BRIG. SUKHJEET SINGH (RETD.) MVC versus THE STATE OF UTTAR PRADESH & ORS. on 25 January 2019

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BRIG. SUKHJEET SINGH (RETD.) MVC

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THE STATE OF UTTAR PRADESH & ORS.

(Criminal Appeal No.148 of 2019)

BJANUARY 25, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Code of Criminal Procedure, 1973 – s.391 – Additionalevidence in Appellate Court – A regimental Welfare Trust ownedvarious immovable properties including agricultural lands – OnC18.10.1989, a deed of declaration of trust was executed by theoffice of the trust claiming it to be a new trust without changing thenature of the trust – On the same date, a resolution no.112 waspassed by the trustees where it authorized the appellant and theother accused to act in the name of the trust and sell the agriculturalDlands – Consequent to which, MOU was entered with the Trust andrespondent 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 againstthe appellant and the other accused – Trial Court convictedappellant and the other accused – Criminal Appeal was filed by theEappellant – During the pendency of the appeal, appellant filedapplications u/s.391 of the Cr.P.C. for placing on record the saidtrust deed dated 18.10.1989 and resolution no.112, and to summonwitness to prove the same – Applications were rejected by theAppellate Court – Appellant filed application u/s.482 of Cr.P.C.Fagainst the order of the Appellate Court – High Court rejected theapplication u/s. 482 Cr.P.C. and held that applications u/s. 391Cr.P.C. were filed by the appellant at a belated stage and the samewere filed with some ulterior malafide motive – On appeal, held:High Court was not right in making observation that filing ofadditional evidence was at a belated stage – Appellant was convictedGon 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 appealwas 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 stagewas unjustified – Furthermore, the application before the High CourtH

cannot said to be filed with malafide motive of the accused – Theaccused, who is convicted, has a right to take all the grounds andalso lead additional evidence, which in accordance with theAppellant Court is necessary in deciding appeal – Besides that,one ‘F’ had filed criminal case against the appellant which wasalso based on same MOU regarding the sale of agricultural land –In the said case, the Trust Deed dated 18.10.1989 was filed andproved, and appellant was acquitted – Thus, High Court committederror in not exercising jurisdiction u/s.391 of the Cr.P.C.

Code of Criminal Procedure, 1973 – s.391 – Power of theAppellate Court – Held: There are no fetters on the power u/s. 391Cr.P.C. of the Appellate Court – All powers are conferred on theCourt to secure ends of justice – The ultimate object of judicialadministration is to secure ends of justice – Court exists forrendering justice to the people.

Allowing the appeal, the Court

Conclusion

HELD: 1. The facts indicate that the trust is admittedly theowner of agricultural land in Village Bichaie. The complainanthas been in possession of large number of agricultural lands asthekedar of the trust since 1975, according to his own case, whichhe even mentioned in the First Information Report. Theapplication under Section 391 Cr.P.C. was made in the AppellateCourt to accept certified copy of the Trust Deed dated 18.10.1989and the Resolution No. 112 dated 18.10.1989 and permitting theappellant to prove the said document by leading oral evidence.The reference of Trust Deed has been made by the trial court inits judgment dated 07.10.2013. The trial court in its judgmenthad observed “the copy of the Trust Deed dated 18.10.1989 isavailable on record being paper No.30Kha/46”. The trial courtfurther has observed that “it is pertinent to mention here thatthe accused had not proved the Trust Deed dated 18.10.1989 byway of evidence”. [Para 17] [473-C-E]

2. What was available on the record was the photocopy ofthe Trust Deed. Due to non-proving of the Trust Deed, the trialcourt has not adverted to the Trust Deed and the Resolution,which were relevant to understand and know the conduct of theappellant and other trustees for entering in the MOUs for sale of A

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Aagricultural land. The facts as noted above indicate thatprosecution started recording its evidence on 17.11.2000, whichwas completed on 21.11.2012. A period of twelve years was takenby the prosecution to lead its evidence and after 21.11.2012, thejudgment was delivered on 07.10.2013. The appellant wasconvicted for offences under Section 420/34 IPC accepting theBcharge that complainant was cheated with regard to sale ofagricultural land of the Trust. [Para 18] [473-F-G]

3. A Criminal Appeal was filed by appellant in the Court ofthe Session Judge, Rampur. Thereafter, application undersection 391 Cr.P.C. (14 Kha) was filed for placing on record theCsaid Trust Deed dated 18.10.1989 and Resolution No.112.Another application under section 391 Cr.P.C. (17 Kha) was filedpraying for summoning the witnesses to prove the Trust Deeddated 18.10.1989 and Resolution No.112. Both the applicationscame for consideration before the District Judge, who by its Dorder dated 02.11.2015 rejected both the applications. Againstthe order dated 02.11.2015, an application under section 482Cr.P.C. was filed in the High Court by the applicant, which hasbeen rejected by the High Court vide its impugned judgmentdated 17.01.2017. The reasons given by the High Court andrelied by the High Court in rejecting the application filed underESection 482 are unfounded. The first observation of the HighCourt is that filing of additional evidence at such a belated stage.In the facts of the present case this Court does not approve theabove observation. When the Appellate Court has been givenpower to lead additional evidence, the observation that it isFbelated stage was uncalled for. Appellant was convicted on07.10.2013 and appeal was immediately filed on the next date,i.e. 08.10.2013. It was not even mentioned by the High Courtthat there is anything on record to indicate that appeal was beingheard and at this stage the application under Section 391 Cr.P.C.was filed, calling the application as filed at belated stage itselfGwas unjustified. Further, the observation of the High Court thatapplication was filed with some ulterior malafide motiveis notacceptable. The appellant had already been convicted by thetrial court, the charge was cheating the complainant with regard H

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to sale of agricultural land of the trust. The second Trust Deeddated 18.10.1989, which was on record and referred to by thetrial court and was refused to look into on the ground that it wasnot proved by the appellant. Filing of the application before theHigh Court to accept the certified copy of the Trust Deed andthe Resolution and to permit the appellant to lead evidence canin no manner be said to be malafide motive of the accused, whohad been convicted. In the appeal, he has right to take all thegrounds and also lead additional evidence, which in accordancewith the Appellate Court is necessary in deciding the appeal. Asnoted above, this Court has laid down that when it becomesnecessary to take additional evidence, cannot be enlisted orenumerated in any fixed formula. It depends on facts of each andevery case to come to a conclusion as to whether it is necessaryto take additional evidence or not. Present is a case where itwas due to lapse on the part of the appellant and his counsel thatthe second Trust Deed, which was basis for taking steps for saleof 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 theapplication to take additional evidence at the appellate stage isfiled by appellant for delaying the decision of the appeal toeternity, When prosecution took twelve years’ time in leadingevidence before the trial court and the judgment by trial courtwas delivered on 07.10.2013, the appeal was filed on 08.10.2013,how can appellant be castigated with the allegation that heintended to delay the appeal to eternity. The observation wasunduly misplaced and incorrect. When Statute grants right toappeal to an accused, he has right to take all steps and takebenefit of all powers of the Appellate Court in the ends of thejustice. In a criminal case Appellate Court has to consider as towhether conviction of the accused is sustainable or the appellanthas made out a case for acquittal. The endeavour of all Courtshas to reach to truth and justice. The case of the complainantalso has been that it is only after execution of the Trust Deedthat talks regarding sale of the agricultural land was initiated.Trust Deed and the Resolution, which are foundation and basisfor the start of the process of the sale of the land were AB

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Adocuments, which ought to have been permitted to be proved toarrive at any conclusion to find out the criminal intent, if any, onthe 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 onBsame allegations. In the said case, the second Trust Deed dated18.10.1989 was filed and proved and ultimately, the appellant hasbeen acquitted in the said case by judgment dated 30.11.2015,which has also been brought on record. In the other criminalcase, which was on the same allegations and which were alsobased on same MOU regarding sale of agricultural land, whereCamount of Rs.75,600/- was also paid by ‘F’, on the same date, theTrust Deed was filed and proved relying on which acquittal of theappellant has been recorded. It has been further submitted bythe appellant that reference of the judgment of the acquittal dated30.11.2015 has also been made before the High Court, but High DCourt did not advert to the said judgment. [Para 21] [475-E-F]

6. In the facts of the present case, Appellate Courtcommitted error in not exercising jurisdiction under Section 391Cr.P.C. in accepting the second Trust Deed dated 18.10.1989and the Resolution No.112 dated 18.10.1989 and refusing theEappellant to lead evidence to prove the documents. [Para 22][475-G-H]

Rajeswar Prasad Misra v. State of West Bengal andAnotherAIR 1965 SC 1887 : [1966] 1 SCR 178 ;Rambhau and Another v. State of MaharashtraF(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

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 148 of 2019.

From the Judgment and Order dated 17.01.2017 of the HighCourt 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 AllahabadHigh Court dated 17.01.2017 dismissing the application filed by theappellant under Section 482 Cr.P.C. wherein the orders passed by theSession Judge dated 02.11.2015 rejecting the two applications filed bythe appellant under Section 391 Cr.P.C. were challenged.

3. Brief facts of the case, which are necessary to be noted fordeciding this appeal are:- 3.1 A Regimental Welfare Trust relating to the Scinde HorseRegiment of Indian Army was registered on 27.06.1959. TheTrust owned various immovable properties including agriculturalland in Village Bichaie, Phoolpur and Beehat in Tehsil-Bilaspur,District-Rampur. The respondent No.2 was in possession of 50acres of agricultural land of the trust since 1975 in Village-Bichaieas thekedar. Other agricultural land of the trust in three villagesof Tehsil-Bilaspur were given to different persons as thekedar.

3.2 The office of Chairman of the Trust is held by the Commandantof Scinde Horse Regiment. On 18.10.1989, a deed ofdeclaration of trust was executed by the Commandant of theScinde Horse Regiment claiming it to be a new Trust Deedwithout changing the nature of the trust. In the deed dated18.10.1989 (registered at Delhi), details of trust land in District-Rampur were also mentioned, which included 474 Bigha land inVillage-Bichaie. One of the clauses mentioned in the Trust Deedwas that there may be conversion of the trust corpus byunanimous approval of all the trustees. On 18.10.1989, a A

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AResolution No.112 was passed by the trustees where it wasunanimously 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 thetrustees to sell the trust farm land alongwith buildings thereonsituated in villages Bichaie, Phoolpur and Beehat. ResolutionBalso contained other conditions for executing conveyance andfor registration of land.

3.3 In pursuance of the Trust Deed and the Resolution dated18.10.1989, a Memorandum of Understanding (MOU) wasentered with Scinde Horse Trust and respondent No.2-ShriCHargursharan Singh (complainant) and other purchasers forpurchase of the land. The MOU also contained a condition thatpayment was required to be made by pay order or by bank draftonly in the favour of Scinde Horse Trust. On 28.04.1991,another MOU was executed between Shri Hargursharan SinghD(complainant) and other purchasers by which complainant wasto acquire 40 acres of land at the rate of Rs.44,000/45,000/- peracre of land. On 03.07.1991, the complainant paid an amountof 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 FirstEInformation Report on 21.12.1991. The case of complainant inthe First Information Report was that although complainantagreed 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 toCol. Ravi Inder Singh as an earnest money, who assured himthat sale shall be executed till 08.07.1991, however, till date,Fsale has not been executed and accused persons are not readyand willing to execute the sale deed. Complainant further cameto know that no permission for the sale of the trust land hasbeen given to the accused persons by the Court. On thoseallegations, FIR was lodged under Section 420/406 IPC.G3.5 Almost similar allegations were made by one Shri Fateh Singhagainst the same accused wherein Shri Fateh Singh claimedthat he has paid an amount of Rs.75,600/- as an earnest moneyto Col. Ravi Inder Singh on 03.07.1991 and sale having not beenexecuted, the FIR be registered.

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3.6 On FIR filed by the complainant, case Crime No. 315/1991 wasregistered under Section 420/406 IPC and on FIR submitted byShri Fateh Singh, case Crime No. 315-A of 1991 wasregistered under Section 420/406 IPC. On investigation, in boththe crime numbers, charge sheet was submitted under Section419, 420, 467, 471 and 120-B IPC.

3.7 The appellant, who was one of the accused alongwith otheraccused filed a Criminal Misc. Application No. 6027 of 1993and 6028 of 1993 praying for quashing the FIRs in case CrimeNo. 315 of 1991 and 315-A of 1991 and the orders summoningthe accused persons by Chief Judicial Magistrate, Rampur.

3.8 The High Court while noticing the facts of the case noted fromboth 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 worthRs.1,75,000/- have been purchased. High Court also noticedthat it is admitted fact that permission to sell trust land wasapplied in the Court of District Judge, but the same was refusedon the ground that proper order in that respect can be passed inproceedings under Section 92 of Code of Civil Procedure whichwas not done. The High Court also noticed that petitionersobtained information from two eminent jurists, including Mr. SoliSorabji, who opined that the trustees have power to sell thetrust land in the instant case. The High Court after noticing thefacts had made following observations while deciding theapplications:- “……………..after going through the averments withannexure it appears that there was no dishonestmisappropriation of the property by the petitioners as entiresum has been spent for the purposes of purchasing stamppapers. An agreement has been advanced, that stamppaper could not be encashed after a lapse of six months canin no way be attributed dishonest intention to cause harm orinjury to respondent no.2 and that is also not the basicallegation against the petitioners. Since there is nomisappropriation of Rs.1,76,000/- by any of the petitioners,the charge u.S.406 IPC cannot stand, there is also noallegation with regard to forgery of anydocument……………...”

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A3.9 High Court came to the conclusion that charge of Conspiracyunder Section 120-B against petitioners (applicants) fails. HighCourt was of the view that further scrutiny of the factualmaterial would be required to be done at a stage of takingevidence, at that time, contentions of both the parties regardingelements of cheating can be examined with reference to theBevidence. High Court refrained to express any opinion withregard to above. High Court, as a result of the aboveconsideration, allowed the applications in part, set aside theorder passed by the Chief Judicial Magistrate. High Courtfurther directed that Chief Judicial Magistrate shall takeCcognizance under Section 420/34 IPC afresh against petitionerNos. 1 and 2 and issue process accordingly. Prayer forquashing of the First Information Report and the Charge Sheetwas refused. Petitioner Nos. 3 and 4 were also discharged.

3.10 After the above order of the High Court dated 09.11.1995,Dcharges were framed on 18.11.1996 under Section 420/34 IPC.On 17.11.2000, prosecution evidence started. Prosecutioncompleted its evidence on 21.11.2012. Thereafter, evidence ofdefence was also recorded and trial court delivered itsjudgment on 07.10.2013 convicting the appellant under Section420 read with Section 34 IPC and awarded sentence of fiveEyears simple imprisonment and fine of Rs.25,000/-. The otherco-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 byappellant in the Court of the Sessions Judge, Rampur. OnF26.06.2014, application under Section 391 Cr.P.C.(14 Kha) wasfiled for placing on record the said Trust Deed dated 18.10.1989and Resolution No. 112. In the application, it was stated thatTrust Deed was registered with the Registrar of Delhi and thephotocopy of the Trust Deed is available on record of the LowerGCourt being paper No. 30Kha/46, which has also beenmentioned in the impugned judgment. Certified copy was filedalongwith the application with a prayer that the document bekindly taken on record and certified copy of the Resolutionpassed by the trustees was filed, which was prayed to be takenon record.H

3.12 Another application under Section 391 Cr.P.C. (17 Kha) wasfiled on 15.07.2014 praying for summoning the witnesses to provethe Trust Deed dated 18.10.1989 and Resolution No.112. Boththe applications came for consideration before the District Judge,who by its order dated 02.11.2015 rejected both theapplications. The Appellate Court opined that lower court’srecord shows that case is very old and it remained pending inthe trial for several years. Sufficient opportunity was given tothe accused-appellant to produce evidence in defence. Nosufficient ground has been shown why these documents werenot got proved in the trial court. Hence, the applicationsdeserve to be rejected.

3.13 Against the order dated 02.11.2015, an application underSection 482 Cr.P.C. was filed in the High Court by theapplicant, which has been rejected by the High Court vide itsimpugned judgment dated 17.01.2017. High Court was of theview that the applications filed by the applicant for filingadditional evidence at such a belated stage appears to be withsome ulterior malafide motive or for delaying the decision ofthe appeal to eternity. High Court rejected the application filedunder Section 482 Cr.P.C. Feeling aggrieved, the appellant hascome up in this appeal.

4. We have heard Shri R.S. Suri, learned senior counsel for theappellant. Shri Ratnakar Das, learned counsel had appeared on behalfof the State of U.P. Shri Hargursharan Singh, respondentNo.3-complainant had appeared in person and has been heard at length.

5. Shri R.S. Suri, learned senior counsel for the appellant submitsthat Appellate Court committed error in rejecting the applications filedby the appellant under Section 391 Cr.P.C. Learned senior counselsubmits that the appellant before this Court is a retired Brigadier ofIndian Army, who had distinguished and meritorious services in the ArmedForces. He was also awarded Maha Vir Chakra in the 1971 war. Theappellant was trustee of the trust and was authorised by the trust alongwithother members to sell the trust land. Appellant did not receive a singlerupee from the complainants. The complainant (Shri Hargursharan Singh)has claimed to have paid Rs.100,400/-to Col. Ravi Inder Singh andanother complainant (Fateh Singh) had paid Rs.75,600/- to Col. Ravi A

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AInder Singh. Stamp Duty amounting to Rs.1,75,000/- was purchasedwhich document was on the record. No amount was misappropriatedor used by the appellant or trust. The allegation of cheating or fraudmade against the appellant is wholly false and incorrect. The secondTrust Deed dated 18.10.1989 was also on the record (photocopy filed bythe complainant himself), which has been noticed by the trial court in itsBjudgment as paper No. 30Kha/46. Due to lapse on part of the appellantand his counsel, above Trust Deed and the Resolution authorising thetrustees could not be proved before the trial court, whereas the aboveTrust Deed and Resolution were noticed and proved in the case CrimeNo. 315-A of 1991 filed by Shri Fateh Singh.

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6. Learned senior counsel further submits that in case CrimeNo. 315-A of 1991, which was based on the same allegations againstthe appellant, the trial court vide its judgment and order dated 30.11.2015had acquitted the appellant from the charge under Section 420/34 IPC.The trial court in the above case has noticed the second Trust Deed asDwell as Resolution No.112, which were duly proved. It is submitted thatit is lapse that the second Trust Deed and Resolution, which were basisfor entering into MOU with complainant for sale of trust land could notbe proved, whereas they were referred to and were part of the recordand proved in other case. Shri Suri submits that Appellate Court committed error in not exercising jurisdiction under Section 391 Cr.P.C.Ein accepting the documents on record and not permitting the appellant tolead evidence to prove the said documents, which has resulted in failureof justice. Shri Suri further submits that the FIR lodged by thecomplainant was another example of malicious prosecution of theappellant. He submits that this Court in Parminder Kaur Vs. State ofFUttar Pradesh and Another, (2010) 1 SCC 322: AIR 2010 SC 840,while quashing the proceeding arisen out of complaint lodged byHargursharan Singh has observed that Hargursharan Singh lodgedmalicious and vengeance full prosecution case against his sister-in-law,which was quashed by this Court.

G7. Shri Suri further submits that the Appellate Court for findingout and to ensure that no innocent person is convicted, ought to havegiven opportunity to the appellant to lead evidence to prove the secondTrust Deed and the Resolution, denial of which has caused immenseinjustice.

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8. Shri Ratnakar Das, learned counsel appearing for the State ofU.P. submits that power under Section 391 Cr.P.C. has to be exercisedsparingly and in the ends of justice. He submits that permitting theappellant to lead evidence to prove the second Trust Deed andResolution will involve a fresh trial. He further submits that even if acertified 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 noobjection if documents are accepted on record but given opportunity tolead evidence shall consume a lot of time, which shall delay the disposalof the appeal. He submits that even in the prayer made in theapplication (17-Kha), no witness has been listed, who can prove thedocuments. 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 supportedthe order passed by the Session Judge rejecting the application filedunder Section 391 Cr.P.C. by the appellant. He submits that this SLPhas been filed only with intent to delay the disposal of the criminalappeal. He submits that the appellant had not obtained permission fromthe District Judge for sale of the land and the District Judge had rejectedthe application on 27.10.1989 and despite the rejection of theapplication, the appellant and other members of the trust proceeded withtheir design to sell the land, which led the complainant to pay amount ofRs.100,400/- to Col. Ravi Inder Singh. The appellant was convicted on07.10.2013 and the application under Section 391 Cr.P.C. was filed afternine months. Opportunity to lead evidence in the defence was availedby the appellant. The Session Judge has rejected the application filedunder Section 391 Cr.P.C. by giving cogent reasons. High Court hasalso rightly upheld the said order, which needs no interference by thisCourt. The application has been filed by the appellant just to cover hisoffence. The appellant has been approbating and reprobating at the sametime. The document dated 18.10.1989 is already on the file and hencethere is no necessity to bring it again. Original Trust Deed wasregistered on 27.06.1959 at Rampur, which is still valid. In spite ofpermission having been refused, the appellants have been contendingthat they have still right to sell the property. Shri Hargursharan Singhfurther submitted that appellant had committed forgery and fraud. Hehas referred to Page 28 of the paperbook, Para No.8 and submitted that AB

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Ain para No.8 the word “not” has been deleted from Clause 8, whichshows that the appellants have not come with the clean hands beforethis Court and they have concealed the true clause of Trust Deed fromthis Court also. He further submits that this Court should monitor thehearing of the Criminal Appeal pending before Sessions Judge.

B10. We have considered the submissions of the parties and haveperused the records.

11. In the present appeal, we are concerned only with therejection of application filed by the appellant under Section 391 Cr.P.C.before the Session Judge in the criminal appeal filed by him against theCconviction order, whether the Session Judge committed error in notexercising power under Section 391 Cr.P.C. to permit the appellant tolead additional evidence is a question to be answered. Whether theHigh Court committed error in not exercising power under Section 482Cr.P.C. as to secure the ends of justice?

D12. Chapter XXIX of the Code of Criminal Procedure, 1973 dealswith “Appeals”. Section 391 Cr.P.C. empowers the Appellate Court totake further evidence or direct it to be taken. Section 391 is as follows:-

“391. Appellate court may take further evidence or direct itto be taken.—(1) In dealing with any appeal under this chapter,Ethe 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 AppellateCourt is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of SessionFor the Magistrate, it or he shall certify such evidence to theAppellate Court, and such Court shall thereupon proceed to disposeof the appeal.

(3) The accused or his pleader shall have the right to be presentwhen the additional evidence is taken.

(4) The taking of evidence under this section shall be subject tothe provisions of Chapter XXIII, as if it were an inquiry.”

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13. The key words in Section 391(1) are “if it thinks additionalevidence 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 filedby the accused, who have been convicted. The powers of AppellateCourt are contained in Section 386. In an appeal from a conviction, anAppellate Court can exercise power under Section 386(b), which is tothe following effect:- (b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge theaccused, or order him to be re- tried by a Court of competentjurisdiction subordinate to such Appellate Court or committedfor trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, but not soas 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 Courtto secure ends of justice. The scope and ambit of Section 391 Cr.P.C.has come up for consideration before this Court in Rajeswar PrasadMisra Vs. State of West Bengal and Another, AIR 1965 SC 1887.Justice Hidayatullah, speaking for the Bench held that a wide discretionis conferred on the Appellate Courts and the additional evidence may benecessary for a variety of reasons. He held that additional evidencemust be necessary not because it would be impossible to pronouncejudgment 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 isconferred on appellate courts, the limits of that courts’ jurisdictionmust obviously be dictated by the exigency of the situation andfair play and good sense appear to be the only safe guides. Thereis, no doubt, some analogy between the power to order a retrialand the power to take additional evidence. The former is anextreme step appropriately taken if additional evidence will notsuffice. Both actions subsume failure of justice as a conditionprecedent. There the resemblance ends and it is hardly proper toconstrue one section with the aid of observations made by thisCourt in the interpretation of the other section.

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9. Additional evidence may be necessary for a variety of reasonswhich it is hardly proper to construe one section with the aid ofobservations made to do what the legislature has refrained fromdoing, namely, to control discretion of the appellate court to certainstated circumstances. It may, however, be said that additionalevidence must be necessary not because it would be impossibleto pronounce judgment but because there would be failure of justicewithout it. The power must be exercised sparingly and only insuitable cases. Once such action is justified, there is no restrictionon the kind of evidence which may be received. It may be formalor substantial. It must, of course, not be received in such a way asto cause prejudice to the accused as for example it should not bereceived as a disguise for a retrial or to change the nature of thecase against him. The order must not ordinarily be made if theprosecution has had a fair opportunity and has not availed of itunless the requirements of justice dictateotherwise………………………….”

15. This Court again in Rambhau and Another Vs. State ofMaharashtra, (2001) 4 SCC 759 had noted the power under Section391 Cr.P.C. of the Appellate Court. Following was stated in ParagraphNos. 1 and 2:- “1. There is available a very wide discretion in the matter ofobtaining additional evidence in terms of Section 391 of the Codeof 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 bereceived 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 caseagainst the accused. This Court in the case of Rajeswar PrasadMisra v. State of W.B. in no uncertain terms observed that theorder must not ordinarily be made if the prosecution has had a fairopportunity and has not availed of it. This Court was candid enoughto record however, that it is the concept of justice which ought toprevail and in the event, the same dictates exercise of power asconferred by the Code, there ought not to be any hesitation in thatregard.”

16. From the law laid down by this Court as noted above, it isclear that there are no fetters on the power under Section 391 Cr.P.C. ofthe Appellate Court. All powers are conferred on the Court to secureends of justice. The ultimate object of judicial administration is to secureends of justice. Court exists for rendering justice to the people.

17. Now, we revert to the facts of the present case to examine asto whether present was the case for exercise of the power by theAppellate Court under Section 391 Cr.P.C. to permit adducing theadditional evidence at the appellate stage. The facts as noted aboveindicate that the trust is admittedly the owner of agricultural land inVillage Bichaie. The complainant has been in possession of largenumber of agricultural lands as thekedar of the trust since 1975,according to his own case, which he even mentioned in the FirstInformation Report. The application under Section 391 Cr.P.C. wasmade in the Appellate Court to accept certified copy of the Trust Deeddated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 andpermitting the appellant to prove the said document by leading oralevidence. The reference of Trust Deed has been made by the trialcourt in its judgment dated 07.10.2013. The trial court in its judgmenthad observed “the copy of the Trust Deed dated 18.10.1989 is availableon record being paper No.30Kha/46”. The trial court further hasobserved that “it is pertinent to mention here that the accused had notproved the Trust Deed dated 18.10.1989 by way of evidence”.

18. What was available on the record was the photocopy of theTrust Deed. Due to non-proving of the Trust Deed, the trial court hasnot adverted to the Trust Deed and the Resolution, which were relevantto understand and know the conduct of the appellant and other trusteesfor entering in the MOUs for sale of agricultural land. The facts asnoted above indicate that prosecution started recording its evidence on17.11.2000, which was completed on 21.11.2012. A period of twelveyears was taken by the prosecution to lead its evidence and after21.11.2012, the judgment was delivered on 07.10.2013. The appellantwas convicted for offences under Section 420/34 IPC accepting thecharge that complainant was cheated with regard to sale of agriculturalland of the Trust. The High Court while rejecting the application filedunder Section 482 Cr.P.C. of the appellant has made followingobservations:- A

B

C

D

E

F

G

H

A“……….The present exercise initiated by the applicant for filingadditional evidence at such a belated stage appears to be withsome ulterior malafide motive or delaying the decision of theappeal to eternity……..”

19. Both the above reasons given by the High Court and relied byBthe High Court in rejecting the application filed under Section 482 areunfounded. The first observation of the High Court is that filing ofadditional evidence at such a belated stage. In the facts of the presentcase we do not approve the above observation. When the AppellateCourt has been given power to lead additional evidence, the observationthat it is belated stage was uncalled for. Appellant was convicted onC07.10.2013 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 isanything on record to indicate that appeal was being heard and at thisstage the application under Section 391 Cr.P.C. was filed, calling theapplication as filed at belated stage itself was unjustified. Further, theDobservation of the High Court that application was filed with someulterior malafide motive also does not commend us. The appellant hadalready been convicted by the trial court, the charge was cheating thecomplainant with regard to sale of agricultural land of the trust. Thesecond 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 itEwas not proved by the appellant. Filing of the application before theHigh Court to accept the certified copy of the Trust Deed and theResolution and to permit the appellant to lead evidence can in no mannerbe 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 additionalFevidence, which in accordance with the Appellate Court is necessary indeciding the appeal. As noted above, this Court has laid down that whenit becomes necessary to take additional evidence, cannot be enlisted orenumerated in any fixed formula. It depends on facts of each and everycase to come to a conclusion as to whether it is necessary to takeadditional evidence or not. Present is a case where it was due to lapseGon 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 theapplication to take additional evidence at the appellate stage is filed by H

appellant for delaying the decision of the appeal to eternity, we fail tosee that when prosecution took twelve years’ time in leading evidencebefore the trial court and the judgment by trial court was delivered on07.10.2013, the appeal was filed on 08.10.2013, how can appellant becastigatedwith the allegation that he intended to delay the appeal toeternity. The observation was unduly misplaced and incorrect. WhenStatute grants right to appeal to an accused, he has right to take all stepsand take benefit of all powers of the Appellate Court in the ends of thejustice. In a criminal case Appellate Court has to consider as to whetherconviction of the accused is sustainable or the appellant has made out acase for acquittal. The endeavour of all Courts has to reach to truth andjustice. The case of the complainant also has been that it is only afterexecution of the Trust Deed that talks regarding sale of the agriculturalland was initiated. Trust Deed and the Resolution, which are foundationand basis for the start of the process of the sale of the land weredocuments, which ought to have been permitted to be proved to arriveat any conclusion to find out the criminal intent, if any, on the part of theappellant.

21. It is further relevant to notice that in case Crime No. 315-A of1991 filed by Shri Fateh Singh, who was also one of the purchasers andlodged the FIR on same allegations. In the said case, the second TrustDeed dated 18.10.1989 was filed and proved and ultimately, theappellant 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 othercriminal case, which was on the same allegations and which were alsobased on same MOU regarding sale of agricultural land, where amountof Rs.75,600/- was also paid by Shri Fateh Singh, on the same date, theTrust Deed was filed and proved relying on which acquittal of theappellant has been recorded. It has been further submitted by theappellant that reference of the judgment of the acquittal dated 30.11.2015has also been made before the High Court, but High Court did notadvert to the said judgment.

22. In the facts of the present case, we are of the view thatAppellate Court committed error in not exercising jurisdiction underSection 391 Cr.P.C. in accepting the second Trust Deed dated 18.10.1989and the Resolution No.112 dated 18.10.1989 and refusing the appellantto lead evidence to prove the documents.

A

B

C

D

E

F

G

H

A23. Shri Hargursharan Singh has also contended before us thatthe appellants are not entitled for any relief since they have not filedcorrect copy of the Trust Deed before this Court and are trying tomislead this Court. He has referred to Clause (8) of the Trust Deed atPage 28 of the paperbook, where, according to him, the word “not” hasnot been deliberately typed in Clause (8). Shri Suri appearing for theBappellant has very fairly submitted that omission of word “not” in ParaNo.(8) is only an inadvertent mistake of typing, which could not bechecked by the appellant. When the certified copy of the Trust Deedhas already been filed before the Appellate Court by the appellant, wefail to see what will be gained by the appellant by reproducing anCincorrect clause of the Trust Deed. We are satisfied that non-mentionof the word “not” is only a mistake, which is neither deliberate nor withany intent to mislead this Court. The complainant cannot be allowed tomake any capital of such mistake.

24. We, thus, come to the conclusion that in the present case, theDAppellate Court has failed to exercise its jurisdiction under Section 391Cr.P.C. and has committed error in rejecting the applications underSection 391 Cr.P.C. (14 Kha and 17 Kha). The order of the AppellateCourt dated 02.11.2015 as well as order of the High Court dated15.03.2016 are set aside. The applications 14 Kha and 17 Kha stand

allowed. We further direct that appellant be permitted to lead oralEevidence to prove the contents of the Deed dated 18.10.1989 by leadingat-least one witness. The Appellate Court shall receive the additionalevidence as directed above and complete the exercise within six monthsfrom the date of production of certified copy of this order before it. TheCriminal Appeal, thereafter shall be decided expeditiously. The appealFis allowed accordingly.

Ankit Gyan

Appeal allowed.

G

H