the two applications filed by
the appellant under Section 391 Cr.P.C. were challenged.
3. Brief facts of the case, which are necessary to be noted for
deciding this appeal are:-
3.1  A Regimental Welfare Trust relating to the Scinde Horse
Regiment of Indian Army was registered on 27.06.1959.  The
Trust owned various immovable properties including agricultural
land in Village Bichaie, Phoolpur and Beehat in Tehsil-Bilaspur,
District-Rampur.  The respondent No.2 was in possession of 50
acres of agricultural land of the trust since 1975 in Village-Bichaie
as thekedar.  Other agricultural land of the trust in three villages
of Tehsil-Bilaspur were given to different persons as thekedar.
3.2 The office of Chairman of the Trust is held
by the Commandant
of Scinde Horse Regiment. On 18.10.1989, a deed of
declaration of trust was executed by the Commandant of the
Scinde Horse Regiment claiming it to be a new Trust Deed
without changing the nature of the trust. In the deed dated
18.10.1989 (registered at Delhi), details of trust land in District-
Rampur were also mentioned, which included 474 Bigha land in
Village-Bichaie.  One of the clauses mentioned in the Trust Deed
was that there may be conversion of the trust corpus by
unanimous approval of all the trustees.  On 18.10.1989, a
BRIG. SUKHJEET SINGH (RETD.) MVC v. STATE OF U.P.
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Resolution No.112 was passed by the trustees where it was
unanimously decided to authorise Col. Ravi Inder Singh, Brig.
Sukhjeet Singh, MVC, Maj. Gen. B.S. Malik and Ris Maj.
Roshanlal to act in the name of the Trust and on behalf of the
trustees to sell the trust farm land alongwith buildings thereon
situated in villages Bichaie, Phoolpur and Beehat.  Resolution
also contained other conditions for executing conveyance and
for registration of land.
3.3 In pursuance of the Trust Deed and the Resolution dated
18.10.1989, a Memorandum of Understanding (MOU) was
entered with Scinde Horse Trust and respondent No.2-Shri
Hargursharan Singh (complainant) and other purchasers for
purchase of the land.  The MOU also contained a condition that
payment was required to be made by pay order or by bank draft
only in the favour of Scinde Horse Trust.  On 28.04.1991,
another MOU was executed between Shri Hargursharan Singh
(complainant) and other purchasers by which complainant was
to acquire 40 acres of land at the rate of Rs.44,000/45,000/- per
acre of land.  On 03.07.1991, the complainant paid an amount
of Rs.100,400/- to Col. Ravi Inder Singh as an earnest money.
3.4 The land being not sold to the complainant, he lodged a First
Information Report on 21.12.1991.  The case of complainant in
the First Information Report was that although complainant
agreed to purchase the land of trust at the rate of Rs.44,000/
45,000/- and he paid a
sum of Rs.100,400/- on 03.07.1991 to
Col. Ravi Inder Singh as an earnest money, who assured him
that sale shall be executed till 08.07.1991, however, till date,
sale has not been executed and accused persons are not ready
and willing to execute the sale deed.  Complainant further came
to know that no permission for the sale of the trust land has
been given to the accused persons by the Court.  On those
allegations, FIR was lodged under Section 420/406 IPC.
3.5 Almost similar allegations were made by one Shri Fateh Singh
against the same accused wherein Shri Fateh Singh claimed
that he has paid an amount of Rs.75,600/- as an earnest money
to Col. Ravi Inder Singh on 03.07.1991 and sale having not been
executed, the FIR be registered.
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3.6 On FIR filed by the complainant, case Crime No. 315/1991 was
registered under Section 420/406 IPC and on FIR submitted by
Shri Fateh Singh, case Crime No. 315-A of 1991 was
registered under Section 420/406 IPC.  On investigation, in both
the crime numbers, charge sheet was submitted under Section
419, 420, 467, 471 and 120-B IPC.
3.7 The appellant, who was one of the accused alongwith other
accused filed a Criminal Misc. Application No. 6027 of 1993
and 6028 of 1993 praying for quashing the FIRs in case Crime
No. 315 of 1991 and 315-A of 1991 and the orders summoning
the accused persons by Chief Judicial Magistrate, Rampur.
3.8 The High Court while noticing the facts of the case noted from
both the complaints that receipt of the amount of Rs.1,75,000/-
from Shri Hargursharan Singh and Shri Fateh Singh is admitted.
High Court further noticed that stamp papers worth
Rs.1,75,000/- have been purchased.  High Court also noticed
that it is admitted fact that permission to sell trust land was
applied in the Court of District Judge, but the same was refused
on the ground that proper order in that respect can be passed in
proceedings under Section 92 of Code of Civil Procedure which
was not done. The High Court also noticed that petitioners
obtained information from two eminent jurists, including Mr. Soli
Sorabji, who opined that the trustees have power to sell the
trust land in the instant case.  The High Court after noticing the
facts had made following
observations while deciding the
applications:-
“……………..after going through the averments with
annexure it appears that there was no dishonest
misappropriation of the property by the petitioners as entire
sum has been spent for the purposes of purchasing stamp
papers.  An  agreement has been advanced, that stamp
paper could not be encashed after a lapse of six months can
in no way be attributed dishonest intention to cause harm or
injury to respondent no.2 and that is also not the basic
allegation against the petitioners.  Since there is no
misappropriation of Rs.1,76,000/- by any of the petitioners,
the charge u.S.406 IPC cannot stand, there is also no
allegation 
with 
regard 
to 
forgery 
of 
any
document……………...”
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[ASHOK BHUSHAN, J.]
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3.9 High Court came to the conclusion that charge of Conspiracy
under Section 120-B against petitioners (applicants) fails.  High
Court was of the view that further scrutiny of the factual
material would be required to be done at a stage of taking
evidence, at that time, contentions of both the parties regarding
elements of cheating can be examined with reference to the
evidence.  High Court refrained to express any opinion with
regard to above.  High Court, as a result of the above
consideration, allowed the applications in part, set aside the
order passed by the Chief Judicial Magistrate.  High Court
further directed that Chief Judicial Magistrate shall take
cognizance under Section 420/34 IPC afresh against petitioner
Nos. 1 and 2 and issue process accordingly.  Prayer for
quashing of the First Information Report and the Charge Sheet
was refused.  Petitioner Nos. 3 and 4 were also discharged.
3.10 After the above order of the High Court dated 09.11.1995,
charges were framed on 18.11.1996 under Section 420/34 IPC.
On 17.11.2000, prosecution evidence started.  Prosecution
completed its evidence on 21.11.2012.  Thereafter, evidence of
defence was also recorded and trial court delivered its
judgment on 07.10.2013 convicting the appellant under Section
420 read with Section 34 IPC and awarded sentence of five
years simple imprisonment and fine of Rs.25,000/-.  The other
co-accused Col. Ravi Inder Singh having died
during the trial,
the appellant was taken into custody and sent to the prison.
3.11 On 08.10.2013, a Criminal Appeal No.57 of 2013 was filed by
appellant in the Court of the Sessions Judge, Rampur.  On
26.06.2014, application under Section 391 Cr.P.C.(14 Kha) was
filed for placing on record the said Trust Deed dated 18.10.1989
and Resolution No. 112.  In the application, it was stated that
Trust Deed was registered with the Registrar of Delhi and the
photocopy of the Trust Deed is available on record of the Lower
Court being paper No. 30Kha/46, which has also been
mentioned in the impugned judgment.  Certified copy was filed
alongwith the application with a prayer that the document be
kindly taken on record and certified copy of the Resolution
passed by the trustees was filed, which was prayed to be taken
on record.
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3.12 Another application under Section 391 Cr.P.C. (17 Kha) was
filed on 15.07.2014 praying for summoning the witnesses to prove
the Trust Deed dated 18.10.1989 and Resolution No.112. Both
the applications came for consideration before the District Judge,
who by its order dated 02.11.2015 rejected both the
applications.  The Appellate Court opined that lower court’s
record shows that case is very old and it remained pending in
the trial for several years.  Sufficient opportunity was given to
the accused-appellant to produce evidence in defence.  No
sufficient ground has been shown why these documents were
not got proved in the trial court.  Hence, the applications
deserve to be rejected.
3.13 Against the order dated 02.11.2015, an application under
Section 482 Cr.P.C. was filed in the High Court by the
applicant, which has been rejected by the High Court vide its
impugned judgment dated 17.01.2017.  High Court was of the
view that the applications filed by the applicant for filing
additional evidence at such a belated stage appears to be with
some  ulterior malafide motive or for delaying the decision of
the appeal to eternity. High Court rejected the application filed
under Section 482 Cr.P.C.  Feeling aggrieved, the appellant has
come up in this appeal.
4. We have heard Shri R.S. Suri, learned senior counsel for the
appellant. Shri Ratnakar Das, learned counsel had appeared on behalf
of the State of U.P.  Shri Hargursharan Singh, respondent
No.3-complainant had appeared in person and has been heard at length.
5. Shri R.S. Suri, learned senior counsel for the appellant submits
that Appellate Court committed error in rejecting the applications filed
by the appellant under Section 391 Cr.P.C.  Learned senior counsel
submits that the appellant before this Court is a retired Brigadier of
Indian Army, who had distinguished and meritorious services in the Armed
Forces.  He was also awarded Maha Vir Chakra in the 1971 war.  The
appellant was trustee of the trust and was authorised by the trust alongwith
other members to sell the trust land.  Appellant did not receive a single
rupee from the complainants.  The complainant (Shri Hargursharan Singh)
has claimed to have paid Rs.100,400/-to Col. Ravi Inder Singh and
another complainant (Fateh Singh) had paid Rs.75,600/- to Col. Ravi
BRIG. SUKHJEET SINGH (RETD.) MVC v. STATE OF U.P.
[ASHOK BHUSHAN, J.]
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Inder Singh.  Stamp Duty amounting to Rs.1,75,000/- was purchased
which document was on the record.  No amount was misappropriated
or used by the appellant or trust.  The allegation of cheating or fraud
made against the appellant is wholly false and incorrect.  The second
Trust Deed dated 18.10.1989 was also on the record (photocopy filed by
the complainant himself), which has been noticed by the trial court in its
judgment as paper No. 30Kha/46.  Due to lapse on part of the appellant
and his counsel, above Trust Deed and the Resolution authorising the
trustees could not be proved before the trial court, whereas the above
Trust Deed and Resolution were noticed and proved in the case Crime
No. 315-A of 1991 filed by Shri Fateh Singh.
6. Learned senior counsel further submits that in case Crime
No. 315-A of 1991, which was based on the same allegations against
the appellant, the trial court vide its judgment and order dated 30.11.2015
had acquitted the appellant from the charge under Section 420/34 IPC.
The trial court in the above case has noticed the second Trust Deed as
well as Resolution No.112, which were duly proved.  It is submitted that
it is lapse that the second Trust Deed and Resolution, which were basis
for entering into MOU with complainant for sale of trust land could not
be proved, whereas they were referred to and were part of the record
and proved in other case.  Shri Suri submits that Appellate Court
committed error in not exercising jurisdiction under Section 391 Cr.P.C.
in accepting the documents on record and not permitting the appellant to
lead evidence to prove the said documents, which has resulted in failure
of justice.  Shri Suri further submits that the FIR lodged by the
complainant was another example of malicious prosecution of the
appellant.  He submits that this Court in Parminder Kaur Vs. State of
Uttar Pradesh and Another, (2010) 1 SCC 322: AIR 2010 SC 840,
while quashing the proceeding arisen out of complaint lodged by
Hargursharan Singh has observed that Hargursharan Singh lodged
malicious and vengeance full prosecution case against his sister-in-law,
which was quashed by this Court.
7. Shri Suri further submits that the Appellate Court for finding
out and to ensure that no innocent person is convicted, ought to have
given opportunity to the appellant to lead evidence to prove the second
Trust Deed and the Resolution, denial of which has caused immense
injustice.
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8. Shri Ratnakar Das, learned counsel appearing for the State of
U.P. submits that power under Section 391 Cr.P.C. has to be exercised
sparingly and in the ends of justice.  He submits that permitting the
appellant to lead evidence to prove the second Trust Deed and
Resolution will involve a fresh trial.  He further submits that even if a
certified copy of the Trust Deed dated 18.10.1989 is taken on record,
that shall not serve any purpose.  He candidly submits that he has no
objection if documents are accepted on record but given opportunity to
lead evidence shall consume a lot of time, which shall delay the disposal
of the appeal.  He submits that even in the prayer made in the
application (17-Kha), no witness has been listed, who can prove the
documents.  The mere fact that registration of documents is proved,
shall not mean that contents are also proved.
9. Shri Hargursharan Singh, appearing in-person has supported
the order passed by the Session Judge rejecting the application filed
under Section 391 Cr.P.C. by the appellant.  He submits that this SLP
has been filed only with intent to delay the disposal of the criminal
appeal.  He submits that the appellant had not obtained permission from
the District Judge for sale of the land and the District Judge had rejected
the application on 27.10.1989 and despite the rejection of the
application, the appellant and other members of the trust proceeded with
their design to sell the land, which led the
complainant to pay amount of
Rs.100,400/- to Col. Ravi Inder Singh.  The appellant was convicted on
07.10.2013 and the application under Section 391 Cr.P.C. was filed after
nine months.  Opportunity to lead evidence in the defence was availed
by the appellant. The Session Judge has rejected the application filed
under Section 391 Cr.P.C. by giving cogent reasons.  High Court has
also rightly upheld the said order, which needs no interference by this
Court.  The application has been filed by the appellant just to cover his
offence. The appellant has been approbating and reprobating at the same
time.  The document dated 18.10.1989 is already on the file and hence
there is no necessity to bring it again.  Original Trust Deed was
registered on 27.06.1959 at Rampur, which is still valid.  In spite of
permission having been refused, the appellants have been contending
that they have still right to sell the property.  Shri Hargursharan Singh
further submitted that appellant had committed forgery and fraud.  He
has referred to Page 28 of the paperbook, Para No.8 and submitted that
BRIG. SUKHJEET SINGH (RETD.) MVC v. STATE OF U.P.
[ASHOK BHUSHAN, J.]
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in para No.8 the word “not” has been deleted from Clause 8, which
shows that the appellants have not come with the clean hands before
this Court and they have concealed the true clause of Trust Deed from
this Court also.  He further submits that this Court should monitor the
hearing of the Criminal Appeal pending before Sessions Judge.
10. We have considered the submissions of the parties and have
perused the records.
11. In the present appeal, we are concerned only with the
rejection of application filed by the appellant under Section 391 Cr.P.C.
before the Session Judge in the criminal appeal filed by him against the
conviction order, whether the Session Judge committed error in not
exercising power under Section 391 Cr.P.C. to permit the appellant to
lead additional evidence is a question to be answered.  Whether the
High Court committed error in not exercising power under Section 482
Cr.P.C. as to secure the ends of justice?
12. Chapter XXIX of the Code of Criminal Procedure, 1973 deals
with “Appeals”.  Section 391 Cr.P.C. empowers the Appellate Court to
take further evidence or direct it to be taken.  Section 391 is as follows:-
“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.”
13. The key words in Section 391(1) are “if it thinks additional
evidence to be necessary”.  The word “necessary” used in Section 391(1)
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is to mean necessary for deciding the appeal.  The appeal has been filed
by the accused, who have been convicted.  The powers of Appellate
Court are contained in Section 386.  In an appeal from a conviction, an
Appellate Court can exercise power under Section 386(b), which is to
the following effect:-
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re- tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed
for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so
as to enhance the Same;
14. Power to take additional evidence under Section 391 is, thus,
with an object to appropriately decide the appeal by the Appellate Court
to secure ends of justice.  The scope and ambit of Section 391 Cr.P.C.
has come up for consideration before this Court in Rajeswar Prasad
Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887.
Justice Hidayatullah, speaking for the Bench held that a wide discretion
is conferred on the Appellate Courts and the additional evidence may be
necessary for a variety of reasons.  He held that additional evidence
must be necessary not because it would be impossible to pronounce
judgment but because there would be failure of justice without it.
Following was laid down in Paragraph Nos. 8
and 9:-
“8. ……………………………….Since a wide discretion is
conferred on appellate courts, the limits of that courts’ jurisdiction
must obviously be dictated by the exigency of the situation and
fair play and good sense appear to be the only safe guides. There
is, no doubt, some analogy between the power to order a retrial
and the power to take additional evidence. The former is an
extreme step appropriately taken if additional evidence will not
suffice. Both actions subsume failure of justice as a condition
precedent. There the resemblance ends and it is hardly proper to
construe one section with the aid of observations made by this
Court in the interpretation of the other section.
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9. Additional evidence may be necessary for a variety of reasons
which it is hardly proper to construe one section with the aid of
observations made to do what the legislature has refrained from
doing, namely, to control discretion of the appellate court to certain
stated circumstances. It may, however, be said that additional
evidence must be necessary not because it would be impossible
to pronounce judgment but because there would be failure of justice
without it. The power must be exercised sparingly and only in
suitable cases. Once such action is justified, there is no restriction
on the kind of evidence which may be received. It may be formal
or substantial. It must, of course, not be received in such a way as
to cause prejudice to the accused as for example it should not be
received as a disguise for a retrial or to change the nature of the
case against him. The order must not ordinarily be made if the
prosecution has had a fair opportunity and has not availed of it
unless 
the 
requirements 
of 
justice 
dictate
otherwise………………………….”
15. This Court again in Rambhau and Another Vs. State of
Maharashtra, (2001) 4 SCC 759 had noted the power under Section
391 Cr.P.C. of the Appellate Court.  Following was stated in Paragraph
Nos. 1 and 2:-
“1. 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……………………
2. 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 W.B. 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.”
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16. From the law laid down by this Court as noted above, it is
clear that there are no fetters on the power under Section 391 Cr.P.C. of
the Appellate Court. All powers are conferred on the Court to secure
ends of justice. The ultimate object of judicial administration is to secure
ends of justice.  Court exists for rendering justice to the people.
17. Now, we revert to the facts of the present case to examine as
to whether present was the case for exercise of the power by the
Appellate Court under Section 391 Cr.P.C. to permit adducing the
additional evidence at the appellate stage.  The facts as noted above
indicate that the trust is admittedly the owner of agricultural land in
Village Bichaie.  The complainant has been in possession of large
number of agricultural lands as thekedar of the trust since 1975,
according to his own case, which he even mentioned in the First
Information Report.  The application under Section 391 Cr.P.C. was
made in the Appellate Court to accept certified copy of the Trust Deed
dated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 and
permitting the appellant to prove the said document by leading oral
evidence.  The reference of Trust Deed has been made by the trial
court in its judgment dated 07.10.2013.  The trial court in its judgment
had observed “the copy of the Trust Deed dated 18.10.1989 is available
on record being paper No.30Kha/46”.  The trial court further has
observed that “it is pertinent to mention here
that the accused had not
proved the Trust Deed dated 18.10.1989 by way of evidence”.
18. What was available on the record was the photocopy of the
Trust Deed.  Due to non-proving of the Trust Deed, the trial court has
not adverted to the Trust Deed and the Resolution, which were relevant
to understand and know the conduct of the appellant and other trustees
for entering in the MOUs for sale of agricultural land.  The facts as
noted above indicate that prosecution started recording its evidence on
17.11.2000, which was completed on 21.11.2012.  A period of twelve
years was taken by the prosecution to lead its evidence and after
21.11.2012, the judgment was delivered on 07.10.2013.  The appellant
was convicted for offences under Section 420/34 IPC accepting the
charge that complainant was cheated with regard to sale of agricultural
land of the Trust.  The High Court while rejecting the application filed
under Section 482 Cr.P.C. of the appellant has made following
observations:-
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“……….The present exercise initiated by the applicant for filing
additional evidence at such a belated stage appears to be with
some ulterior malafide motive or delaying the decision of the
appeal to eternity……..”
19. Both the above reasons given by the High Court and relied by
the High Court in rejecting the application filed under Section 482 are
unfounded.  The first observation of the High Court is that filing of
additional evidence at such a belated stage. In the facts of the present
case we do not approve the above observation. When the Appellate
Court has been given power to lead additional evidence, the observation
that it is belated stage was uncalled for.  Appellant was convicted on
07.10.2013 and appeal was immediately filed on the next date, i.e.
08.10.2013. It was not even mentioned by the High Court that there is
anything on record to indicate that appeal was being heard and at this
stage the application under Section 391 Cr.P.C. was filed, calling the
application as filed at belated stage itself was unjustified.  Further, the
observation of the High Court that application was filed with some
ulterior malafide motive also does not commend us.  The appellant had
already been convicted by the trial court, the charge was cheating the
complainant with regard to sale of agricultural land of the trust.  The
second Trust Deed dated 18.10.1989, which was on record and referred
to by the trial court and was
refused to look into on the ground that it
was not proved by the appellant.  Filing of the application before the
High Court to accept the certified copy of the Trust Deed and the
Resolution and to permit the appellant to lead evidence can in no manner
be said to be malafide motive of the accused, who had been convicted.
In the appeal, he has right to take all the grounds and also lead additional
evidence, which in accordance with the Appellate Court is necessary in
deciding the appeal.  As noted above, this Court has laid down that when
it becomes necessary to take additional evidence, cannot be enlisted or
enumerated in any fixed formula.  It depends on facts of each and every
case to come to a conclusion as to whether it is necessary to take
additional evidence or not.  Present is a case where it was due to lapse
on the part of the appellant and his counsel that the second Trust Deed,
which was basis for taking steps for sale of the land could not be proved.
20. The second observation of the High Court is that the
application to take additional evidence at the appellate stage is filed by
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appellant for delaying the decision of the appeal to eternity, we fail to
see that when prosecution took twelve years’ time in leading evidence
before the trial court and the judgment by trial court was delivered on
07.10.2013, the appeal was filed on 08.10.2013, how can appellant be
castigatedwith the allegation that he intended to delay the appeal to
eternity.  The observation was unduly misplaced and incorrect.  When
Statute grants right to appeal to an accused, he has right to take all steps
and take benefit of all powers of the Appellate Court in the ends of the
justice. In a criminal case Appellate Court has to consider as to whether
conviction of the accused is sustainable or the appellant has made out a
case for acquittal.  The endeavour of all Courts has to reach to truth and
justice.  The case of the complainant also has been that it is only after
execution of the Trust Deed that talks regarding sale of the agricultural
land was initiated.  Trust Deed and the Resolution, which are foundation
and basis for the start of the process of the sale of the land were
documents, which ought to have been permitted to be proved to arrive
at any conclusion to find out the criminal intent, if any, on the part of the
appellant.
21. It is further relevant to notice that in case Crime No. 315-A of
1991 filed by Shri Fateh Singh, who was also one of the purchasers and
lodged the FIR on same allegations.  In the said case, the second Trust
Deed dated 18.10.1989
was filed and proved and ultimately, the
appellant has been acquitted in the said case by judgment dated 30.11.2015,
which has been brought on record as Annexure P-14.  In the other
criminal case, which was on the same allegations and which were also
based on same MOU regarding sale of agricultural land, where amount
of Rs.75,600/- was also paid by Shri Fateh Singh, on the same date, the
Trust Deed was filed and proved relying on which acquittal of the
appellant has been recorded.  It has been further submitted by the
appellant that reference of the judgment of the acquittal dated 30.11.2015
has also been made before the High Court, but High Court did not
advert to the said judgment.
22. In the facts of the present case, we are of the view that
Appellate Court committed error in not exercising jurisdiction under
Section 391 Cr.P.C. in accepting the second Trust Deed dated 18.10.1989
and the Resolution No.112 dated 18.10.1989 and refusing the appellant
to lead evidence to prove the documents.
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23. Shri Hargursharan Singh has also contended before us that
the appellants are not entitled for any relief since they have not filed
correct copy of the Trust Deed before this Court and are trying to
mislead this Court.  He has referred to Clause (8) of the Trust Deed at
Page 28 of the paperbook, where, according to him, the word “not” has
not been deliberately typed in Clause (8).  Shri Suri appearing for the
appellant has very fairly submitted that omission of word “not” in Para
No.(8) is only an inadvertent mistake of typing, which could not be
checked by the appellant.  When the certified copy of the Trust Deed
has already been filed before the Appellate Court by the appellant, we
fail to see what will be gained by the appellant by reproducing an
incorrect clause of the Trust Deed.  We are satisfied that non-mention
of the word “not” is only a mistake, which is neither deliberate nor with
any intent to mislead this Court.  The complainant cannot be allowed to
make any capital of such mistake.
24. We, thus, come to the conclusion that in the present case, the
Appellate Court has failed to exercise its jurisdiction under Section 391
Cr.P.C. and has committed error in rejecting the applications under
Section 391 Cr.P.C. (14 Kha and 17 Kha).  The order of the Appellate
Court dated 02.11.2015 as well as order of the High Court dated
15.03.2016 are set aside.  The applications 14 Kha and 17 Kha stand
allowed.  We
further direct that appellant be permitted to lead oral
evidence to prove the contents of the Deed dated 18.10.1989 by leading
at-least one witness.  The Appellate Court shall receive the additional
evidence as directed above and complete the exercise within six months
from the date of production of certified copy of this order before it. The
Criminal Appeal, thereafter shall be decided expeditiously.  The appeal
is allowed accordingly.
Ankit Gyan
 Appeal allowed.