Appellate Courts Can Allow Additional Evidence U/S 391 CrPC Only In "Exceptional Circumstances": Jharkhand High Court

The Jharkhand High Court has held that Appellate Courts can allow additional evidence under Section 391 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') only in "exceptional circumstances" and the same cannot be used merely to fill in lacuna that might exist in the evidence. While upholding the order of the Lower Appellate Court, a Single Judge Bench of Justice Sanjay Kumar Dwivedi observed, "It is settled proposition of law that for filling in lacuna, the petitions under Sections 311 and 391 Cr.P.C. and Section 165 of the Evidence Act are not being allowed. Only in the exceptional circumstance, at the appellate stage, the court can allow the additional evidence in terms of Section 391 Cr.P.C." Brief Facts: The petitioners were convicted under Sections 452/457 of the IPC by the Trial Court. Against that order, an appeal was filed by the petitioners before the Appellate Court. Further a petition under Section 391, Cr.P.C. dated 17.02.2016 was filed by the appellants in the said appeal for exhibiting two judgments before the Appellate Court. However, the same was rejected. Thus, this petition was filed for quashing the said order of rejection dated 19.01.2017 passed by the learned Additional Sessions Judge-V, Jamshedpur. Contentions of the Parties: Mr. Nagmani Tiwari, counsel for the petitioners, submitted that the Appellate Court rejected the said petition without appreciating the purpose of filing the same. He also contended that the Appellate Court is having power to accept additional evidence under Section 391, Cr.P.C. Mr. Harsh Chandra, counsel for Opposite Party No. 2, submitted that there is no illegality in the impugned order and the Lower Appellate Court came to that conclusion after placing reliance upon settled precedents. Further, he alleged that due diligence was not shown by the petitioners in the trial. He pointed out that in earlier occasions, the petitioners had not even tried to bring the fact before the Trial Court. Again, they also did not do the same at the initial stage of appeal. Thus, he submitted, the Lower Appellate Court has rightly rejected the petition. Mrs. Priya Shrestha, Special Public Prosecutor for the State submitted that there is no illegality in the impugned order and the learned Court, after looking into entire materials, has rightly rejected the petition. Court's Observations: The Court, after going through the impugned order, found that the learned Lower Appellate Court has taken care of the entire aspects of the matter. The High Court then reiterated that for filling in lacuna in the evidence, the petition under Section 391, Cr.P.C. cannot be used and the Appellate Courts can allow additional evidence under Section 391 only in exceptional circumstances. The Court noted that in the case in hand, the petitioners did not show due diligence to bring on record two documents before the Trial Court. Looking into the petition filed by the petitioners for exhibiting two judgments, it appeared to the Court that not even a single word was whispered for urging to accept additional evidence. In view of the aforesaid facts, it was held that there is no illegality in the impugned order passed by the learned Additional Sessions Judge-V, Jamshedpur. Accordingly, the petition was dismissed being bereft of merit. Case Title: Nirmal Bhattacharya & Anr. v. The State of Jharkhand & Anr. Case No.: Cr.M.P. No. 453 of 2017 Judgment Dated: 14th July 2022 Coram: Sanjay Kumar Dwivedi, J. Counsel for the Petitioners: Mr. Nagmani Tiwari, Advocate Counsel for the Respondents: Mr. Harsh Chandra, Advocate and Mrs. Priya Shrestha, Special Public Prosecutor Citation: 2022 LiveLaw (Jha) 67 Click Here To Read/Download Order

Appellate Courts Can Allow Additional Evidence U/S 391 CrPC Only In "Exceptional Circumstances": Jharkhand High Court

Jyoti Prakash Dutta

Tags