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CASE NO.:

Appeal (crl.) 636 of 1995

PETITIONER:

RAMBHAU & ANR.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 26/04/2001

BENCH:

Umesh C. Banerjee & K.G. Balakrishnan

JUDGMENT:

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BANERJEE, J.

There is available a very wide discretion in the matter

of obtaining additional evidence in terms of Section 391 of

the Code of Criminal Procedure. A plain look at the

statutory provisions (Section 391) would reveal the same and

the same reads as below:

391. Appellate Court may take further evidence or

direct it to be taken (1) In dealing with any appeal under

this Chapter, the 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 Appellate Court is a High

Court, by a Court of Session or a Magistrate. (2) When the

additional evidence is taken by the Court of Session or the

Magistrate, it or he shall certify such evidence to the

appellate Court, and such Court shall thereupon proceed to

dispose of the appeal.

(3) The accused or his pleader shall have the right to

be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be

subject to the provisions of Chapter XXIII, as if it were an

inquiry.

A word of caution however, ought to be introduced for

guidance, to wit: that this additional evidence cannot and

ought not to be received in such a way so as to cause any

prejudice to the accused. It is not a disguise for a

re-trial or to change the nature of the case against the

accused. This Court in the case of Rajeswar Prasad Misra v.

State of West Bengal and another (AIR 1965 SC 1887) in no

uncertain terms observed that the order must not ordinarily

be made if the prosecution has had a fair opportunity and

has not availed of it. This Court was candid enough to

record however, that it is the concept of justice which

ought to prevail and in the event, the same dictates

exercise of power as conferred by the Code, there ought not

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to be any hesitation in that regard. Be it noted that no

set of principles can be set forth for such an exercise of

power under Section 391, since the same is dependant upon

the fact-situation of the matter and having due regard to

the concept of fair play and justice, well being of the

society.

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 sub-serve 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.

On the factual backdrop of the matter in issue, it

appears that against an order of acquittal for the offence

punishable under Section 13 (1) (d) read with Section 13 (2)

of the Prevention of Corruption Act, the High Court reversed

the finding of acquittal and held the accused persons guilty

for the offence for which they were charged and convicted

them for the offence under Section 13 (2) of the Prevention

of Corruption Act and sentenced the Appellant No.1 to suffer

rigorous imprisonment for a period of two years and to pay a

fine of Rs.5,000/- and as against accused No.2, the

imprisonment period was for one year together with a fine

amount of Rs.3000/- and hence the Appeal before this Court.

Before going into the factual score further, it is

convenient to note at this juncture that during the course

of hearing of this appeal, the High Court thought it fit to

conduct an additional examination of both the accused

persons with a reasoning as below: We have examined them

to rectify the irregularity as cropped up and pointed out by

the defence. The word irregularity in common English

parlance means and implies contrary to rule. This Court in

the case of The Martin Burn Ltd. v. The Corporation of

Calcutta (AIR 1966 SC 529) while explaining the meaning of

irregularity observed: A point was, however, made that

Section 131 (2)(b) apply only to a cancellation on the

ground of irregularity, that is a procedural defect such as,

absence of notice, omission to give a hearing etc., There

is, however, no reason to restrict the ordinary meaning of

the word irregularity and confine it to procedural defects

only. None has been advanced. Such a contention was

rejected and we think rightly in 57 Calcutta W.N.882: (AIR

1953 Calcutta 773). That word clearly covers any case where

a thing has not been done in the manner laid down by the

statute, irrespective of what that manner might be.

Blacks Law Dictionary defines the word as not according to

rule and not regular i.e. which stands contrary to rule.

As noticed above, the purpose of introduction of Section 391

(earlier Section 428) in the statute book has been for the

purpose of making it available to the Court nor to fill up

any gap in the prosecution case but to oversee that the

concept of justice does not suffer. The High Court itself

records to rectify the irregularity, the issue therefore,

is whether this rectification by an additional evidence is a

mere irregularity or goes to the root of the issue and

instead of sub- serving the ends of justice, the same runs

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counter to the concept of justice.

It is at this stage however, the entire factual set up

ought to be adverted to. On 19-01-1989 one Mr. Hiwanje

lodged a complaint of abuses and quarrel between Sangamlal

and his wife. The Appellant No.1 being the Sub-Inspector

called them to the Police Station on 23-1-1989 and on their

reporting at about 9.30 a.m., Appellant No.1 demanded

Rs.1500 from Sangamlal for terminating the proceedings.

With the intervention of the Appellant No.2 however, the

demand was settled at Rs.1300/-. The complainant (PW 1)

Sangamlal, however, at around 1245 hours lodged a report

with the Anti Corruption Bureau and accordingly a Panchnama

was drawn. One Purushottam Manapure was introduced as Panch

and 13 tainted currency notes of 100 denomination were

entrusted to the complainant P.W.1. The raiding party in

the afternoon arranged a trap, it was however unsuccessful.

The factual context depicts that on 24.1.1989 at about

8.30 a.m., PW 1 Sangamlal and Panch PW 3 Manapure went to

the accused No.1 in the Police Station and the later

directed Sangamlal to go with the accused No.2 for the

purpose of exchange of notes. Certain other factual details

though available on record but can be avoided as irrelevant

for the present purpose, suffice it to note that eventually

the tainted currency notes in possession with the

complainant reached P.W.6 Raman Wadekar and the raiding

party headed by PW 9 Sub-Inspector Saraf reached the spot

and seized the tainted currency notes from PW 6 Wadekar in

the petrol pump. The seizure thus took place at a spot

which was 2 kilometers away from the Police Station. The

second Panchnama was accordingly drawn up and after

necessary investigation, chargesheet was filed upon

obtaining sanction from the Commissioner of Police for the

launch of prosecution. The defence of the accused No.1 was

of total denial and according to him, it is by reason of

annoyance and vendetta that has brought the complaint into

light and has no factual support therefor.

Incidentally, be it noted that P.W.7 Tijare, a neighbour

of Sangam Lal (P.W.1) was throughout in the company of

Sangamlal. Coming back to the defence once again, the

Appellant No.2 also denied such an involvement and according

to him, since the vehicle of one relation of P.W.7 Tijare

was questioned on the road, P.W.7 has given false version

against him.

Records depict that learned Special Judge, however,

recorded a finding of acquittal on the ground that the

sanction as accorded is bad in law since the Commissioner of

Police, though was the appointing authority but no evidence

has been laid that he was also the disciplinary authority

and as such the Commissioner is not otherwise competent to

accord sanction to prosecute. The High court negatived it

and we do not see any reason for a different conclusion in

the matter. Significantly, even the defence counsel, as has

been recorded in the judgment, could not support such a

reasoning. As regards the merit, the learned Special Judge

held that the demand and acceptance by the Appellant No.1

have not been proved. The learned Special Judge in his

judgment did mention the instance of demand on 22nd January

and reached a conclusion that the same has not been proved

but there has been a total omission as regards the demand on

23rd January. This aspect of the matter has been

elaborately dealt with by the High Court and the High Court

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upon consideration of all relevant evidence came to a

conclusion that taking into account the version of

Sangamlal, the complainant and that of Tijare (P.W.7), there

cannot be any manner of doubt that the prosecution has fully

established the demand by Appellant No.1 on 23rd January,

1989. As regards the demand and acceptance on 24th January,

1989, the High Court also negatived the finding of the

learned Special Judge who reached a conclusion that the

demand on 24th January, 1989 is completely untrustworthy.

It is on this score, it was argued before the High Court

that the factum of payment on 24th January as per the

version of P.W.1 Sangamlal was not put to the accused

persons in their examination under Section 313 of the Code

of Criminal Procedure and as such circumstances cannot be

used against the accused. It is on this count, the High

Court conducted additional examination of both the accused

persons in the High Court so as to rectify the irregularity

as cropped up and pointed out by the defence.

Before the High Court strenuous submissions made

pertaining to the effect of acceptance of uncorroborated

testimony, and the High Court dealt with the issue in the

manner following:

7. There cannot be any debate on a broad proposition.

Judicial prudence ordinarily look for a corroboration from

an independent witness, to the version of the complainant.

Undisputedly the Panch does not render corroboration to the

version of the complainant on the aspect of demand on

24.1.1989. However, as discussed the circumstances and the

facts of the case are peculiar. In the instant case, the

demand and acceptance did not take place then and there.

After the demand, as claimed, the seizure took place at a

distance of 2 kilometers from the Police Station from PW 6.

Between demand and seizure, the peculiarity of the case is

that there were intervening events. Moreover, the

prosecution does not claim direct acceptance by the accused

No.1. We, therefore, propose to examine whether the

circumstances which have been brought on record, render

corroboration to the demand and acceptance.

We may mention at this stage that the accused No.2 only

in his statement under Section 313 of the Code of Criminal

Procedure, tried to suggest that owing to his venture of

kicking PW 1 Sangamlal, he lo dged a false complaint.

However, during the entire cross-examination no such

allegation was made to PW 1 Sangamlal. The motive as tried

to be attributed, is imaginary and by way of an

afterthought.

8.

9. During the course of arguments or even otherwise in

the cross-examination it is not explained as to how the PW 1

complainant Sangamlal approached the accused No.2 for

getting the notes changed. No suggestion was made to PW 1

Sangamlal in cross-examination on behalf of accused No.2.

There was no even formal inquiry as to why and what for the

complainant needed the change of the notes. It was also not

suggested that the complainant in any manner was in need of

the notes of smaller denominations. As such the entire

claim as put forth by the accused No.2 is completely infirm.

It goes to suggest that he took the mission of getting the

notes changed as decided earlier. His defence that he

happened to be in Shere Punjab Hotel and incidentally the

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complainant came there, is patently false. Taking into

account the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4

Dongre, PW 5 Hadke, PW 6 Wadekar and PW 7 Tijare it is fully

established that it is the accused No.2 who took the

complainant for getting the notes exchanged. Even otherwise

the defence has not seriously challenged the testimony of PW

4 Dongre, PW 5 Hadke and PW 6 Wadekar in this behalf.

Mr. Verma, the learned Senior Advocate very strognly

contended that High Court had no authority or jurisdiction

to examine the accused persons in the High Court to rectify

the defect and the lacuna in the prosecution. The High

Court records it to be a mere irregularity and on the

complexities of issue, we do not see any reason as to why

such a course ought not to be permitted to be taken recourse

to, in the fact-situation of the matter under consideration.

The omission cannot but be ascribed to be a mere

irregularity. The High Court on the basis of relevant

evidence on record held that the prosecution has fully

established the demand by the accused No.1 on 23rd January,

1989. It is the demand of 24th January which was said to

have not been put to the accused but the factum of demand on

an earlier day stands proved and concluded together with the

seizure of the tainted notes on 24th January, completes the

offence, as such omission to put to the accused, the demand

on 24th cannot be said to be of such a nature which would go

to the root of the matter. It is not a defect incurable in

nature but a mere irregularity which the High Court thought

it fit to cure, as such we do not find any material

objection to such a method as stands adopted by the High

Court. The irregularity has been cured. The prosecution

has clearly established that the Appellant No.1 is a public

servant and in discharge of his official duties made a

demand of Rs.1300/- from PW 1 Sangamlal as an illegal

gratification and taking into account the evidence as is

available on record, the accused No.2 also has played a very

significant role in negotiating on the figure of the amount

and further having the notes exchanged at the dictate of the

Appellant No.1, it cannot thus but be said that the

Appellant No.2 substantially abetted the crime and thus we

record our agreement in the finding of the High Court that

the accused persons are guilty of the offence for which they

were charged and question of recording a finding of

acquittal in the matter cannot by any stretch be sustained.

In that view of the matter, this Appeal fails and is

dismissed.