High Court

Legal Reasoning

CriAppln-202-2020-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 202 OF 2020INCRIMINAL APPEAL NO. 1135 OF 2019Smt. Snehal Sudhakar VisputeAge : 35 years, Occ : Service,R/o Yashoda Nagar, Mehar Dham,Peth Road, Nashik,Dist. Nashik.… Applicant/Appellant [Orig. Accused No.1]VersusThe State of Maharashtra,Through Principal Secretary,Home Department,Mantralaya, Mumbai-32.… Respondent…..Mr. Rajendrraa Deshmukkh, Senior Advocate a/w Mr. Vishal Chavani/by Mr. Devang R. Deshmukh, Advocate for the Applicant.Mr. N. D. Batule, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 29.07.2024Pronounced on: 23.08.2024ORDER : 1.Learned senior counsel pointed out that applicant/appellant is alady who is still officiating as a Chief Officer, Municipal Council. Healso pointed out that due to local political rivalry, she has beenimplicated at the instance of the then President against whom actionswere initiated. That, false complaint of commission of offence underthe PC Act was lodged and applicant was tried and held guilty vide CriAppln-202-2020-2- Special (ACB) Case No. 4 of 2014 by judgment and order dated18.10.2019. It is emphasized that said judgment and order ofconviction has been taken exception to by filing Criminal Appeal No.1135 of 2019. 2.In the above background, learned senior counsel pointed outthat while trial was in progress, applicant was facing personal issuesdue to strained relations with husband. That, due to matrimonialdiscord, distinct proceedings under appropriate Acts were contested.According to learned senior counsel, to add to her adverse condition,she was unfortunately diagnosed of ailment like cancer. That, facedwith such difficult times, she was not in a position to defend her caseproperly in trial court. That, there are documents which clearlysuggest that she has been made a scapegoat and is a victim ofcircumstances. Because of above quoted adverse circumstances, shecould not produce some documentary evidence which is very crucial.Therefore, her defence was not effectively put up. However, learnedsenior counsel submits that, now appeal has been preferred andtherefore, he points out that, by exercising powers under Section 391of Cr.P.C., this appellate court can allow such documents to be takenon record so as to give applicant a fair opportunity to effectivelycontest the appeal. He pointed out that provision of Section 391 CriAppln-202-2020-3- Cr.P.C. empowers appellate court to permit additional evidence in theinterest of fair opportunity and trial and to unearth the truth.Resultantly, here, following prayers are raised in the instantapplication :“A)Grant this Interim Application and allow the applicant tosubmit the documents at Exhibit ‘P-I’ to ‘P-X’ asadditional evidence in the above mentioned CriminalAppeal and direct the learned Trial Court to record thethe evidence in respect of the above documents andsubmit report this Hon’ble Court and/or remand thematter for fresh trial and for that purpose issuenecessary orders:B)Pass such other further order as this Hon’ble Court maydeem fit and proper in the peculiar facts andcircumstances of the case.”3.Above application has been strongly opposed by learned APP bypointing out that it is an attempt to fill up the lacuna. According tolearned APP, though the documents were available with applicant,she did not adduce any evidence in trial court and therefore, shecannot be allowed to adduce such evidence in the appellate court.That, according to learned APP, though Section 391 Cr.P.C. permitsadducing additional evidence in appeal, only in exceptionalcircumstances such permission can be granted and when case to thatextent is being made out. CriAppln-202-2020-4- 4.Instant application is in above appeal in which the judgmentand order passed by learned Additional Sessions Judge, Jalgaon hasbeen taken exception to. Said judgment and order of the trial court isof 18.10.2019 and in the same year appeal seems to have been filed.Instant application ex facie seems to be filed in 2020. 5.Before ascertaining the entitlement of applicant to adduceadditional evidence in appellate court, it would be desirable toreproduce the provision of Section 391 Cr.P.C., which is as under:391. Appellate Court may take further evidence or direct itto be taken.-(1) In dealing with any appeal under this Chapter, theAppellate Court, if it thinks additional evidence to benecessary, shall record its reasons and may either takesuch evidence itself, or direct it to be taken by aMagistrate, or when the Appellate Court is a High Court,by a Court of Sessions or a Magistrate.(2)When the additional evidence is taken by the Courtof Session or the Magistrate, it or he shall certify suchevidence to the Appellate Court, and such Court shallthereupon proceed to dispose of the appeal. CriAppln-202-2020-5- (3)The accused or his pleader shall have the right to bepresent when the additional evidence is taken.(4)The taking of evidence under this section shall besubject to the provisions of Chapter XXIII, as if it were aninquiry. 6.The fundamental grounds raised for taking additional evidenceare spelt out in para 14 onwards. The sum and substance of the caseput forth for taking additional evidence on record is that, applicantwas facing matrimonial proceedings in the court of Civil Judge,Senior Division which were instituted by her husband under Section13(b) of the Hindu Marriage Act. Secondly, she was also diagnosed ofcancer chronic myeloid leukemia (CML) in October 2017. Due to suchadverse circumstances faced at that time, she was unable to producedocuments which are part of public record i.e., communication madeto the Collector, copy of notices and office notings in the file ofMunicipal Council where she was posted, copy of the courtproceedings in RCC No. 167/2012, copy of minutes of meeting whileshe was officiating, copies of notices issued by the InvestigatingOfficer, report dated 31.10.2012 and also copy of evidence indepartmental inquiry. CriAppln-202-2020-6- 7.It is true that law is fairly settled that only in exceptionalcircumstances, permission to adduce additional evidence at appellatestage can be granted. However, it is required to be satisfied that theparty seeking production of additional evidence in appellate court wasprecluded from bringing such documents on record at relevant timeand as to whether such documents are essential for just decision.8.In the case of Sukhjeet Singh v. State of Uttar Pradesh, 2019SCC OnLine SC 72 ; MANU/SC/0077/2019, decided on 24.01.2019,the Hon’ble Apex Court by referring to earlier judgments, madefollowing observations vis a vis regarding the scope and powers underSection 391 Cr.P.C.:“…. it is clear that there are no fetters on the powerunder Section 391 Cr.P.C. of the Appellate Court. Allpowers are conferred on the Court to secure ends ofjustice. The ultimate object of judicial administration is tosecure ends of justice. Court exists for rendering justice tothe people.… when it became necessary to take additionalevidence, cannot be enlisted or enumerated in any fixedformula. It depended on facts of each and every case tocome to a conclusion as to whether it is necessary to takeadditional evidence or not. CriAppln-202-2020-7- When Statute grants right to appeal to an accused,he had right to take all steps and take benefit of all powersof the Appellate Court in the ends of justice. In a criminalcase Appellate Court had to consider as to whetherconviction of Accused is sustainable or appellant had madeout a case for acquittal. The endeavour of all Courts has toreach to truth and justice.”9.Taking into account the availability of Section 391 Cr.P.C. andin the light of above judgment, this Court is only required to ascertainwhether additional documents,which are now sought to be taken atappellate stage, would be essential to reach to the truth and justice. 10.Perused the documents which are sought to be taken on record.Learned senior counsel had laid much stress on the aspect that therewas action initiated against the then President of the MunicipalCouncil and there is official record suggesting applicant beingtargeted for not obliging such politically motivated persons. Thrust ison false implication to settle scores. 11.Admittedly, applicant, on conviction, has preferred appeal andthe same is pending consideration. Claim put forth is that because ofmatrimonial discord and because of serious ailment, documents could CriAppln-202-2020-8- not be brought on record during trial itself. It is emerging from thedocuments that applicant’s marriage was facing a rough weather asher husband had initiated proceedings under the Hindu Marriage Act.Coupled with this, there are also documents showing she beingdiagnosed of cancer. Taking the same into consideration, by allowingdocuments to be taken on record, no prejudice is likely to be causedto the other side, nor it would be an attempt to fill up lacuna, as theevidence put forth by prosecution in trial court is only to be re-appreciated. No new case is tried to be introduced. In the interest offair opportunity and to meet ends of justice, application deserves tobe allowed. Hence, I proceed to pass the following order:ORDERI.The application is allowed.II.The trial court to record evidence as per procedure pertainingto the following documents:a.Application dated 02.09.2010 given by applicant to theCollector, Jalgaon, notice dated 07.09.2010, letter dated07.09.2010, report dated 21.03.2011 and order dated02.04.2012 passed by the Collector, Jalgaon. (Exhibit P-ICollectively at pages 19 to 26 of the memo of application).b.Notice dated 09.07.2012 along with letter dated12.03.2012 and the notings made by the office of theEngineer of Bhadgaon Municipal Council and the replydated 13.01.2015. (Exhibit P-II Collectively at pages 27 to34 of the memo of application) CriAppln-202-2020-9- c.R.C.C. No. 167 of 2012 registered against subsequentChief Officer in respect of same property along with F.I.R.bearing C.R. No. 154/2012 and “B” Summary Reportalong with order passed by the learned JudicialMagistrate, First Class, Bhadgaon. (Exhibit P-IIICollectively at pages 35 to 58 of the memo of application)d.Minutes of meeting dated 08.11.2011. (Exhibit P-IV atpages 59 to 60 of the memo of application)e.Notices dated 27.11.2010 and 07.12.2012 issued by thePolice Officer. (Exhibit P-V Collectively at pages 61 and 62of the memo of application)f.Report dated 31.10.2012. (Exhibit P-IX at pages 134 and135 of the memo of application).g.Evidence dated 07.11.2017 of PW2 Ashik Mohd. HanifPinjari recorded in the Departmental Inquiry. (Exhibit P-Xat page 136 to 138 of the memo of application). III.The trial court, after recording evidence on the abovedocuments as per law, shall certify same and send it back, along withdocuments, within a period of three (03) months from today, forconsideration of this Court in appeal.IV.The application is accordingly disposed of. [ABHAY S. WAGHWASE, J.]vre