& Anr Vs. State of Maharashtra  Insc 246 (26 April 2001)
C. Banerjee & K.G. Balakrishnan Banerjee, J.
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 as below:
Appellate Court may take further evidence or direct it to be taken
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.
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.
The accused or his pleader shall have the right to be present when the
additional evidence is taken.
The taking of evidence under this section shall be subject to the provisions of
Chapter XXIII, as if it were an inquiry.
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 re-trial 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
dependant upon the fact-situation of the matter and having due regard to the
concept of fair play and justice, well being of the society.
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 the lacuna but to sub-serve 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.
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.3000/- and hence the Appeal before this Court.
going into the factual score further, it is convenient to note at this juncture
that during the course of hearing of this appeal, the High Court thought it fit
to conduct an additional examination of both the accused persons with a
reasoning as below: We have examined them to rectify the irregularity as
cropped up and pointed out by the defence. The word irregularity in common
English parlance means and implies contrary to rule. This Court in the case of
The Martin Burn Ltd. v. The Corporation of Calcutta (AIR 1966 SC 529) while
explaining the meaning of irregularity observed: A point was, however, made
that Section 131 (2)(b) apply only to a cancellation on the ground of
irregularity, that is a procedural defect such as, absence of notice, omission
to give a hearing etc., There is, however, no reason to restrict the ordinary
meaning of the word irregularity and confine it to procedural defects only.
None has been advanced. Such a contention was rejected and we think rightly in
57 Calcutta W.N.882: (AIR 1953 Calcutta 773). That word clearly covers any case
where a thing has not been done in the manner laid down by the statute,
irrespective of what that manner might be.
Law Dictionary defines the word as not according to rule and not regular i.e.
which stands contrary to rule.
noticed above, the purpose of introduction of Section 391 (earlier Section 428)
in the statute book has been for the purpose of making it available to the
Court nor to fill up any gap in the prosecution case but to oversee that the
concept of justice does not suffer. The High Court itself records to rectify
the irregularity, the issue therefore, is whether this rectification by an
additional evidence is a mere irregularity or goes to the root of the issue and
instead of sub- serving the ends of justice, the same runs counter to the
concept of justice.
at this stage however, the entire factual set up ought to be adverted to. On
19-01-1989 one Mr. Hiwanje lodged a complaint of abuses and quarrel between Sangamlal
and his wife. The Appellant No.1 being the Sub-Inspector called them to the
Police Station on 23-1-1989 and on their reporting at about 9.30 a.m., Appellant
No.1 demanded Rs.1500 from Sangamlal for terminating the proceedings.
the intervention of the Appellant No.2 however, the demand was settled at
Rs.1300/-. The complainant (PW 1) Sangamlal, however, at around 1245 hours
lodged a report with the Anti Corruption Bureau and accordingly a Panchnama was
drawn. One Purushottam Manapure was introduced as Panch and 13 tainted currency
notes of 100 denomination were entrusted to the complainant P.W.1. The raiding
party in the afternoon arranged a trap, it was however unsuccessful.
factual context depicts that on 24.1.1989 at about 8.30 a.m., PW 1 Sangamlal
and Panch PW 3 Manapure went to the accused No.1 in the Police Station and the
later directed Sangamlal to go with the accused No.2 for the purpose of
exchange of notes. Certain other factual details though available on record but
can be avoided as irrelevant for the present purpose, suffice it to note that
eventually the tainted currency notes in possession with the complainant
reached P.W.6 Raman Wadekar and the raiding party headed by PW 9 Sub-Inspector Saraf
reached the spot and seized the tainted currency notes from PW 6 Wadekar in the
petrol pump. The seizure thus took place at a spot which was 2 kilometers away
from the Police Station. The second Panchnama was accordingly drawn up and
after necessary investigation, chargesheet was filed upon obtaining sanction
from the Commissioner of Police for the launch of prosecution. The defence of
the accused No.1 was of total denial and according to him, it is by reason of
annoyance and vendetta that has brought the complaint into light and has no
factual support therefor.
be it noted that P.W.7 Tijare, a neighbour of Sangam Lal (P.W.1) was throughout
in the company of Sangamlal. Coming back to the defence once again, the
Appellant No.2 also denied such an involvement and according to him, since the
vehicle of one relation of P.W.7 Tijare was questioned on the road, P.W.7 has
given false version against him.
depict that learned Special Judge, however, recorded a finding of acquittal on
the ground that the sanction as accorded is bad in law since the Commissioner
of Police, though was the appointing authority but no evidence has been laid
that he was also the disciplinary authority and as such the Commissioner is not
otherwise competent to accord sanction to prosecute. The High court negatived
it and we do not see any reason for a different conclusion in the matter.
Significantly, even the defence counsel, as has been recorded in the judgment,
could not support such a reasoning. As regards the merit, the learned Special
Judge held that the demand and acceptance by the Appellant No.1 have not been
proved. The learned Special Judge in his judgment did mention the instance of
demand on 22nd January and reached a conclusion that the same has not been
proved but there has been a total omission as regards the demand on 23rd
January. This aspect of the matter has been elaborately dealt with by the High
Court and the High Court upon consideration of all relevant evidence came to a
conclusion that taking into account the version of Sangamlal, the complainant
and that of Tijare (P.W.7), there cannot be any manner of doubt that the
prosecution has fully established the demand by Appellant No.1 on 23rd January,
1989. As regards the demand and acceptance on 24th January, 1989, the High Court also negatived the finding of the learned
Special Judge who reached a conclusion that the demand on 24th January, 1989 is completely untrustworthy.
on this score, it was argued before the High Court that the factum of payment
on 24th January as per the version of P.W.1 Sangamlal was not put to the
accused persons in their examination under Section 313 of the Code of Criminal
Procedure and as such circumstances cannot be used against the accused. It is
on this count, the High Court conducted additional examination of both the
accused persons in the High Court so as to rectify the irregularity as cropped
up and pointed out by the defence.
the High Court strenuous submissions made pertaining to the effect of
acceptance of uncorroborated testimony, and the High Court dealt with the issue
in the manner following:
There cannot be any debate on a broad proposition.
prudence ordinarily look for a corroboration from an independent witness, to
the version of the complainant.
the Panch does not render corroboration to the version of the complainant on
the aspect of demand on 24.1.1989. However, as discussed the circumstances and
the facts of the case are peculiar. In the instant case, the demand and
acceptance did not take place then and there.
the demand, as claimed, the seizure took place at a distance of 2 kilometers
from the Police Station from PW 6.
demand and seizure, the peculiarity of the case is that there were intervening
events. Moreover, the prosecution does not claim direct acceptance by the
accused No.1. We, therefore, propose to examine whether the circumstances which
have been brought on record, render corroboration to the demand and acceptance.
mention at this stage that the accused No.2 only in his statement under Section
313 of the Code of Criminal Procedure, tried to suggest that owing to his
venture of kicking PW 1 Sangamlal, he lo dged a false complaint.
during the entire cross-examination no such allegation was made to PW 1 Sangamlal.
The motive as tried to be attributed, is imaginary and by way of an
During the course of arguments or even otherwise in the cross-examination it is
not explained as to how the PW 1 complainant Sangamlal approached the accused
No.2 for getting the notes changed. No suggestion was made to PW 1 Sangamlal in
cross-examination on behalf of accused No.2.
was no even formal inquiry as to why and what for the complainant needed the
change of the notes. It was also not suggested that the complainant in any
manner was in need of the notes of smaller denominations. As such the entire
claim as put forth by the accused No.2 is completely in firm.
goes to suggest that he took the mission of getting the notes changed as
decided earlier. His defence that he happened to be in Shere Punjab Hotel and
incidentally the complainant came there, is patently false. Taking into account
the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4 Dongre, PW 5 Hadke, PW 6 Wadekar
and PW 7 Tijare it is fully established that it is the accused No.2 who took
the complainant for getting the notes exchanged. Even otherwise the defence has
not seriously challenged the testimony of PW 4 Dongre, PW 5 Hadke and PW 6 Wadekar
in this behalf.
the learned Senior Advocate very strognly 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.
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 root
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.
that view of the matter, this Appeal fails and is dismissed.