Appellate Court Should Use Power Sparingly: Allahabad HC

FACTS OF THE CASE

• After a criminal trial, an order was passed by Additional Civil Judge (Junior Division), Hathras, where the applicant was convicted and sentenced punishment under Section 419 and 420 of the IPC.
• As the applicant was not satisfied with the aforesaid decision, the applicant filed another appeal while the other appeal was pending.
• An application under 391 CrPC was moved for summoning certain persons as witnesses and recording of additional evidence by the appellate court.
• The appellate court took into account the fact that the appeal had been filed after there was a lapse of more than five years. Then, the appeal was not being argued and the only purpose of summoning the witness was with a view to delay the proceedings.
• It was also noted that the applicant did not move any application for summoning of the aforesaid persons as witnesses while the trial was on the way and they could not find any valid justification for their summoning at the stage of appeal.

BEFORE THE ISSUES COURT

• Whether the current application under Section 482 of the CrPC can quash the order passed by the Additional District and Sessions Judge, Hathras who had rejected the application filed by the applicant before the Court under Section 391 of the CrPC for summoning certain persons as witnesses?

OBSERVATIONS MADE BY THE COURT

• Taking into account the powers under Section of 391 of the Code of Criminal Procedure, the procedure is akin to those of Order XLI Rule 27 of the Code of Civil Procedure.
• The Allahabad High Court held that such powers to take additional evidence by the appellate court must be exercised sparingly.
• The Bench of Justice Dr. Yogendra Kumar Srivastava stressed upon the fact that the power so exercised is of a discretionary nature and that cannot be utilized to fill up gaps and the lacunae present in the evidence.
• At the outset stage, the Court is empowered to admit additional evidence under Section 391 of the Code.

OTHER CASE LAWS

• In this regard, the Court referred the Apex Court's ruling in the case of Rambhau and Another V. State of Maharashtra (2001) 4 SCC 759, and noted that the appellate court's power to receive additional evidence under Section 391 of the Code being in the nature of an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice.
• The Court also referred to Zahira Habibulla H. Sheikh & Anr V. State Of Gujarat & Ors (2004) 4 SCC 158 wherein it was held that though under the Section, a wide discretion has been conferred, the powers could not be exercised for filling up any lacunae and the appellate court, while directing taking of additional evidence, was required to record reasons for the same.

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