Criminal Appeal No. 18 of 2024 · High Court

for the very first time, post preferring the appeal at the stage of final hearing has filed the present application. No plausible reasons are forthcoming as to why the said exercise was not undertaking earlier. On a specific query being raised to the learned counsel for the applicant to disclose the reasons and preferring the said application at the appellate stage, the submission of the learned counsel for the applicant is that it was the mistake of the lawyer and ignorance. Pertinently, the said ground cannot be considered as a factor for allowing the said application particularly when the proceedings under Section 391 Cr.P.C./432 BNSS is not to be used as a tool to fill up the lacunae which had arisen. In Ashok Tshering Bhutia Vs. State of Sikkim 2011 (4) SCC 402, the Hon'ble Apex Court had the occasion to consider the said aspect which are as under.- "28. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.

29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352).

30. This Court in State of Gujarat vs. Mohanlal Jitamalji Porwal & anr., AIR 1987 SC 1321, dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....."

31. In Rambhau (supra), a larger Bench of this Court held as under: (SCC p. 762, para 4) "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 the 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." (Emphasis added)

32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case."

9. As a matter of fact, it is also not a case of the applicant that it was prevented for reasons beyond the control in not filing the said application as nothing is forthcoming.

10. Cumulatively analyzing the case from the four corners of law and looking into the reasons assigned in the order rejecting the said application, this Court finds that the court below has considered the aspect of the matter and did not find it appropriate while according reasons for allowing the application under Section 391 Cr.P.C./432 BNSS. Even before this Court, no reasons whatsoever are forthcoming.

11. Accordingly, no case is made out, interference is declined, the application is rejected. Order Date :- 28.7.2025 Rajesh

for the very first time, post preferring the appeal at the stage of final hearing has filed the present application. No plausible reasons are forthcoming as to why the said exercise was not undertaking earlier. On a specific query being raised to the learned counsel for the applicant to disclose the reasons and preferring the said application at the appellate stage, the submission of the learned counsel for the applicant is that it was the mistake of the lawyer and ignorance. Pertinently, the said ground cannot be considered as a factor for allowing the said application particularly when the proceedings under Section 391 Cr.P.C./432 BNSS is not to be used as a tool to fill up the lacunae which had arisen. In Ashok Tshering Bhutia Vs. State of Sikkim 2011 (4) SCC 402, the Hon'ble Apex Court had the occasion to consider the said aspect which are as under.- "28. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.

29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352).

30. This Court in State of Gujarat vs. Mohanlal Jitamalji Porwal & anr., AIR 1987 SC 1321, dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....."

31. In Rambhau (supra), a larger Bench of this Court held as under: (SCC p. 762, para 4) "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 the 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." (Emphasis added)

32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case."

9. As a matter of fact, it is also not a case of the applicant that it was prevented for reasons beyond the control in not filing the said application as nothing is forthcoming.

10. Cumulatively analyzing the case from the four corners of law and looking into the reasons assigned in the order rejecting the said application, this Court finds that the court below has considered the aspect of the matter and did not find it appropriate while according reasons for allowing the application under Section 391 Cr.P.C./432 BNSS. Even before this Court, no reasons whatsoever are forthcoming.

11. Accordingly, no case is made out, interference is declined, the application is rejected. Order Date :- 28.7.2025 Rajesh