MANU/SC/0322/2004 Equivalent Citation: 2004(3)ACR2126(SC), AIR2004SC346, 2004(3)BLJR1971, 2004CriLJ2050, (2004)2GLR1078, JT2004(Suppl1)SC94, 2004(4)SCALE375, (2004)4SCC158, [2004]1SCR1050, 2004(2)UJ1041 IN THE SUPREME

COURT OF INDIA Criminal Appeal Nos. 446-449/2004 (Arising out of SLP (Crl.) Nos. 538-541/2004) and Criminal Appeal Nos. 450-452/2004 (Arising out of SLP (Crl.) Nos. 1039-1041/2004) Decided On: 12.04.2004 Appellants: Zahira Habibulla H. Sheikh and Anr. Vs. Respondent: State of Gujarat and Ors. Best Bakery Case Hon'ble Judges/Coram: Doraiswamy Raju and Dr. Arijit Pasayat, JJ. Subject: Criminal Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 161, Code of Criminal Procedure, 1973 (CrPC) Section 161(1), Code of Criminal Procedure, 1973 (CrPC) - Section 161(3), Code of Criminal Procedure, 1973 (CrPC) - Section 162, Code of Criminal Procedure, 1973 (CrPC) - Section 173(8), Code of Criminal Procedure, 1973 (CrPC) - Section 309, Code of Criminal Procedure, 1973 (CrPC) - Section 311, Code of Criminal Procedure, 1973 (CrPC) - Section 385(2), Code of Criminal Procedure, 1973 (CrPC) - Section 386, Code of Criminal Procedure, 1973 (CrPC) - Section 391, Code of Criminal Procedure, 1973 (CrPC) - Section 406; Constitution of India - Article 32, Constitution of India - Article 136; Indian Evidence Act, 1872 - Section 165; Terrorist and Disruptive Activities (Prevention) Act, 1987; ; Code of Criminal Procedure, 1898 (CrPC) - Section 540 Cases Referred: Jamatraj Kewalji Govani v. The State of Maharashtra, MANU/SC/0063/1967; Mohanlal Shamji Soni v. Union of India and Anr., MANU/SC/0318/1991; Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani, MANU/SC/0134/1978; G.X. Francis v. Banke Behari Singe, MANU/SC/0142/1957; Rambhau and Anr. v. State of Maharashtra, MANU/SC/0309/2001; Ram Chander v. State of Haryana,MANU/SC/0206/1981; Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi, MANU/SC/0397/1999; Jennison v. Backer, 1972 (1) All E.R. 1006; Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr., MANU/SC/0677/2003; Vineet Narian v. Union of India, MANU/SC/0827/1998; Karnel v. State of M.P., MANU/SC/0497/1995; Paras Yadav and Ors. v. State of Bihar,MANU/SC/0009/1999; Ram Bihari Yadav v. State of Bihar and Ors., MANU/SC/0302/1998; Amar Singh v. Balwinder Singh and Ors., MANU/SC/0065/2003; Shailendra Kumar v. State of Bihar and Ors.,MANU/SC/0757/2001; Gurcharan Das Chadha v. State of Rajasthan, MANU/SC/0093/1966; K. Ambazhagan v. The Superintendent of Police and Ors. etc., JT 2003 (9) SC 31; State of Punjab v. Jagdev Singe Talwandi, MANU/SC/0159/1983 Disposition: Appeal allowed Citing Reference: Mentioned 13 Relied On 4 Case Note: Criminal - Criminal Procedure Code (CrPC), 1973 - Sections 161, 173(8), 309, 311, 385(2), 386, 391 and 406; Evidence Act, 1872 - Section 165 - Best Bakery Case - Appeal against acquittal - Prayer for Retrial and adduction of Additional evidence - Best Bakery a business concern at Vadodra burnt down by an unruly mob of large number of people Attacks alleged to be retaliatory action to avenge killing of 56 persons burnt to death in Sabarmati express - Zahira star witness lost family members including helpless women and innocent children - Prosecution of accused persons after framing charge sheet Eyewitnesses including Zahira resiling from statements made during investigation Acquittal by Trial Court - Challenged by appeals filed by Zahira, State - Appeal by Zahira, star witness alleging that during trial she was forced to depose falsely and turn hostile due

to threats and coercion Applications filed by appellant State under Sections 391, 311 for adduction of additional evidence and for examination of certain persons as witnesses - High Court dismissing appeals, revision and applications - Validity - Submission of appellant State and Zahira that since large number of witnesses having turned hostile although raised reasonable suspicion that witnesses were being threatened or coerced, however, no steps taken by public prosecutor to protect star witness and no request made by public prosecutor to hold trial in a camera - Non examination of eyewitnesses on one pretext or other - Non exercise of power by Trial Court under Section 311 and Section 165 Indian Evidence Act - Non examination of injured witnesses - Non acceptance of Additional evidence relating to affidavits filed by injured witnesses, who were forced not to tell truth Plea of accused that courts were right in holding that additional evidence was not necessary after analyzing existing evidence held unsustainable - Held that High Court erred in refusing to accept application for adduction of additional evidence in the facts and circumstances of the case - Held that if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings - There being several infirmities in investigation and High Court having come to a definite conclusion that the investigation carried out by the police was dishonest and faulty, ought to have directed a re-trial of the case - High Court erred in holding on its own about false implication without concrete basis and that too merely on conjectures - When the circumstances clearly indicated that there was some truth or prima facie substance in the grievance made, appropriate course for the Courts was to admit additional evidence for final adjudication so that the acceptability or otherwise or evidence tendered by way of additional evidence could be tested properly and legally tested in the context of probative value of the two versions - As the provisions under Section 391 of the Code are by way of an exception, the Court has to carefully consider the need for and desirability to accept additional evidence Held to be fit and proper case, for retrial in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation - Direction given for retrial in a competent court in the jurisdiction of Bombay High Court and appointment of another public prosecuter JUDGMENT Arijit Pasayat, J. 1. Leave granted. 2. The present appeals have several unusual features and some of them pose very serious questions of far reaching consequences. The case is commonly to be known as ""best Bakery Case"". One of the appeals is by Zahira who claims to be an eye-witness to macabre killings allegedly as a result of communal frenzy. She made statements and filed affidavits after completion of trial and judgment by the trial Court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and coercion. That raises an important issue regarding witness protection besides the quality and credibility of the evidence before Court. The other rather unusual question interestingly raised by the State of Gujarat itself relates to improper conduct of trial by the public prosecutor. Last, but not the least that the role of the investigating agency itself was perfunctory and not impartial. Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and not fair. While the accused persons accuse it for alleged false implication, the victims" relatives like Zahira allege its efforts to be merely to protect the accused. 3. The appeals are against judgment of the Gujarat High Court in Criminal Appeal No. 956 of 2003 upholding acquittal of respondents-accused by the trial Court. Along with said appeal, two other petitions namely Criminal Miscellaneous Application No. 10315 of 2003 and Criminal Revision No. 583 of 2003 were disposed of. The prayers made by the State for adducing additional evidence under Section 391 of the Code of Criminal Procedure, 1973 (in short the "Code"), and/or for directing retrial were rejected. Consequentially, prayer for examination of witnesses under Section 311 of the Code was also rejected. 4. In a nutshell the prosecution version which led to trial of the accused persons is as follows:

Between 8.30 p.m. of 1-3-2002 and 11.00 a.m. of 2.3.2002, a business concern known as ""Best Bakery"" at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye-witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye-witnesses. Accused persons were the perpetrators of the crime. After investigation charge sheet was filed in June 2002.
5. During trial the purported eye-witnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books. By judgment dated 27.6.2003, the trial Court directed acquittal of the accused persons. 6. Zahira appeared before National Human Rights. Commission (in short the "NHRC") stating that she was threatened by powerful politicians not to depose against the accused persons. On 7.8.2003 an appeal not up to the mark and neither in conformity with the required care, appears to have been filed by the State against the judgment of acquittal before the Gujarat High Court NHRC moved this Court and its Special leave petition has been treated as a petition under Article 32 of the Constitution of India, 1950 (in short the "Constitution"). Zahira and another organisation - Citizens for Justice and

Peace filed SLP (Crl.) No. 3770 of 2003 challenging judgment of acquittal passed by the trial Court. One Sahera Banu (sister of appellant-Zahira) filed the afore-noted Criminal Revision No. 583 of 2003 before the High Court questioning the legality of the judgment returning a verdict of acquittal. Appellant-State filed an application (Criminal Misc. Application No. 7677 of 2003) in terms of Sections 391 and 311 of the Code for permission to adduce additional evidence and for examination of certain persons as witness. Criminal Miscellaneous Application No. 9825 of 2003 was filed by the State to bring on record a document and to treat it as corroborative piece of evidence. By the impugned judgment the appeal, revision and the applications were dismissed and rejected. 7. The State and Zahira had requested for a fresh trial primarily on the following grounds:

When a large number of witnesses have turned hostile it should have raised a reasonable suspicion that the witnesses were being threatened or coerced. The public prosecutor did not take any step to protect the star witness who was to be examined on 17.5.2003 specially when four out of seven injured witnesses had on 9.5.2003 resiled from the statements made during investigation. Zahira Sheikh - the Star witness had specifically stated on affidavit about the threat given to her and the reason for her not coming out with the truth during her examination before Court on 17.5.2003.
8. The public prosecutor was not acting in a manner befitting the position held by him. He even did not request the Trial court for holding the trial in camera when a large number of witnesses were resiling from the statements made during investigation. 9. The trial court should have exercised power under Section 311 of the Code and recalled and reexamined witnesses as their evidence was essential to arrive at the truth and a just decision in the case. The power under Section 165 of the Indian Evidence Act, 1872 (in short the "Evidence Act") was not resorted to at all and that also had led to miscarriage of justice. 10. The public prosecutor did not examine the injured witnessed. Exhibit 36/68 was produced by the public prosecutor which is a statement of one Rahish Khan on the commencement of the prosecution case, though the prosecution was neither relying on it nor it was called upon by the accused, to be produced before the Court. The said statement was wrongly allowed to be exhibited and treated as FIR by the public prosecutor. 11. Statement of the eye-witness was recorded on 4.3.2002 by P1 Baria at SSA Hospital, Vadodara disclosing names of five accused persons and when he was sought to be examined before the Court summons were issued to this person on 27.4.2003 for examination on 9.5.2003. It could not be served on the ground that he had left for his native place in Uttar Pradesh. Therefore, fresh summons were issued on 9.6.2003 for recording his evidence on the next date i.e. on 16.6.2003, giving only one day time. When it could not be served for the same reasons. Ultimately, the public prosecutor gave purshis for dropping him as witness and surprisingly the same was granted by the Trial court. This goes to show that both the public prosecutor as well as the court were not only oblivious but also failed to discharge their duties. On important witness was not examined by the prosecutor on the ground that he, Sahejadkhan Hasankhan (PW-48) was of unsound mind. Though the witness was present, the public prosecutor dropped him on the ground that he was not mentally fit to depose. When such an application was made by the prosecution for dropping on the ground of mental deficiency it was the duty of the learned trial Judge to at least make some minimum efforts to find out as to whether he was actually of unsound mind or not, by getting him examined from the Civil Surgeon or a doctor from the Psychiatric Department. This witness (PW-48) has received serious injuries and the doctor Meena (PW-9) examined him. She has not stated in her evidence that he was mentally deficient. The police has also not reported that this witness was of unsound mind. During investigation also it was never stated that he was of unsound mind. His statement was recorded on 6.3.2002. 12. Sahejadkhan Hasankhan - the witness was unconscious between 2nd - 6th of March 2002. When he regained conscious, his statement was recorded on 6.3.2002. He gave names of four accused persons i.e. A-5, A-6, A-8 and A-11. This witness has also filed an affidavit before this Court in a pending matter narrating the whole incident. This clearly shows that the person was not of unsound mind as was manipulated by the prosecution to drop him. 13. In the case of one Shailun Hasankhan Pathan summons were issued on 9.6.2003 requiring his presence on 10.6.2003 which could not be served on him. He disclosed the names of three accused persons i.e. A-6, A-8 and A-11. This witness was also surprisingly treated to be of deficient mind without any material and even without taking any efforts to ascertain the truth or otherwise of such serious claims. 14. Similarly, one injured eye-witness Tufel Habibulla Sheikh was not examined, though he had disclosed the names of four accused i.e. A-5, A-6, A-8 and A-11. No summons was issued to this witness and he was not at all examined. 15. Another eye witness Yasminbanu who had disclosed the names of A-5, A-6 and A-11 was also not examined. No reason whatsoever was disclosed for non-examination of this witness. 16. The affidavit filed by different witnesses before this Court highlighted as to how and why they have been kept unfairly out of trial. Lalmohamad Khudsbax Shaikh (PW 15) was hurriedly examined on 27.5.2003 though summons was issued to him for remaining present on 6.6.2003. No reason has been indicated as to why he was examined before the date stipulated. 17. Strangely the relative of the accused were examined as witnesses for the prosecution obviously

with a view that their evidence could be used to help the accused persons. 18. According to the appellant-Zahira there was no fair trial and the entire effort during trial and at all relevant times before also was to see that the accused persons got acquitted. When investigating agency helps the accused, the witnesses are threatened to depose falsely and prosecutor acts in a manner as if he was defending the accused, and the Court was acting merely as an onlooker and there is no fair trial at all, justice becomes the victim. 19. According to Mr. Sibal, learned counsel appearing for the appellant Zahira, the High Court has not considered the stand taken by the appellant and the State of Gujarat in the proper perspective. Essentially, two contentions were raised by the State before the High Court, in addition to the application filed by the appellant-Zahira highlighting certain serious infirmities in the entire exercise undertaken. The State had made prayers for acceptance of certain evidence under Section 391 of the Code read with Section 311 of the Code. So far as the acceptance of additional evidence is concerned, the same related to affidavits filed by some injured witnesses who on account of circumstances indicated in the affidavits were forced not to tell the truth before the trial Court, making justice a casualty. The affidavits in essence also highlighted the atmosphere that prevailed in the trial Court. The affidavits in fact were not intended to be used as the evidence. A prayer was made that the witnesses who had filed affidavits before this Court should be examined, so that the truth can be brought on record. The High Court surprisingly accepted the extreme stand of learned counsel for the accused persons that under Section 386 of the Code the Court can only peruse the record of the case brought before it in terms of Section 385(2) of the Code and the appeal has to be decided on the basis of such record only and no other record can be entertained or taken into consideration while deciding the appeal. It was the stand of learned counsel for the accused before the High Court that by an indirect method certain materials were sought to be brought on record which should not be permitted. The High Court while belittling and glossing over the serious infirmities and pitfalls in the investigation as well as trial readily accepted the said stand and held that an attempt was being made to bring on record the affidavits by an indirect method, though they were not part of the record of the trial Court. It further held that no one including the State can be allowed to take advantage of its own wrong and thereby make capricious exercise of powers in favour of the prosecution to fill in the lacuna, overlooking completely the obligation cast on the Courts also to ensure that the truth should not become a casualty and substantial justice is not denied to victims as well. With reference to these conclusions it was submitted that the High Court did not keep in view the true scope and ambit of Section 391 as also the need or desirability to resort to Section 311 of the code and virtually rendered the provisions otiose by nullifying the very object behind those provisions. The conclusion that the appeal can be decided only on the basis of records brought before the High Court in terms of Section 385(2) would render Section 391 of the Code and other allied powers conferred upon Courts to render justice completely nugatory. 20. Further, after having held that the affidavits were not to be taken on records, the High Court has recorded findings regarding contents of those affidavits, and has held that the affidavits are not truthful and false. Unfortunately, the High Court has gone to the extent of saying that the appellantZahira has been used by some persons with oblique motives. The witnesses who filed affidavits have been termed to be of unsound mind, untruthful and capable of being manipulated, without any material or reasonable and concrete basis to support such conclusions. In any event, the logic applied by the High Court to discard the affidavits of Zahira and others that they have fallen subsequently into the hands of some who remained behind the curtain, can be equally applied to accept the pleas that accused or persons acting at their behest only had created fear on the earlier occasion before deposing in Court by threats, in the minds of Zahira and others. After having clearly concluded that the investigation was faulty and there were serious doubts about the genuineness of the investigation, it would have been proper for the High Court to accept the prayer made for additional evidence and/or re-trial. Abrupt conclusions drawn about false implication not only cannot stand the test of scrutiny but also lack judicious approach and objective consideration, as is expected of a Court. 21. Section 391 of the Code is intended to sub-serve the ends of justice by arriving at the truth and there is no question of filling of any lacuna in the case on hand. The provision though a discretionary one is hedged with the condition about the requirement to record reasons. All these aspects have been lost sight of and the judgment, therefore, is indefensible. It was submitted that this is a fit case where the prayer for retrial as a sequel to acceptance of additional evidence should be directed. Though, the re-trial is not the only result flowing from acceptance of additional evidence, in view of the peculiar circumstances of the case, the proper course would be to direct acceptance of additional evidence and in the fitness of things also order for a re-trial on the basis of the additional evidence. 22. It was submitted by the appellants that in view of the atmosphere in which the case was tried originally there should be a direction for a trial outside the State in case this Court thinks it so appropriate to direct, and evidence could be recorded by video conferencing so that a hostile atmosphere can be avoided. It is further submitted that the fresh investigation should be directed as investigation already conducted was not done in a fair manner and the prosecutor did not act fairly. If the State's machinery fails to protect citizen's life, liberties and property and the investigation is conducted in a manner to help the accused persons, it is but appropriate that this Court should step in to prevent undue miscarriage of justice that is perpetrated upon the victims and their family members. 23. Mr. Rohtagi, learned Additional Solicitor General appearing for the State of Gujarat in the appeal filed by it submitted that the application under consideration of the High Court was in terms of Section 311 and Section 391 of the Code. Though the nomenclature is really not material, the prayer was to permit the affidavits to be brought on record, admit and take additional evidence of the persons filing the affidavits by calling/re-calling them in addition to certain directions for re-trial if the

High Court felt it to be so necessary after considering the additional evidence. Though there was no challenge to Zahira's locus standi to file an appeal, it is submitted that prayer for re-hearing by another High Court and/or for trial outside the State cannot be countenanced and it is nobody's case that the Courts in Gujarat cannot do complete justice and such moves do not serve anybody's purpose. 24. There is no proper reason indicated by the High Court to refuse to take on record the affidavits and the only inferable reason as it appears i.e. that the affidavits were also filed in this Court in another proceeding is no reason in the eye of law. Admissibility of material is one thing and what is its worth is another thing and relates to acceptability of the evidence. Since they were relevant, being filed by alleged eye-witnesses, there was no basis for the High Court to discard them. Even if the appellant-Zahira has taken difference stands as concluded by the High Court, it was obligatory for the Court to find out as to what is the correct stand and real truth which could have been decided and examined by accepting the prayer for additional evidence. The High Court has, without any material or sufficient basis, come to hold that the FIR was manipulated, and the fax message referred to by the State could also have been manipulated. There is no basis for coming to such a conclusion. There was no material before the trial Court to conclude that the FIR was lodged by one Rahish Khan, though the statement of appellant-Zahira was anterior in point of time. The stand of the State was that it was relying on Zahira's version to be the FIR. The State had filed the application for acceptance of additional evidence as it was of the view that the FIR registered on the basis of Zahira's statement was an authentic one and no evidence aliunde was necessary. In the absence of even any material the abrupt conclusion about manipulation and the other conclusions of the High Court are perverse and also contradictory in the sense that after having said that affidavits were not to be brought on record it went on to label it as not truthful. The High Court should not have thrown out the application as well as the materials sought to be brought on record even at the threshold and yet gone on to surmise on reasons, at the same time, professing to decide on its correctness. 25. The stands taken before the High Court to justify acceptance of additional evidence and directions for retrial were re-iterated. 26. Mr. Sushil Kumar, learned senior counsel for the accused submitted that it is not correct to say that application under Section 391 of the Code was not admitted. It was in fact admitted and rejected on merits. It is also not correct to say that the investigation was perfunctory. The affidavits sought to be brought on record were considered on their own merits. While Zahira's prayer was for fresh investigation, the State's appeal in essence was for fresh trial. The four persons whose affidavits were pressed into service were PWs 1, 6, 47 and 48. They were examined as PWs and there was no new evidence. There can be no re-examination on the pretext used by the State for re-trial. The original appeal filed by the State was Appeal No.956 of 2003. There was first an amendment in September 2003,and finally in December 2003. The stand got changed from time to time. What essentially was urged or sought for, related to fresh trial on the ground that investigation was not fair. The stand taken by the State in its appeal is also contrary to evidence on record. Though one of the grounds seeking fresh trial was the alleged deficiencies of the public prosecutor in conducting the trial and for not bringing on record the contradictions with reference to the statements recorded during investigation, in fact it has been done. There was nothing wrong in treating statement of Rahish Khan as the FIR. The High Court has rightly concluded that Zahira's statement was manipulated as if she had given information at the first point of time which is belied by the fact that it reached the concerned Court after three days. The High Court after analysing the evidence has correctly come to the conclusion that the police manipulated in getting false witnesses to rope in wrong people as the accused. Irrelevant and out of context submissions are said to have been made, and grounds taken and reliefs sought for by Zahira in her appeal. 27. Mr. KTS Tulsi, learned senior counsel also appearing for the accused persons in the appeal filed by the State submitted that in Section 311 the key words are "if his evidence appears to it to be essential to the just decision of the case". Therefore, the Court must be satisfied that the additional evidence is necessary and it is not possible to arrive at a just conclusion on the basis of the records. For that purpose it has to apply its mind to the evidence already on record and thereafter decide whether it feels any additional evidence to be necessary. For that purpose, the Court has to come to a prima facie conclusion that an appeal cannot be decided on the basis of materials existing on record. Therefore, before dealing with an application under Section 391 the Court has to analyse the evidence already existing. Since the High Court in the instant case has analysed the evidence threadbare and come to the conclusion that the trial was fair and satisfactory and a positive conclusion has been arrived at after analysing the evidence, the question of pressing into service Section 391 of the Code does not arise. 28. In essence three points were urged by Mr. Tulsi. They are as follows:

For the purpose of exercise of power under Section 391 of the Code, the Court has to come to a conclusion about the necessity for additional evidence which only could be done after examining evidence on record. In other words the Court must arrive at a conclusion that the existing material is insufficient for the purpose of arriving at a just decision.
29. The High Court has undertaken an elaborate exercise for the purpose of arriving at the conclusion as to whether additional evidence was necessary after examining every relevant aspect. It has come to a definite conclusion that the trial of the case was fair, satisfactory and neither any illegalities were committed not any evidence was wrongly accepted or rejected. The extraneous factors have been kept out of consideration as these may have influenced the witnesses in changing their evidence and giving a go by to substantive evidence tendered in Court. A need for giving finality to trial in criminal proceedings is paramount as otherwise prejudice is caused to the accused persons and in fact it would be a negation of the fundamental rule of law to make the accused to undergo trial once over which

has the effect of derailing system of justice. Elaborating the points it is submitted that if the Court feels that additional evidence is not necessary after analysing the existing evidence and the nature of materials sought to be brought in, it cannot be said that the Court has acted in a manner contrary to law. In fact, the High Court has felt that extraneous materials are now sought to be introduced and it is not known as to whether the present statement of the witnesses is correct or what was stated before the trial Court originally was the truth. The Court analysed the evidence of the material witnesses and noticed several relevant factors to arrive at this conclusion. The necessity and need for additional evidence has to be determined in the context of the need for a just decision and it cannot be used for filling up a lacuna. Reference is made to the decisions of this Court in Jamatraj Kewalji Govani v. The State of MaharashtraMANU/SC/0063/1967 : 1968CriLJ231 and Mohanlal Shamji Soni v. Union of India and Anr. MANU/SC/0318/1991 .The High Court has also come to definite conclusion that the submissions of the State and the Sahera cannot be accepted because nonexamination of certain persons was on account of the circumstances indicated by the trial Court and that conclusion has been arrived at after analysing the factual background. There is no guarantee, as rightly observed by the High Court, that the subsequent affidavits are true. On the contrary, in the absence of any contemporary grievance having been made before the Court about any pressure or threat, the affidavits and the claims now sought to be made have been rightly discarded. 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court". Vice-Chancellor Knight Bruce said:

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to prevailing community standards." 32. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process:

"It is the merit of the common law that it decides the case first and determines the principle afterwards ... It is only after a series of determination on the same subject-matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."
33. The principle of fair trial now informs and energies many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. 34. As well presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane J put it:

"It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law".
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have

always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 37. While dealing with the claims for the transfer of a case under Section 406 of the Code from one State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani JethmalaniMANU/SC/0134/1978 : 1979CriLJ458 , emphasised the necessity to ensure fair trial, observing as hereunder:

"Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

A more serious ground which disputes us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to held detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J., observed : .... But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such

conditions. The cal detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done". (G X. Francis v. Banke Behari Singh, MANU/SC/0142/1957 : 1958CriLJ569 ). Accepting this perspective we must approach the facts of the present case without excitement, exaggeration or eclipse of a sense of proportion. It may be true that the petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against, leading to cries and catcalls of "jais" or "zinadabads". Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention when they appear in cities even in a court. And when unkempt crowds press into a court hall it is possible that some pushing, come nudging, some brash ogling or angry staring may occur in the rough and tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the peace inside the court has broken down, that calm inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for judge, parties, advocates and witnesses has creased to exist. None of the allegations made by the petitioner, read in the pragmatic light of the counter-averments of the respondent and understood realistically, makes the contention of the counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but is subsided, and it was a storm in the tea cup or transient tension to exaggerate which is unwarranted. The petitioner's case of great insecurity or molestation to the point of threat to life is, so far as the record bears out, difficult to accept. The mere word of an interested party is insufficient to convince us that she is in jeopardy or the court may not be able to conduct the case under conditions of detachment, neutrality or uninterrupted progress. We are disinclined to stampede ourselves into conceding a transfer of the case on this score, as things stand now. Nevertheless, we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a part's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned, against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. In depends. The frequency of mobbing manoeuvres in court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial.
38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. 39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial. 40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. 41. "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and

monetary considerations at the instance of those in power, their bench men and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and trifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression, and injustice resulting in complete breakdown and collapse of the efifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has definite role to play in protecting the witnesses to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. 42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect eh presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this courts have a vital role to play. 43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. 44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India MANU/SC/0318/1991 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, "any Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth. 45. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither

feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in. 46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case. 47. Section 391 of the Code is another salutary provision which clothes the Courts with the power of effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislature intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the 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. 50. In Rambhau and Anr. v. State of Maharashtra MANU/SC/0309/2001 : 2001CriLJ2343 it was held that the object of Section 391 is not to fill to lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons. 51. Need for circumspection was dealt with by this Court in Mohanlal Shamji Son's case (supra) and Ram Chander v. State of Haryana MANU/SC/0206/1981 : 1981CriLJ609 which dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in short the 'Old Code") and also in Jamatraj's case (supra). While dealing with Section 311 this Court in Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi MANU/SC/0397/1999 : 1999CriLJ3529 held as follows:

"It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not ""fill the lacuna in the prosecution case"". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

52. Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is the

proper procedure will depend on the facts and circumstances of each case for which no straight-jacket formula of universal and invariable application can be formulated. 53. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the court exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice. 54. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of Courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings. 55. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. 56. As pithily stated in Jennison v. Backer 1972 (1) All E.R. 1006. "The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope". Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies Courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Safar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr. MANU/SC/0677/2003 : 2003CriLJ4548 ). 57. This Court in Vineet Narain v. Union of India MANU/SC/0827/1998 : 1998CriLJ1208 has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to these of the Director of Prosecution in England. In the United Kingdom, the Director of Prosecution was created in 1879. His appointment is by the Attorney General from amongst the members of the Bar and he functions under the supervision of Attorney General. The Director of Prosecution plays, a vital role in the prosecution system. He even administers "Witness Protection Programmes"". Several countries for example Australia, Canada and USA have even enacted legislation in this regard. The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear for security. It would be a welcome step if something in those lies are done in our country. That would be a step in the right direction for a fair trial. Expression of concern merely in words without really the mind to concretise it by positive action would be not only useless but also amounts to betrayal of public confidence and trust imposed. 58. Though it was emphasised with great vehemence by Mr. Sushil Kumar and Mr. KTS Tulsi that the High Court dealt with the application under Section 391 of the Code in detail and not perfunctorily as contended by learned counsel for the appellants; we find that nowhere the High court has effectively dealt with the application under Section 391 as a part of the exercise to deal with and dispose of the appeal. In fact the High Court dealt with it practically in one paragraph, i.e. Paragraph 36 of the judgment accepting the stand of learned counsel for the accused that the consideration of the appeal has to be limited to the records sent up under Section 385(2) of the Code for disposal of the appeal under Section 386. This perception of the powers of the appellate Court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. Section 386 of the Code deals with the manner and disposal of the appeal in the normal or ordinary course. Section 391 is in the nature of exception to Section 386. As was observed in Rambhau's case (supra) if the stand (SIC) learned counsel for the accused as was accepted by the High Court is maintained, it would mean that Section 391 of the Code would be a dead letter in the statute book. The necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken up together. It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court consideration of the additional evidence can

upset the trial Court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. 59. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial Court was wrong. That decision has to be arrived at after assessing the evidence that was before the Trial Court and the additional evidence permitted to be adduced. The High Court has observed that question of accepting application for additional evidence will be dealt with separately, and in fact dealt with it in a cryptic manner practically in one paragraph and did not think it necessary to accept the additional evidence. But at the same time made threadbare analysis of the affidavits as if it had accepted it as additional evidence and was testing its acceptability. Even the conclusions arrived at with reference to those affidavits do not appear to be correct and seem to suffer from apparent judicial obstinacy and avowed determination to reject it. For example, to brand a person as not truthful because a different statement was given before the trial Court unmindful of the earliest statement given during investigation and the reasons urged for turning hostile before Court negates the legislative intent and purpose of incorporating Section 391 in the Code. The question of admission of evidence initially or as additional evidence under Section 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits. It is only after admission, the Court should consider in each case whether on account of earlier contradiction before Court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth. To reject it merely because of contradiction and that too in a sensitised case like the one before court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-orientated mission. In a given case when the Court is satisfied that for reasons on record the witness had not stated truthfully before the trial Court and was willing to speak the truth before it, the power under Section 391 of the Code is to be exercised. It is to be noted at this stage that it is not the prosecution which alone can file an application under Section 391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Section 391 of the Code has been enacted. Certain observations of the High court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some person belonging to the other community were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court. The conclusions of the High Court that 65 to 70 persons belonging to the attacked community were saved by the accused or others appears to be based on the evidence of the relatives of the accused who were surprisingly examined by prosecution. We shall deal with the propriety of examining such persons, infra. These aspects could have been, if at all permissible to be done, considered after accepting the prayer for additional evidence. It is not known as to what extent these irrelevant materials have influenced the ultimate judgment of the High Court, in coming with such a strong and special plea in favour of a prosecuting agency which has miserably failed to demonstrate any credibility by its course of action. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgment under challenge, in unreasonably keeping out relevant evidence from being brought on record. 60. Right from the beginning, the stand of the appellant-Zahira was that the investigating agency was trying to help the accused persons and so was the public prosecutor. If the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired sq far, it was an additional ground just and reasonable as well for accepting the additional evidence. 61. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. MANU/SC/0497/1995 : 1995CriLJ4173 ). 62. In Paras Yadav and Ors. v. State of Bihar MANU/SC/0009/1999 : 1999CriLJ1122 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of Courts getting at the truth by having recourse to Sections 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty. 63. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. MANU/SC/0302/1998 : 1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice in the hands of Courts. The view was again reiterated in Amar Singh v. Balwinder Singh and Ors. MANU/SC/0065/2003 : 2003CriLJ1282 . 64. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorized witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given

to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts - coram non judies and non est. There is, therefore, every justification to call for interference in these appeals. 65. In a country like us with heterogeneous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion taking lives of persons belonging to one or the other religion is bound to have dangerous repercussions and reactive effect on the society at large and may tend to encourage fissiparous elements to undermine the unity and security of the nation on account of internal disturbances. It strikes at the very root of an orderly society, which the founding fathers of our Constitution dreamt of. 66. When the ghastly killings take place in the land of Mahatma Gandhi it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When large number of people including innocent and helpless children and women are killed in a diabolic manner it brings disgrace to the entire society. Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy. 67. The little drops of humanness which jointly make humanity a cherished desire of mankind had seemingly dried up when the perpetrators of the crime had burnt alive helpless women and innocent children. Was it there fault that were born in the houses of persons belonging to a particular community? The still, said music of humanity had become silent when it was forsaken by those who were responsible for the killings.

"Little drops of Water, little grains of sand Make the mighty ocean And the pleasant land, Little deeds of kindness, Little words of love Help to make earth happy Like the heaven above" Said Julia A.F. Cabney in "Little Things".
68. If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appears to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State's approach in assailing the Trial Court's judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this Court expressed its unhappiness over the perfunctory manner in which the appeal was presented and challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trials should not be reduced to be the mock trials or shadow boxing or fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reason of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution. 69. Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day 'Neros' were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these "wanton boys". When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments. 70. In the background of principles underlying Section 311 and Section 391 of the Code and Section 165 of the Evidence Act it has to be seen as to whether the High Court's approach is correct and whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well. There are several infirmities which are tell tale even to the naked eye of even an ordinary common man. The High Court has come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. That was and should have been per se sufficient justification to direct a re-trial of the case. There was no reason for the High Court to come to the further conclusion of its own about false implication without concrete basis and that too merely on conjectures. On the other hand, the possibility of the investigating agency trying to shield the accused persons keeping in view the methodology adopted and outturn of events can equally be not ruled out. When the investigation is dishonest and faulty, it

cannot be only with the purpose of false implication. It may also be noted at this stage that the High Court has even gone to the extent of holding that the FIR was manipulated. There was no basis for such a presumptive remark or arbitrary conclusion. 71. The High Court has come to a conclusion that Zahira seems to have unfortunately for some reasons after the pronouncement of the judgment fallen into the hands of some who prefer to remain behind the curtain to come out with the affidavit alleging threat during trial. It has rejected the application for adducing additional evidence on the basis of the affidavit, but has found fault with the affidavit and hastened to conclude unjustifiably that they are far from truth by condemning those who were obviously victims. The question whether they were worthy of credence, and whether the subsequent stand of the witnesses was correct needed to be assessed, and adjudged judiciously on objective standards which are the hallmark of a judicial pronouncement. Such observations if at all could have been only made after accepting the prayer for additional evidence. The disclosed purpose in the State Government's prayer with reference to the affidavit was to bring to High Court's notice the situation which prevailed during trial and the reasons as to why the witnesses gave the version as noted by the Trial Court. Whether the witness had told the truth before the Trial Court or as stated in the affidavit, were matters for assessment of evidence when admitted and tendered and when the affidavit itself was not tendered as evidence, the question of analysing it to find fault was not the proper course to be adopted. The affidavits were filed to emphasise the need for permitting additional evidence to be taken and for being considered as the evidence itself. The High Court has also found that some persons were not present and, therefore, question of their statement being recorded by the police did not arise. For coming to this conclusion, the High Court noted that the statements under Section 161 of the Code were recorded in Gujarati language though the witnesses did not know Gujarati. The reasoning is erroneous for more reasons than one. there was no material before the High Court for coming to a finding that the persons did not know Gujarati since there may be a person who could converse fluently in a language though not a literate to read and write. Additionally, it is not a requirement in law that the statement under Section 161 of the Code has to be recorded in the language known to the person giving the statement. As a matter of fact, the person giving the statement is not required to sign the statement as is mandated in Section 162 of the Code. Subsection (1) of Section 161 of the Code provides that the competent police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Requirement is the examination by the concerned police officer. Sub-section (3) is relevant, and it requires the police officer to reduce into writing any statement made to him in the course of an examination under this Section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Statement made by a witness to the police officer during investigation may be reduced to writing. It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the Section is a truthful disclosure by the person who is examined. In the above circumstance the conclusion of the High Court holding that the persons were not percent is untenable. The reasons indicated by the High Court to justify non-examination of the eye-witnesses is also not sustainable. In respect of one it has been said that whereabouts of the witness may not be known. There is nothing on record to show that the efforts were made by the prosecution to produce the witness for tendering evidence and yet the net result was "untraceable". In other words, the evidence which should have been brought before the Court was not done with any meticulous care or seriousness. It is true that the prosecution is not bound to examine each and every person who has been named as witness. A person named as a witness may be given up when there is material to show that he has been gained over or that there is no likelihood of the witness speaking the truth in the Court. There was no such material brought to the notice of the Courts below to justify non-examination. The materials on record are totally silent on this aspect. Another aspect which has been lightly brushed aside by the High Court is that one person who was to be examined on a particular date was examined earlier than the date fixed. This unusual conduct by the prosecutor should have been seriously taken note of by the Trial Court and also by the High Court. It is to be noted that the High Court has found fault with DCP Shri Piyush Patel and has gone to the extent of saying that he has miserably failed to discharge his duties; while finding at the same time that police inspector Baria had acted fairly. The criticism according to us is uncalled for. Role of Public Prosecutor was also not in lien with what is expected of him. Though a Public Prosecutor is not supposed to be a persecutor, yet the minimum that was required to be done to fairly present the case of the prosecution was not done. Time and again, this Court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a department. In the instant case, this does not appear to have been done, and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability. In Shailendra Kumar v. State of Bihar and Ors. MANU/SC/0757/2001 : 2002CriLJ568 . It was observed as under:

"In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of vailable/non-vailable warrants as the case may be. It could be well understood that prosecution can not be frustrated by such methods and victims of the crime cannot be left in lurch."
72. A somewhat an unusual mode in contrast to the lapse committed by non-examining victims and

injured witnesses adopted by the investigating agency and the prosecutor was examination of six relatives of accused persons. They have expectedly given a clean chit to the accused and labeled them as saviors. This unusual procedure was highlighted before the High Court. But the same was not considered relevant as there is no legal bar. When we asked Mr. Rohtagi, learned counsel for the State of Gujarat as to whether this does not reflect badly on the conduct of investigating agency and the prosecutor, he submitted that this was done to show the manner in which the incident had happened. This is a strange answer. Witnesses are examined by prosecution to show primarily who is the accused. In this case it was nobody's stand that the incident did not take place. That the conduct of investigating agency and the prosecutor was not bona fide, is apparent and patent. 73. So far as non-examination of some injured relatives are concerned, the High Court has held that in the absence of any medical report, it appears that they were not present and, therefore, held that the prosecutor might have decided not to examine Yasminbanu because there was no injury. This is nothing but a wishful conclusion based on presumption. It is true that merely because the affidavit has been filed stating that the witnesses were threatened, as a matter of routine, additional evidence should not be permitted. But when the circumstances as in this case clearly indicate that there is some truth or prima facie substance in the grievance made, having regard to background of events as happened the appropriate course for the Courts would be to admit additional evidence for final adjudication so that the acceptability or otherwise or evidence tendered by way of additional evidence can be tested properly and legally tested in the context of probative value of the two versions. There cannot be straight-jacket formula or rule of universal application when alone it can be done and when, not. As the provisions under Section 391 of the Code are by way of an exception, the Court has to carefully consider the need for and desirability to accept additional evidence. We do not think it necessary to highlight all the infirmities in the judgment of the High Court or the approach of the Trial Court lest nothing credible or worth mentioning would remain in the process. This appears to be a case where the truth has become a casualty in the trial. We are satisfied that it is fit and proper case, in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation a re-trial is a must and essentially called for in order to save and preserve the justice delivery system unsullied and unscathed by vested interests. We should not be understood to have held that whenever additional evidence is accepted, re-trial is a necessary corollary. The case on hand is without parallel and comparison to any of the case where even such grievances were sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to prevent its recurrence. It is normally for the Appellate Court to decide whether the adjudication itself by taking into account the additional evidence would be proper or it would be appropriate to direct a fresh trial, though, on the facts of this case, the direction for re-trail becomes inevitable. 74. Prayer was made by learned counsel for the appellant that the trial should be conducted outside the State so that the unhealthy atmosphere which led to failure of miscarriage of justice is not repeated. This prayer has to be considered in the background and keeping in view the spirit of Section 406 of the Code. It is one of the salutary principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case or that general allegations of a surcharged atmosphere against a particular community alone does not suffice. The Court has to see whether the apprehension is reasonable or not. The state of mind of the person who entertains apprehension, no doubt is a relevant factor but not the only determinative or concluding factor. But the Court must be fully satisfied about the existence of such conditions which would render inevitably impossible the holding of a fair and impartial trial, uninfluenced by extraneous considerations that may ultimately undermine the confidence of reasonable and right thinking citizen, in the justice delivery system. The apprehension must appear to the Court to be a reasonable one. This position has been highlighted in Gurcharan Das Chadha v. MANU/SC/0093/1966 : State of Rajasthan 1966CriLJ1071 , and K. Ambazhagan v. MANU/SC/0930/2003 : The Superintendent of Police and Ors. etc., 2004CriLJ583 . 75. Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congeal and conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of Competent jurisdiction. 76. We direct the State Government to appoint another Public Prosecutor and it shall be open to the affected persons to suggest any name which may also be taken into account in the decision to so appoint. Though the witnesses or the victims do not have any choice in the normal course to have a say in the matter of appointment of a Public Prosecutor, in view of the unusual factors noticed in this case, to accord such liberties to the complainants party, would be appropriate. 77. The fees and all other expenses of the public prosecutor who shall be entitled to assistance of one lawyer of his choice shall initially be paid by the State of Maharashtra who will thereafter be entitled to get the same reimbursed from the State of Gujarat. The State of Gujarat shall ensure that all the documents and records are forthwith transferred to the Court nominated by the Chief Justice of the Bombay High Court. The State of Gujarat shall also ensure that the witnesses are produced before the concerned Court whenever they are required to attend that Court Necessary protection shall be afforded to them so that they can depose freely without any apprehension of threat or coercion from any person. Incase, any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat. All expenses necessary for the trial shall be initially borne by the State of Maharashtra, to be reimbursed by the State of Gujarat. 78. Since we have directed re-trial it would be desirable to the investigating agency or those

supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor reinvestigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant. 79. Sub-section (8) of Section 173 of the Code permits further investigation and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. 80. Before we part with the case it would be appropriate to note some disturbing factors. The High Court after hearing the appeal directed its dismissal on 26.12.2003 indicating in the order that the reasons were to be subsequently given, because the Court was closing for winter holidays. This course was adopted "due to paucity of time". We see no perceivable reason for the hurry. The accused were not in custody. Even if they were in custody, the course adopted was not permissible. This Court has in several cases deprecated the practice adopted by the High Court in the present case. 81. About two decades back this Court in State of Punjab MANU/SC/0159/1983 : 1984CriLJ177 had inter alia observed as follows: v. Jagdev Singh Talwandi

"We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment."
82. It may be thought that such orders are passed by this Court and, therefore, there is no reason why the High Courts should not do the same. We would like to point out that the orders passed by this Court are final and no further appeal lies against them. The Supreme Court is the final Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations so that a practice which is not a very desirable one and which achieves no useful purpose may not grow out of and beyond its present infancy. What is still more baffling is that written arguments of the State were filed on 29.12.2003 and by the accused persons on 1.1.2004. A grievance is made that when the petitioner in Criminal Revision No. 583 of 2003 wanted to file notes of arguments that were not accepted making a departure from the cases of the State and the accused. If the written argument were to be on record, it is not known as to why the High Court dismissed the appeal. If it had already arrived at a particular view there was no question of filing written arguments. 83. The High Court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted reference to personalities and their legitimate moves before competent courts - the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters. Irresponsible allegations, suggestions and challenges may be made by parties, though not permissible or pursued defiantly during course of arguments at times with the blessings or veiled support of the Presiding Officers of Court. But, such besmirching tats, meant as innuendos or serve as surrogacy ought not to be made or allowed to be made, to become part of solemn judgments, of at any rate by High Courts, which are created as Court of record as well. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy. The High Court also made some observations and remarks about persons/constitutional bodies like NHRC who were not before it. We had an occasion to deal with this aspect to certain extent in the appeal relating to SLP (CrL.) Nos. 530-532/2004. The move adopted and manner of references made, in para No. 3 of the judgment except the last limb (subpara) is not in good taste or decorous. It may be noted that certain reference is made therein or grievances purportedly made before the High Court about role of NHRC. When we asked Mr. Sushil Kumar who purportedly made the submissions before the High Court, during the course of hearing, he stated that he had not made any such submission as reflected in the judgment. This is certainly intriguing. Proceedings of the court normally reflect the true state of affairs. Even if it is accepted that any such submission was made, it was not proper or necessary for the High Court to refer to them in the judgment, to finally state that no serious note was taken of the submissions. Avoidance of such manoeuvres would have augured well with the judicial discipline. We order the expunging and deletion of the contents of para 3 of the judgment except the last limb of the sub-para therein and it shall be always read to have not formed part of the judgment. 84. A plea which was emphasised by Mr. Tulsi relates to the desirability of restraint in publication/exhibition of details relating to sensitive cases, more particularly description of alleged accused persons in the print/electronic/broadcast medias. According to him, "media trial" causes indelible prejudice to the accused persons. This is sensitive and complex issue, which we do not think it proper to deal in detail in these appeals. The same may be left open for an appropriate case where the media is also duly and effectively represented.

85. If the accused persons were not on bail at the time of conclusion of the trial, they shall go back to custody, if on the other hand they were on bail that order shall continue unless modified by the concerned Court. Since we are directing a re-trial, it would be appropriate if same is taken up on dayto-day basis keeping in view the mandate of Section 309 of the Code and completed by the end of December 2004. 86. The appeals are allowed on the terms and to the extent indicated above. Manupatra Information Solutions Pvt. Ltd.
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MANU/KE/0283/1989 Equivalent Citation: 1990CriLJ1800, ILR1989(2)Kerala330 IN THE HIGH COURT OF KERALA Criminal Revn. Petn. No. 79 of 1987 Decided On: 02.02.1989 Appellants: Lakshmanan Sundaram Vs. Respondent: State of Kerala Hon'ble U.L. Bhat and T.V. Ramakrishnan, JJ. Counsels: For Appellant/Petitioner/Plaintiff: N.N. Narayana Pillai, Adv. For Respondents/Defendant: Chincy Gopakumar, Public Prosecutor Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 279, Indian Penal Code (IPC) - Section 302, Indian Penal Code (IPC) - Section 303, Indian Penal Code (IPC) - Section 304A, Indian Penal Code (IPC) - Section 323, Indian Penal Code (IPC) - Section 324, Indian Penal Code (IPC) Section 325, Indian Penal Code (IPC) - Section 341, Indian Penal Code (IPC) - Section 406, Indian Penal Code (IPC) - Section 420, Indian Penal Code (IPC) - Section 447, Indian Penal Code (IPC) Section 465, Indian Penal Code (IPC) - Section 466, Indian Penal Code (IPC) - Section 467, Indian Penal Code (IPC) - Section 471; Code of Criminal Procedure, 1973 (CrPC) - Section 2, Code of Criminal Procedure, 1973 (CrPC) - Section 311, Code of Criminal Procedure, 1973 (CrPC) - Section 313, Code of Criminal Procedure, 1973 (CrPC) - Section 386, Code of Criminal Procedure, 1973 (CrPC) - Section 391, Code of Criminal Procedure, 1973 (CrPC) - Section 396,Code of Criminal Procedure, 1973 (CrPC) - Section 423, Code of Criminal Procedure, 1973 (CrPC) - Section 423(1), Code of Criminal Procedure, 1973 (CrPC) - Section 482; Code of Criminal Procedure, 1898 (CrPC) - Section 342, Code of Criminal Procedure, 1898 (CrPC) - Section 423, Code of Criminal Procedure, 1898 (CrPC) - Section 428, Code of Criminal Procedure, 1898 (CrPC) - Section 428(1); Motor Vechicle Act ;Bombay Prohibition Act - Section 66; Provident Funds Act - Section 13(2) Cases Referred: Chinnaswamy v. State of A.P., AIR 1962 SC 1788, 1963 (1) Cri LJ 8; Abinash Chandra Bose v. Bimal Krishna Sen, AIR 1963 SC 316, 1963 (1) Cri LJ 261; Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531, 1963 (2) Cri LJ 418; Govindan v. Food Inspector, 1982 Ker LT 27, 1982 Cri LJ 784; Kesavan Nair v. State of Kerala, 1979 Ker LT 635; Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887, 1965 (2) Cri LJ 817; Matukdhari Singh v. Janardan, AIR 1966 SC 356, 1966 Cri LJ 307; Mariyam v. State of Kerala, 1961 Ker LT 33; Motan Khan v. Emperor, AIR 1927 Sind 175, 1927 (28) Cri LJ 417; Virumal Seoomal v. Emperor, AIR 1941 Sind 144, 1941 (42) Cri LJ 837; Emperor v. Nathu Kasturchand Marwadi, ILR 50 Bom 42, AIR 1925 Bom 170, 1925 (26) Cri LJ 690; Dibakanta Chatterjee v. Gour Gopal Mukherjee, ILR 50 Cal 939, AIR 1923 Cal 727, 1924 (25) Cri LJ 27; Ramchandra Prasad v. Emperor, AIR 1937 Pat 246, 1937 (38) Cri LJ 657; Gajanand Thakur v. Emperor, AIR 1916 Pat 219, 1916 (17) Cri LJ 332; Dara Singh v. The State, AIR 1952 Punj 214, 1952 Cri LJ 998; Nirmal Prasad Barua v. The State, AIR 1952 Assam 2, 1952 Cri LJ 110;Pannalal Kedia v. Nebi Singh, 1968 Cri LJ 1524; Jamuna Singh v. State of Bihar, 1975 Cri LJ 862; Kunjan Sivan v. State of Kerala, 1969 Ker LT 602; Kittunni Subramonian v. Kunhumon, 1973 Ker LT 371, 1974 Cri LJ 548; Rajendran Nair v. State of Kerala, 1978 Ker LT 625; Mahendra Pratap Singh's case, AIR 1968 SC 707, 1968 Cri LJ 865 Citing Discussed Reference: Judges/Coram:

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Mentioned 10

Disposition: Petition dismissed *Case Note: Code of Criminal Procedure, 1973 (Central Act 2 of 1974) - Sections 391 and 386-Appellate Court, if it thinks additional evidence necessary, shall record its reasons and either take such evidence itself or direct it to be taken by a Magistrate--Section 386 empowers the appellate court to set aside the conviction and remand the case for taking evidence omitted to be taken and dispose of the case according to law--Distinction between Sections 386 and 391. The Revision-Petitioner was convicted by the trial court for offences under Sections 304 and, 279 I.P.C. and sentenced to pay a fine of Rs. 500. The Sessions Judge in appeal set aside the conviction and sentence and remanded the case for completion of the trial after summoning charge witnesses who were not examined and for disposal according to law. Thereafter the remaining charge witnesses were summoned and two of them were examined. The trial court convicted the Revision Petitioner under Section 304A and 274 I.P.C. and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000. The appeal challenging the conviction and sentence was dismissed. The revision is filed by the accused. Dismissing the revision petition; Held: - Section 391 confers on the appellate court a special and peculiar kind of power. Under this provision, in dealing with any, appeal under Chapter XXIX (whether it be an appeal against acquittal or conviction) appellate court if it thinks additional evidence necessary, shall record its reasons and either take such evidence itself or direct it-to be taken by a Magistrate. When the appellate court is the High Court evidence can be taken by court of Session or Magistrate. Thereupon the Magistrate shall take additional evidence and certify such evidence to the appellate court and the appellate court shall thereupon proceed to dispose of the appeal. In issuing a direction under Section 391 to the Magistrate to record additional evidence, appellate court does not set aside the judgment of the trial court, does not dispose of the appeal and does not remand the case. Appeal shall be retained on the file of appellate court when additional evidence is called for and thereafter the original. evidence and additional evidence is to be considered and the appeal disposed of. No further inquiry or retrial or reheating by the trial court is contemplated. The fact that Section 386(b) of the Code does not specifically empower the appellate court to direct further inquiry to be made cannot lead to the inference that the appellate court cannot order a limited retrial. The power to direct the accused to be retried has been conferred on the Appellate court not only when it deals with an appeal against acquittal but also when it deals with an appeal against conviction. There may be cases where even though the trial court did not commit any material irregularity or illegality, appellate court comes to the conclusion for proper reasons that either on account of collusion or otherwise evidence available was not placed before court and that such evidence is necessary for a proper disposal of the case or in public interest. One way of ensuring it is to have recourse to Section 391 of the Code; but that may not always b; convenient or practicable. In such cases recourse may be had to the provisions in Section 386 of the Code enabling retrial and retrial may be ordered from a particular stage. When, additional evidence by way of examination of witnesses for prosecution is ordered under Section 391 of the Code that may necessitate further questioning by the court of the accused under Section 313 of the Code and thereupon the accused may have to get an opportunity to adduce evidence. It may not always be practicable or convenient for the appellate court to go through this entire exercise. In appropriate cases it must be open to the appellate court to order retrial from a particular stage. There is nothing in the decisions of the Supreme Court or in the provisions of the Code to warrant the view that retrial necessarily means de novo trial. Even when partial retrial is held that amounts the accused being tried again. Retrial could also mean continuation or completion of the original trial. Such retrial can be ordered under Section 386 of the Code. JUDGMENT U.L. Bhat, J. 1. The revision petitioner was originally convicted by the trial Court for offence under Sections 304A and 279, I.P.C. and sentenced to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for three months under the former count. No separate sentence was imposed under the latter count. The Sessions Judge in Crl. Appeal No. 72 of 1983 set aside the conviction and sentence and remanded the case for completion of the trial after summoning charge witnesses who were not examined and for disposal according to law. Thereafter the remaining charge witnesses were summoned and two of them who were available were examined as P.Ws. 10 and 11. The trial Court convicted the revision petitioner under Sections 304A and 279, I.P.C. and sentenced him to undergo

rigorous imprisonment for six months and to pay fine of Rs. 1000/- and in default to undergo rigorous imprisonment for three months more under the former count. No separate sentence was imposed under the latter count. Criminal Appeal No. 91 of 1986 challenging the conviction and sentence was dismissed. Thereupon the accused filed the present revision petition. 2. The learned single Judge who heard the revision petition referred it to a Division Bench. It was argued before the learned single Judge that the earlier remand of the case was illegal in the light of the decisions of this Court in Kesavan Nair v. State of Kerala 1979 K LT 635 and Govindan v. Food Inspector MANU/KE/0167/1981). We have heard learned Counsel for the revision petitioner and the learned Additional Public Prosecutor. 3. Some of the material facts in the case are either undisputed or satisfactorily proved. On 24-5-1981 at about 5.00p.m. deceased Ravikumaran Nair, an employee of the Kerala State Electricity Board, was driving a car, K.R.V. 5037 belonging to the Board along the Alleppey-Ernakulam National Highway from south to north. When it reached near Kunnathu Financial Corporation building at Kurukkanchantha, lorry, T.D.S. 1069, driven by the revision petitioner came from north to south. The lorry crashed into the front right side of the car and Ravikumaran Nair sustained fatal injuries. He was taken in another car to Government Hospital, Shertallai and thereafter to Medical College Hospital, Alleppey. He was dead by 6.30p.m. P.W.1, Chief Engineer of the Electricity Board was a passenger in the car. P.W. 4 went to Kuthiathodu Police Station and gave Ext. P2 information on the basis of which case was registered against the driver of the lorry. P.W. 8, C.I. of Police, investigated the case. P.W. 9, S.I. of Police, held inquest over the body and prepared Ext. P7 inquest report. Post-mortem was conducted by P.W. 6. P.W. 5, Motor Vehicle Inspector, inspected both the vehicles and submitted Exts. P3 and P4 reports. On the same day P.W. 9 reported that the driver of the lorry was the revision petitioner and report was accordingly submitted to Court. On the same day revision petitioner was arrested and released on bond. Lorry was also released to the owner. After completing investigation charge was laid. 4. Though a large number of witnesses were cited by the prosecution, originally only P.Ws. 1 to 9 were examined and relying on their evidence revision petitioner was convicted. After remand though steps were taken to summon the remaining charge witnesses, only two were available and they were examined as P.Ws. 10 and 11. P.W. 10 is the Village Officer who prepared plan of the scene of occurrence and since the plan was not found among the records he was given up. P.W. 11 is the police constable who was in charge of the dead body. 5. On the facts learned Counsel for the revision petitioner contended that the evidence regarding post-mortem conducted by P.W. 6 would show that it was conducted not on the body of Ravikumaran Nair, driver of the car, but on the body of Ramakrishnan Nair, that prosecution failed to prove that rashness or negligence on the part of the revision petitioner was responsible for the accident and that the evidence is uncertain regarding the exact scene of occurrence. 6. Ext. P5 is the post-mortem certificate issued by P.W. 6. It mentions that postmortem was conducted of a male body named Ramakrishnan Nair. The name of the deceased is Ravikumaran Nair. However, Exhibit P5 itself indicates that the body was of the person involved in Crime No. 100/81 of Kuthiathodu Police Station, which is the crime case leading to this case. The certificate also shows that the body was identified and handed over by P.C. 2692 of Kuthiathodu Police Station. Inquest report refers to the body as that of Ravikumaran Nair and it shows that the body had been handed over to P.C. 2692 of Kuthiathodu Police Station. The evidence of P.W. 9 shows that he held inquest over the body of Ravikumaran Nair in the Alleppey Hospital and prepared Ext. P7 inquest report. P.W. 11 is P.C. 2692 of Kuthiathodu Police Station. He deposed that he handed over the body of Ravikumaran Nair to the Doctor for post-mortem and after post-mortem he was responsible for handing over the body to the relatives. In these circumstances the finding of the appellate Judge that post-mortem was conducted of the body of Ravikumaran Nair involved in the case and mention of Ramakrishnan Nair by the Doctor was a mistake appears to be correct. 7. We have been taken through the averments in the scene Mahazar and the oral evidence in the case. We find no material or irreconcilable discrepancy regarding the location in the scene mahazar. P.Ws. 1, 4 and 7 were examined as eye-witnesses. Of them P.W. 7 turned hostile. P.W. 1, Chief Engineer of the Board, was a passenger in the car. He clearly deposed that the lorry came at an excessively high speed and just before the occurrence it suddenly swerved to west, that is on the correct side of the car and wrong side of the lorry, and crashed into the car. P. W. 4 was taking tea in a nearby shop. He saw the lorry coming and crashing into the car. He rushed to the scene and gave soda water to the driver of the car. He also joined in taking the injured first to Government Hospital, Shertallai and then to Medical College Hospital, Alleppey. It was he who gave first information to the police. He identified the revision petitioner as the driver of the lorry and said that the lorry came at speed, that is high speed. The other circumstances of the case would indicate that the impact took place on the western side of the road, which was the wrong side for the lorry and correct side for the car. Width of the tarred portion of the scene is 7.59 metres and the road lies straight. Place of incident was at a point 2.73 metres from the western extremity of the tarred road and the distance from the eastern end of the tarred road was 4.86 metres. It is clear that the impact took place when the car was on the western side of the road, which as we have already mentioned was the correct side for the car and the wrong side for the lorry. In these circumstances the two Courts below were justified in holding that the lorry came at an excessive speed and suddenly swerved westwards and crashed into the car. Condition of brakes in the lorry was seen to be alright going by the evidence of P.W. 5. There was no mechanical defect in the lorry. On the dead body were seen abrasion and

lacerated wound on the right forearm, abraded contusion on the right shoulder and left leg, contusion on the right forehead and right side of neck, rupture of liver (peritoneal cavity contained blood) and fracture of fourth, fifth and sixth ribs on the right side. Right side lung had collapsed. The nature of the injuries would clearly indicate that they could have been sustained in the course of such a collision. Therefore the findings of the Courts below that lorry driven by the revision petitioner crashed into the car driven by Ravikumaran Nair on account of rash driving of the lorry by the revision petitioner and as a result of the impact Ravikumaran Nair sustained fatal injuries are justified. 8. The main contention urged by the learned Counsel for the revision petitioner is that the earlier remand ordered by the Sessions Court in appeal against the first conviction was illegal and therefore the conviction, and sentence cannot stand. According to learned Counsel, a remand can be made only for the purpose of fresh or de novo trial and cannot be made for the purpose of continuance or completion of trial to enable the prosecution or the defence to adduce additional evidence and that if additional evidence was thought necessary, recourse could be had only to Section 391 of the Code of Criminal Procedure. In other words, the contention is that remand for continuance of trial or further trial is not contemplated by Section 386 of the Code of Criminal Procedure. This contention is rebutted by the learned Prosecutor. 9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with appeals. Section 386 deals with powers of the appellate Court. The appellate Court may of course dismiss the appeal if there is no sufficient ground for interfering. In an appeal from an order of acquittal, according to Clause (a), the appellate Court may "reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law". In an appeal from conviction, under Clause (b), the appellate Court may --

"(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial; or (ii) alter the finding, maintaining the sentence; or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."
We may now compare these provisions with the provisions of the Code of Criminal Procedure, 1898. Chapter XXXI of the 1898 Code dealt with appeals. Section 423 of that Code dealt with powers of appellate Court in disposing of the appeals. We find that Clause (a) of Section 423 is identical with Section 386(a) of the 1973 Code and Clause (b) of Section 423 of the 1898 Code is identical with Clause (b) of Section 386 of the 1973 Code except that in the latter there has been a rearrangement. 10. Section 391 of the 1973 Code deals with the power of the appellate Court to take further evidence or direct it to be taken. Sub-section (1) states that:

"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."
Sub-section (2) states that:

"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."
We find that the provisions in Section 428 of the 1898 Code are identical to the above provisions. 11. Learned Counsel for the revision petitioner placed reliance on the decisions of the Supreme Court in Chinnaswamy v. State of A. P., MANU/SC/0133/1962 : AIR 1962 SC 1788 : (1963 (1) Cri LJ 8); Abinash Chandra Bose v. Bimal Krishna Sen MANU/GJ/0087/1963; Ukha Kolhe v. State of Maharashtra MANU/SC/0059/1963) and the decisions of learned single Judges of this Court in Govindan v. Food Inspector MANU/KE/0167/1981); Rajendran Nair v. State of Kerala 1978 K LT 625 and Kesavan Nair v. State of Kerala 1979 K LT 635. Reference is also made to the decisions of the Supreme Court in Rajeswar Prasad Misra v. State of West Bengal MANU/SC/0080/1965) and Matukdhari Singh v. Janardan MANU/SC/0084/1965 : AIR 1966 SC 356 : (1966 Cri LJ 307), in regard to the power of appellate Court in the matter of remand. 12. In Chinnaswamy's case MANU/SC/0133/1962 : AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), the accused had been convicted by the trial Court. Sessions Court took the view that an important piece of evidence held against the accused was inadmissible and acquitted him. The High Court in revision by the de facto complainant held that the evidence held to be inadmissible by the Sessions Court was admissible, set aside the acquittal and directed the accused to be retried on the same charges. The Supreme Court agreed with the High Court that the acquittal deserved to be set aside. Supreme

Court considered what should be the consequential directions to be issued. If the acquittal is by the trial Court and the acquittal is interfered with in revision the case has to be sent back to the trial Court for retrial. If the acquittal is by the appellate Court in reversal of conviction by the trial Court, two courses are open before the revisional Court. The appellate Court could be directed to rehear the appeal after treating the evidence as admissible; or retrial could also be ordered. The course to be adopted depends on the facts and circumstances of each case. Where, as in that case, the earlier evidence is on record the proper course is to send back the appeal for rehearing to the appellate Court. The Court also held that acquittal could be set aside in revision at the instance of a private party only in exceptional cases and proceeded to mention a few instances of such kind. The Court did not consider whether a limited retrial is or is not permissible. 13. In Abinash Chandra Bose's case MANU/GJ/0087/1963), accused had been acquitted and the High Court in appeal ordered retrial granting opportunity to the complainant to adduce evidence of the handwriting expert to speak to the genuineness of the disputed document. The Supreme Court observed that the power of ordering retrial under Section 423 is to be exercised only in exceptional cases. The accused should not be placed on trial for the same offence more than once except in very exceptional circumstances. 14. In Ukha Kolhe's case MANU/SC/0059/1963), accused was acquitted of the charge under the provisions of the M.V. Act and convicted under Section 66(b) of the Bombay Prohibition Act. In appeal the Sessions Court set aside the conviction and ordered retrial on the ground that there had not been fair and full trial. Revision before the High Court was dismissed. The Supreme Court set aside the order of the trial Court and directed the Sessions Judge to dispose of the appeal according to law giving an opportunity to the prosecution to lead evidence on matters indicated in the judgment. The Sessions Judge was directed to take additional evidence by himself or through the trial Court and the accused was directed to be examined under Section 342 of the Code of Criminal Procedure and to be given an opportunity to adduce evidence. In paragraph 11 of the majority judgment it was observed that:

"An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
In paragraph 12 it was observed that:

"If additional evidence was thought necessary recourse can be had to Section 428(1) of the 1898 Code though it cannot be done to fill up the lacuna."
From the judgment it can be seen that in the above case what the Sessions Court ordered was a complete retrial, that is, a fresh trial and that alone came up for consideration before the Supreme Court. There was no occasion in the above decision to consider whether retrial should necessarily be a fresh trial or de novo trial or could also be continuance of trial already conducted. 15. In Rajeswar Prasad Misra's case MANU/SC/0080/1965), the accused was acquitted by the trial Court. In appeal against acquittal High Court ordered production of documents and taking additional oral evidence to prove the documents evidently under Section 428 of the 1898 Code. After receiving the evidence the appeal was reheard and the accused convicted. The Supreme Court confirmed the judgment of the High Court, after referring to the earlier decisions of the Supreme Court referred to above. The Court cautioned against the tendency to read observations of the Court as statutory enactments. Dealing with the circumstances mentioned by the Supreme Court in the earlier decisions as exceptional and justifying order of retrial on receipt of additional evidence the Court observed that the enumeration made was not exhaustive and it is easy to contemplate other circumstances where retrial may be necessary. The Supreme Court also indicated that additional evidence may be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. In this decision also the Court had no occasion to consider the scope of retrial which could be ordered. 16. In Matukdhari Singh's case MANU/SC/0084/1965 : AIR 1966 SC 356 : (1966 Cri LJ 307), accused was tried for offences under Sections 420, 466, 406 and 465/471, I.P.C. and acquitted. The trial Court did not frame charge under Section 467, I.P.C. regarding which there were prima facie materials available, that is an offence triable exclusively by Sessions Court. The High Court, in appeal, set aside the acquittal and ordered retrial. The Supreme Court dismissed the appeal preferred before it. The Court referred to earlier decisions in Abinash Chandra Bose's case (1963 (1) Cri LJ 261); Ukha Kolhe's case (1963 (2) Cri LJ 418) and Rajeshwar Prasad Misra's case MANU/SC/0080/1965), with reference to the facts of those cases and emphasised the wide discretion available with the appellate Court in ordering retrial. 17. The earliest decision of this Court in which the same question arose for consideration was the one in Mariyam v. State of Kerala 1961 K LT 33. In that case, conviction and sentence entered by the trial Court were set aside by the appellate Court which further directed retrial from the stage at which the defective procedure had been adopted by the trial Court, defective procedure being absence of personal questioning of the accused under Section 342 of the 1898 Code and accused not being given

an opportunity to adduce evidence. Govinda Menon, J. took the view that the provision in Section 423(1)(b) of that Code enabling the appropriate Court to "order him to be retried by a Court of competent jurisdiction.... "is sufficiently wide to authorise retrial from the point at which the error or illegality in the trial has been committed. His Lordship sought support for this decision from the decisions in Motan Khan v. Emperor AIR 1927 Sind 175 : (1927 Cri LJ 417); Virumal Seoomal v. Emperor AIR 1941 Sind 144 : (1941 Cri LJ 837); Emperor v. Nathu Kasturchand Marwadi ILR Bom 42 equivalent to MANU/MH/0177/1924 : AIR 1925 Bom 170 : (1925 (26) Cri LJ 690); and Dibakanta Chatterjee v. Gour Gopal Mukherjee ILR Cal 939 : MANU/WB/0498/1923 : AIR 1923 Cal 727 : (1924 (25) Cri LJ 27). The learned Judge dissented from the contrary view taken by the Patna High Court in Ramchandra Prasad v. Emperor MANU/BH/0256/1936 : AIR 1937 Pat 246 : (1937 (38) Cri LJ 657) and Gajanand Thakur v. Emperor AIR 1916 Pat 219 : 1916 Cri LJ 332. We find that a similar view had been taken by a Full Bench of the Punjab High Court in Dara Singh v. The State MANU/PH/0087/1952) and the Assam High Court in Nirmal Prasad Barua v. The State MANU/GH/0118/1951) and a single Judge of the Patna High Court in Pannalal Kedia v. Nebi Singh MANU/BH/0219/1967. These decisions hold that retrial does not necessarily mean fresh trial and when retrial is ordered it does not mean there is to be a de novo trial from the very beginning and it depends on the facts and circumstances of the case as from what stage retrial could be ordered to be conducted. We also find that another learned single Judge of the Patna High Court in Jamuna Singh v. State of Bihar MANU/BH/0161/1974, took a contrary view. 18. The next decision of this Court which may be considered is the one in Kunjan Sivan v. State of Kerala 1969 K LT 602. The trial Court convicted the first accused under Section 325, I.P.C., second accused under Section 303, I.P.C. and third accused under Section 323, I.P.C., though all of them had been charged with offence under Section 302, I.P.C. read with Section 34, I.P.C. Second accused filed appeal before the High Court. High Court issued notice to accused 1 and 3 to show cause why their acquittal for the offence under Section 302, I.P.C. should not be set aside and retrial ordered. There was disagreement between the two learned Judges of the Division Bench who heard the case. Mathew, J. (as he then was) proposed to set aside the conviction entered against the third accused and instead convict the accused under Section 323 read with Section 34, I.P.C. Issac, J. proposed to set aside the conviction and also the acquittal under Section 302, I.P.C. read with Section 34, I.P.C. and to remand the case to the trial Court to consider the evidence afresh and dispose of the case according to law. Mathew, J. felt that the competency of the appellate Court to issue such a direction is not free from doubt on the ground that retrial contemplated is only a de novo trial. The case was referred to a third Judge, Raghavan, J. (as he then was). The learned Judge agreed with the view taken by Isaac, J. that Chinnaswamy's case MANU/SC/0133/1962 : AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), is an authority for the position that trial Court can be directed to rehear the case on the evidence already on record. There may be cases where the trial Court had wrongly referred to consider one piece of evidence which it had recorded and the appellate Court considers that the case should be reheard after taking that piece of evidence as well into consideration. It may be that the reasoning or the approach of the trial Court is so palpably erroneous that a rehearing is essential without any new evidence. However, on the merits the learned Judge agreed with the view taken by Mathew, J. and the case was disposed of accordingly. 19. In Kittunni Subramonian v. Kunhumon MANU/KE/0190/1973), Narayana Pillai, J. followed the earlier decision in Mariyam's case 1961 K LT 33. It was a case where trial Court acquitted the accused charged for offences under Sections 447, 341 and 324, I.P.C. read with Section 34, I.P.C. The High Court in revision took the view that the trial Court had not discussed the evidence in regard to offence under Section 447, I.P.C. and set aside the acquittal and remanded the case to the trial Court for rehearing the case on the evidence already on record. The learned Judge in the course of the judgment adverted to Chinnaswamy's case MANU/SC/0133/1962 : AIR 1962 SC 1788 : (1963 (1) Cri LJ 8); Mahendra Pratap Singh's case MANU/SC/0398/1967 : AIR 1968 SC 707 : (1968 Cri LJ 865); Mariyam's case 1961 K LT 33 and Kunnjan Sivan's case 1969 K LT 602, and held that the expression "retrial" used in Section 423(1)(a) of the Code includes limited retrial and retrial from the stage at which the error or illegality crept in and it can be restricted even to hearing. 20. In Rajendran Nair v. State of Kerala 1978 K LT 625, the trial Court convicted the accused and the Sessions Court in appeal set aside the conviction and sentence and remanded the case for fresh disposal after giving an opportunity to the prosecution to adduce "best" evidence. Poti, J. (as he then was) in revision held that such a remand is illegal and directed the Sessions Court to dispose of the appeal afresh. The learned Judge relied on the views expressed by Khalid, J. (as he then was) in Crl. R.P. No. 371 of 1975 and Kader, J. in Crl. R.P. No. 54 of 1977 (1979 K LT 635). The learned Judge compared the provisions in Sections 386(b) and 391 of the 1973 Code and held that where additional evidence is felt necessary, Section 391 should be invoked and the case disposed by the appellate Court after recording additional evidence by the appellate Court itself or getting the evidence to be taken by the Magistrate. However the learned Judge did not consider the provision in Section 386(b)(i) enabling the appellate Court to order retrial of the case or the scope of the expression "retrial". 21. In Kesavan Nair's case 1979 K LT 635, there was conviction by the trial Court and in appeal Sessions Court set aside the conviction and remanded the case to the trial Court directing it to take additional evidence and dispose of the case afresh in accordance with law. Kader, J. set aside the judgment of the appellate Court and directed the appellate Court to rehear the appeal and dispose of the same in accordance with law. The judgment indicates that the Sessions Court made it clear that it was invoking power under Section 391 of the Code. Section 391 however does not contemplate remand of the case. It enables the appellate Court, if it thinks additional evidence necessary, to take

evidence itself or direct it to be taken by Magistrate and thereafter to dispose of the appeal after considering the original evidence and the additional evidence. The learned Judge also indicated that Section 391 of the Code neither authorises the appellate Court to order fresh trial nor allows the trial Court to redecide the case on the additional evidence. We notice that the provisions of Section 386(b) of the Code were not invoked before the learned Judge, who therefore had no occasion to consider whether the order of retrial could be justified under that provision. In the order in Crl. R.P. 371/75 (relied on in Rajendran Nair's case 1978 K LT 625, Khalid, J. (as he then was) did not consider if Section 396(b) could be invoked in such cases. 22. In Govindan's case MANU/KE/0167/1981) the trial Court convicted the accused under the provisions of the P.F.A. Act and in appeal before the Sessions Court prosecution filed an application under Section 311 of the Code seeking permission to adduce additional evidence in proof of compliance with Section 13(2) of the P.F.A. Act and that application was allowed. Thereafter the Magistrate took additional evidence under Section 391 of the Code and returned the evidence so recorded with the files and with the finding that Section 13(2) had been complied with. The Sessions Court dismissed the appeal accepting the finding. In revision the High Court indicated that while Section 391 enables the appellate Court to take additional evidence itself or direct it to be taken by a Magistrate, it does not enable the Magistrate to record a finding on the basis of the additional evidence so recorded and the appellate Court was not competent to treat any such finding as its own. The function of the Magistrate who is directed under Section 391 to record additional evidence is merely to record and certify such evidence to the appellate Court. Khalid, J. (as he then was) agreed with the view that what is contemplated in Section 391 of the Code is not a remand to the Magistrate for the purpose of fresh disposal after taking evidence. This decision is an authority only for the position that under Section 391 appellate Court cannot direct the trial Court to take additional evidence and dispose of the case and the trial Magistrate cannot after recording additional evidence give a finding. The learned Judge also referred to the observations in Kesavan Nair's case 1979 K LT 635. 23. We notice that in the last three reported decisions as also in the unreported decision in Crl. R.P. 371 of 1975, the earlier decisions of this Court in Mariyam's case 1961 K LT 33, Kunjan Sivan's case 1969 K LT 602 and Kittunni Subramonian's case MANU/KE/0190/1973were not referred to. Nor did these decisions refer to the decision of the Supreme Court in Chinnaswamy's caseMANU/SC/0133/1962 : AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), which clearly spelled out the competency of the appellate Court to remand the case for rehearing and redisposal. 24. Section 391 confers on the appellate Court a special and peculiar kind of power. Under this provision, in dealing with any appeal under Chap. XXIX (whether it be an appeal against acquittal or conviction) appellate Court if it thinks additional evidence necessary shall record its reasons and either take such evidence itself "or direct it to be taken by a Magistrate. When the appellate Court is the High Court evidence can be taken by Court of Session or Magistrate. Thereupon the Magistrate shall take additional evidence and certify such evidence to the appellate Court and the appellate Court shall thereupon proceed to dispose of the appeal, hi issuing a direction under Section 391 to the Magistrate to record additional evidence, appellate Court does not set aside the judgment of the trial Court, does not dispose of the appeal and does not remand the case. Appeal shall be retained on the file of the appellate Court when additional evidence is called for and thereafter the original evidence and additional evidence is to be considered and the appeal disposed of. No further inquiry or retrial or rehearing by the trial Court is contemplated. 25. A specific provision like Section 391 of the Code is necessary since the direction contemplated thereunder is not within the power of the appellate Court under Section 386 of the Code. Section 386 deals separately with powers of the appellate Court in an appeal from acquittal, appeal from conviction, an appeal for enhancement of sentence or an appeal from any other order. In an appeal from acquittal the Court may reverse the acquittal and direct further inquiry be made, or that the accused be retried or committed for trial, as the case may be. or find him guilty and pass sentence on him according to law. In an appeal from conviction the Court may reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial. It has to be noticed the words "further inquiry" found in Clause (a) are not found in Clause (b). In some of the decisions of other High Courts referred to earlier, an inference is drawn from the absence of words further inquiry" in Clause (b). We do not think that such an inference could be legitimately drawn, that is because 'inquiry' as defined in the Code is different from trial. Section 2(g) of the Code defines 'inquiry' as "every inquiry other than a trial, conducted under the Code by a Magistrate or Court". The expressions "inquiry" and "trial" have different connotations. The fact that Section 386(b) of the Code does not specifically empower the appellate Court to direct further inquiry to be made cannot lead to the inference that the appellate Court cannot order a limited retrial. 26. The power to direct the accused to be retried has been conferred oh the appellate Court not only when it deals with an appeal against acquittal but also when it deals with an appeal against conviction. In ordinary parlance retrial only connotes a person being tried once again. Such trial may be from its very inception or it may be from a particular stage. The expression "retrial" should not be given a rigid connotation as "de novo" trial. There is nothing either in the context or other provisions of Section 386 which indicates that such a narrow and rigid view of the expression "retrial" has been intended by the legislature. As indicated by the Supreme Court in the decisions already referred to, a retrial is not ordered ordinarily. Prosecution had its day in the trial Court and if the evidence adduced by the prosecution is insufficient to bring home guilt of the accused, he would be entitled to acquittal.

It is only in exceptional cases that the appellate Court requires the accused to face trial again. There may be cases where trial Court wrongfully refused to receive evidence sought to be adduced either by the prosecution or by the defence; it may be that the accused had not been questioned regarding the incriminating circumstances appearing against him or it may be that the trial Court committed material irregularity or serious illegality which caused serious prejudice to the accused or it may be that the trial is vitiated for other reasons or the trial Court had no jurisdiction to proceed with the trial in spite of objection. We do not think there is anything in Section 386 to indicate that in all these cases and irrespective of the circumstances of the case, accused should be subjected to de novo trial. Once the appellate Court comes to the conclusion that justice requires retrial it is for that Court to consider whether it should be a completely de novo trial or continuance or completion of the trial already commenced. Whether direction of the one or the other type should be issued depends on the facts and circumstances of each case, alleged irregularity or illegality committed by the trial Court or the exact reason which prompts the appellate Court to send back the case. Where the illegality or material irregularity committed by the trial Court has prejudiced the accused or even the prosecution, it will be against public policy to wipe the entire evidence off the record and direct the Magistrate to start again or the accused to face de novo trial from the very beginning. Public interest is not only not served thereby; public interest will be adversely affected thereby. There may be cases where even though the trial Court did not commit any material irregularity or illegality, appellate Court comes to the conclusion for proper reasons that either on account of collusion or otherwise evidence available was not placed before Court and that such evidence is necessary for a proper disposal of the case or in public interest. One way of ensuring it is to have recourse to Section 391 of the Code; but that may not always be convenient or practicable. In such cases recourse may be had to the provisions in Section 386 of the Code enabling retrial and retrial may be ordered from a particular stage. When additional evidence by way of examination of witnesses for prosecution is ordered under Section 391 of the Code that may necessitate further questioning by the Court of the accused under Section 313 of the Code and thereupon the accused may have to get an opportunity to adduce evidence. It may not always be practicable or convenient for the appellate court to go through this entire exercise. In appropriate cases it must be open to the appellate Court to order retrial from a particular stage. We find nothing in the decisions of the Supreme Court or in the provisions of the Code to warrant the view that retrial necessarily means de novo trial. Even where partial retrial is held that amounts to accused being tried again. Retrial could also mean continuation or completion of the original trial. We are of the opinion that such retrial can be ordered under Section 386 of the Code. We affirm the view taken in Mariyam's case. 1961 K LT 33. With great respect we are unable to agree with the view taken in Crl. R.P. 371 75 and Rajendran Nair's case 1978 K LT 625. There is nothing in. Kesavan Nair's case 1979 K LT 635 and Govindan's case MANU/KE/0167/1981) which goes against the view we have taken. 27. We therefore find nothing illegal in the remand order passed by the appellate Court in the first instance. The accused abided by the remand order. He participated in the retrial before the trial Court. He did not challenge the remand order in revision or otherwise. Similar conduct on the part of accused has been commented upon by Khalid, J. (as he then was) in Govindan's caseMANU/KE/0167/1981at p. 785), where the learned judge observed :

"It is necessary to note that the petitioner did not challenge the order of the Sessions Judge dated 14-11-1978 when he sent back the case to the Magistrate for the purpose of taking additional evidence and to return a finding. The petitioner's counsel attempts now to question the correctness and propriety of that order in this revision. It may not be permissible to allow him to do so. He could have challenged that order by moving this Court if a revision would lie against it or under Section 482, Cr. P.C. Not having done so an attack against that order at this stage will not be entertained."
28. We find no ground to interfere with the conviction or sentence imposed on the revision petitioner and accordingly dismiss the revision petition. *A reproduction from ILR (Kerala Series)

Manupatra Information Solutions Pvt. Ltd.

MANU/KE/0622/2007 Equivalent Citation: III(2008)BC91, ILR2007(3)Kerala312, 2007(2)KLJ673 IN THE HIGH COURT OF KERALA Crl. M.A. No. 7686 of 2007 in Crl. R.P. No. 116 of 2006 Decided On: 19.07.2007 Appellants: K.R. Aravindakshan Nair Vs. Respondent: Essen Bhankers and Anr. Hon'ble Judges/Coram: V. Ramkumar, J. Counsels: For Appellant/Petitioner/Plaintiff: Gracious Kuriakose, Adv. For Respondents/Defendant: K.S. Sivakumar, PP Subject: Criminal Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act, 1881 - Section 138; Indian Evidence Act - Section 73; Code of Criminal Procedure (CrPC) - Section 391(1), Code of Criminal Procedure (CrPC) - Section 397, Code of Criminal Procedure (CrPC) - Section 401 Cases Referred: O. Bharatha v. K. Sudhakeran and Anr. AIR 1996 SC 1140; State (Delhi Administration) v. Pali Ram AIR 1979 SC 14; Ajit Savant Majagvai v. State of Karnataka 1997 (7) SCC 110; Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat AIR 1970 SC 1; Thambi v. Mathew 1987 (2) KLT 848; State of Kerala v. Ussain 1990 (1) KLT 498 *Case Note: Evidence Act, 1872 (Central Act 1 of 1872) - Section 73--Comparison of signature by Court-Normally Court need not take upon itself the task of comparing the disputed signature with admitted signature or handwriting--In case of slightest doubt Court should refer the matter for expert opinion. Revision Petitioner, accused in a prosecution under Section 138 of Negotiable Instruments Act filed petition to get the disputed signature in a document compared with his admitted signature. He contended that the document produced is fabricated by complainant and that he had not executed such a document. Revision Petitioner averred that the Counsel engaged by him passed away during trial and a relatively inexperienced Counsel conducted the trial and hence did not take steps to send the document for opinion of handwriting expert. Party Respondent resisted the petition and contended that the Court itself compared the signatures and that accused did not dispute the signature in the cheque. The Hon'ble Court compared the signature and found that there is dissimilarity in the signatures and directed the Magistrate to send the signatures for opinion of the expert; Held: When the court itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section 73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. [See O. Bharathan v. K. Sudhakaran and another A.I.R. 1996 S.C. 1140 and State (Delhi Administration) v. Pali Ram A.I.R. 1979 S.C. 14]. As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the sightest doubt, the court should leave the matter to the wisdom of an expert. ORDER V.R. Ramkumar, J. 1. The petitioner herein is the revision petitioner/accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The request of the petitioner in this petition is to get the disputed signature in Ext. P10 compared with the admitted signatures of the petitioner by a handwriting expert of the Forensic Science Laboratory, Thiruvananthapuram. 2. The case of the first respondent/complainant who is a money lender is that the accused borrowed a sum of Rs. 4.25 lakhs as evidenced by Ext. P10 voucher dated 9-4-1999 and towards discharge of the said liability the accused issued Ext. P4 cheque dated 14-3-2002 for Rs. 6,10,000/- and on presentation of the cheque in the drawee bank it bounced. 3. The revision petitioner inter alia took up the stand that in relation to certain previous transactions with the complainant bank, five blank cheques were taken by the complainant from the revision petitioner and Ext. P4 cheque is one of those cheque and the signatures in Ext. P10 voucher as well as Ext. P4 cheque were forged.

4. The revision petitioner has a grievance that one Advocate Mohan was engaged by him to appear for him in the trial court and the said Advocate expired during the pendency of the case and since a junior advocate was thereafter appearing for the petitioner, he did not take prompt steps for getting the disputed signature examined by an expert. 5. The learned Counsel appearing for the first respondent/complainant opposed the application contending inter alia as follows:

The revision petitioner/accused had not cared to send even a reply to the statutory notice sent by him. No such petition was filed by him before the trial court. Notwithstanding slight discrepancy, the signatures in Ext. P4 cheque and Ext. P10 voucher resemble the undisputed signatures of the accused in his vakalath, deposition (DW1) etc. The trial court has noticed that his own admitted signature in Ext. P9 postal acknowledgment differs from his own other admitted signatures. He did not dispute his signature in Ext. P4 cheque and, therefore, the question of comparing the signatures by a handwriting expert does not arise.
6. I am afraid that I cannot agree with the above submissions on behalf of the complainant. The accused has offered an explanation as to why no reply was given by him to the statutory notice. According to him, after receipt of the said notice, when he approached the complainant, the complainant assured him that he need not take the notice seriously and accordingly took the notice from the accused who was thus disabled from preparing a reply to the notice. He has similar explanation as to why no such petition was filed before the trial court. The counsel whom he had engaged to conduct the case passed away and it was a relatively inexperienced junior who conducted the case. 7. It cannot be said that the signatures in Exts. P4 cheque and P10 voucher resemble the admitted signatures of the accused. I have attempted a comparison of the signature found in Ext. P4 cheque and Ext. P10 voucher with the undisputed signatures of the accused in his deposition as D.W. 1. There appears no similarity at all in the signatures in Ext. P4 and P10 with admitted signatures of the accused in his deposition. In fact, in paragraph, 10 of the judgment of the trial court it is observed that there is some dissimilarity in the signature in Ext. P10 voucher with the signature of the accused in Ext. P4 cheque and with the signatures of the accused in the bail bond, vakalath and deposition etc. No doubt, the admitted signatures of the accused in Ext. P9 postal acknowledgment card does not bear any similarity with his admitted signatures in the vakalath, bail bond and deposition. No two signatures of the same person can ever be identical in all respects. But the essential and unique characteristics of the writings of a person will invariably be present even if those signatures were to be replicated by the same person. The discrepancies in such a case will be within the natural variations. When the courts itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. (See O. Bharatha v. K. Sudhakeran and Anr. MANU/SC/0305/1996 : AIR1996SC1140 and State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 ). As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the slightest doubt, the court should leave the matter to the wisdom of an expert. (Ajit Savant Majagvai v. State of Karnataka MANU/SC/0822/1997 : 1997CriLJ3964 ). 7.1. After comparing the signatures in Exts. P4 cheque and P10 voucher with the admitted signatures of the accused in his deposition as D.W. 1 and other admitted signatures, I entertain serious doubt as to the genuineness of the signatures on Ext. P4 cheque and Ext. P10 vouchee and also the writing of the name of the accused in Ext. P10. It will be unsafe, if not hazardous for the court to attempt a comparison unaided by the scientific opinion of an expert. I am therefore of the view that without getting an expert opinion regarding the above, this Court should not venture to decide the matter on the merits. I do not consider it necessary to set aside the impugned judgments and remit the entire case to the trial court. It will be sufficient to call for a finding from the trial Court. Even though this is a revision it is well settled that the revisional jurisdiction is another facet of the appellate jurisdiction. (Vide Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat MANU/SC/0456/1969 : [1970]1SCR322 , Thambi v. Mathew 1987 (2) KLT 848, State of Kerala v. Ussain 1990 (1) KLT 498). If so, this Court can invoke the power under Section 391(1) Cr.P.C. read with Sections 397 and 401 Cr.PC. and direct the trial Magistrate to send the disputed signature in Ext. P4 cheque and the disputed writing of the name of the accused and the disputed signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. The records in this case shall, accordingly be forwarded to the Chief Judicial Magistrate, Pathanamthitta who shall send the disputed signature in Ext. P4 cheque and the disputed writings including the signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. After receipt of the report from the expert, the Chief Judicial Magistrate shall record his findings in that behalf and forward the findings to this Court within four months of receipt of a copy of this order. Parties shall appear before the trial Magistrate on 8-8-2007 without any further notice. The lower court records shall be forwarded to the trial Court forthwith. Post the above Crl. R.P. No. 12-12-2007. *A reproduction from ILR (Kerala Series) Manupatra Information Solutions Pvt. Ltd.

MANU/SC/0305/1996

Equivalent

Citation: AIR1996SC1140,

JT1996(2)SC384,

1996(1)KLT466(SC),

1996(1)OLR290,

1996(I)OLR(SC)290, 1996(1)SCALE688, (1996)2SCC704, 1996(1)UJ307 IN THE SUPREME COURT OF INDIA Civil Appeal No. 3332 of 1992 Decided On: 06.02.1996 Appellants: O. Bharatan Vs. Respondent: K. Sudhakaran and another Hon'ble J.S. Verma and K. Venkataswami, JJ. Subject: Election Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Representation of the People Act, 1951 - Section 62, Representation of the People Act, 1951 - Section 100; Evidence Act - Section 45, Evidence Act - Section 73, Evidence Act - Section 78 Cases Referred: State v. Pali Ram MANU/SC/0189/1978; Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326 Citing Reference: Judges/Coram:

Mentioned 2

Case

Note:

Election - bogus voting - Section 62 of Representation of The People Act, 1951 - there is no legal bar to Court to compare disputed writing with admitted one even without aid of evidence of handwriting expert - Court should as matter of prudence and caution hesitate to base its findings with regard to identity of handwriting - it is thus not advisable that Court should take upon itself task of comparing admitted writing with disputed one to find out whether two pieces of writings agree with each other - prudent course is to obtain opinion and assistance of expert. ORDER K. Venkataswami, J. 1. This appeal under Section 116A of the Representation of the People Act 1951 (hereinafter referred to as "the Act") is preferred against the judgment and order in Election Petition No. 4 of 1991 of the Kerala High Court. The appellant was the elected candidate to Kerala Legislative Assembly from No. 11, Edakkad constituency. The election was held on 12th June, 1991. There were only three

candidates in the field. The appellant was polled 54965 votes and the first respondent was polled 54746 votes and the appellant having secured 219 votes more than the first respondent was declared as successful candidate. That declaration was challenged by the first respondent by filing an Election Petition as mentioned above. 2. The election of the appellant was challenged by the first respondent on a single ground at the trial on which alone evidence was let in and which found favour with the High Court could be stated by setting out ground (B) as given in the Election Petition :

B. Similarly large number of other void votes have also been illegally cast and received at the time of the polling which took place on the 12th June, 1991 to the Edakkad Assembly Constituency. In the voters' list, the names of some persons who are one and the same but whose names have been entered more than once in the voters' list with intentional slight difference in the House No. with variation in the description of their names, in their father's husband's names etc. Taking into advantage that position more than one vote has been cast in the names of such persons. Under Section 62 of the Representation of the People Act, 1951, no person shall at any election vote in the same constituency more than once and, if he does so vote, all his votes in that constituency shall be void. The petitioner respectfully submits that persons whose names and other details are mentioned in the list, produced along with as Annexure-B to the petition, have exercised more than one votes in the election aforesaid to the Edakkad No. 11 Assembly Constituency. Since the names and other details of such persons are far too numerious, the petitioner is producing along with the petition a list containing the names and details as Annexure-B to this petition. The reception of the aforesaid votes from the aforesaid persons, was improper and amounted to receiving votes improperly and reception of void votes. More than 1114 votes have been received from the aforesaid persons. Thus about 1114 void votes have been received in the elections to the No. 11 Edakkad Assembly Constituency. Those votes have been counted and taken into account in declaring the first respondent as elected. The petitioner submits that the reception of such void votes has materially affected the results of the elections. The petitioner has reasons to believe that votes that have been cast in the name of those persons whose names appear in Annexure-B have all gone in favour of the first respondent. If those votes are scrutinised, inspected and excluded, undoubtedly it will be revealed that the result of the election in so far as it concerns the first respondent, the returned candidate, has been materially affected by reception of void votes. If those votes are excluded undoubtedly the petitioner would be found to have obtained a majority of the valid votes. But for the reception of the aforesaid void votes the first respondent would never have been declared elected, and instead the petitioner would have been declared elected.
3. In support of this ground the first respondent (Election Petitioner) has examined as many as 322 witnesses and filed Exhibits numbering about 1293. In the light of the oral and documentary evidence, the learned Judge initially rendered an interim judgment on 10.8.1992 giving a finding as follows:

I find that 269 votes are void under Section 62(4) of the Representation of the People Act, 1951 and I have also found 39 votes have been cast by persons whose names were not included in the electoral roll. These votes were cast by impersonation under Section 62(1) of the Act. These votes must have been accepted as valid votes by the returning officer at the time of counting. This amounts to improper reception of votes as envisaged under Section 100(l)(d)(iii) of the Act. As the first respondent was declared elected by by a margin of 219 votes, the declaration of these votes as void and invalid may materially affect the result of the returned candidate. These votes have to be searched out and excluded from the total number of votes.
4. In order to find out the candidate in whose favour those votes have been cast, the learned Judge overruling the objection raised by the learned counsel for the appellant/elected candidate that the suggestion to open the ballot boxes to examine the ballot papers would violate the secrecy of the ballot, ordered for opening of the ballot boxes to examine the ballot papers for the purpose mentioned above. This job was entrusted to the Joint Registrar of the High Court who after verification found out of 308 void/invalid votes, (namely 269-39) 306 of such votes have been polled in favour of the appellant/elected candidate. In view of the said report given by the Joint Registrar, the learned Judge found that those 306 votes countered in favour of the elected candidate must be deducted and after so doing, the Appellant/Elected candidate was found to have secured only 54659 which is less than 89 votes secured by the Election Petitioner (first respondent herein). As a consequence of this finding while setting aside the election of the appellant as void, the learned Judge further declared the first respondent as duly elected to the said constituency. 5. Aggrieved by the above judgment and order of the Kerala High Court, the present appeal has been filed by the appellant. Though several arguments concerning procedural irregularities and legal infirmities in the order were pointed out, we do not consider it necessary to go into all those points in the view we propose to take which in our opinion will be sufficient for the disposal of this case.

6. From the facts narrated above, it will be seen that the learned Judge has found on the basis of appreciation of evidence let in before him that 306 votes polled in favour of the appellant were either void or invalid and as such they should be deducted from the votes polled in his favour. For coming to the conclusion that 269 votes polled were void, the learned Judge found on appreciation of oral evidence that witnesses examined on the side of the Election Petitioner (respondent No. 1) have either admitted that they have voted two times or they must be deemed to have voted two times in view of the similarity of the signatures in two counter-foils alleged to be related to those witnesses. 7. Learned Senior counsel appearing for the appellant vehemently attacked the conclusion of the learned judge that the witnesses have admitted their signatures and also the fact of voting twice. According to the learned Counsel such finding being perverse cannot be sustained in respect of at least 65 witnesses corresponding to 130 votes. To support his contention, learned Counsel as samples pointed out certain portions from the evidence of the witnesses and also certain portions from the judgment of the learned Judge himself. 8. As a sample of oral evidence, he invited our attention to the evidence of P.W.58. P.W.58 in the Chief Examination has stated as follows :

I cast my vote in Mayilayi polling station. The polling station was in Cherumavilayi U.P. school. (Ext. 711 Marked) Ext. P.711 counterfoil confronted to the witness and the witness denies the signature. (Ext. P.712 marked) Ext. p.712 counterfoil shown to the witness. The signature in that also is denied by the witness. Ext. P. 391 declaration shown to the witness. Witness admits the signature. Voter No. 142 Uthenanchalil K.K. Chandran w/o Chandran of polling station No. 69 is myself. I have still doubt whether Ext. p. 712 is signed by me. I am certain that the signature found in Ext. P.711 is not my signature.
9. On the above evidence the conclusion of the learned Judge is as follows :

According to PW53 she had cast only one vote No. 142. The corresponding counterfoil is marked as Ext. P. 711. When this was confirmed to the witness she denied the signature therein. Ext. P. 712 is the counterfoil corresponding to voter No. 239. The signature in Ext. P. 711 and Ext. P 712 are almost similar. There is slight variation. But that does not affect the petitioner's case, as the signature in Ext. P. 712 is exactly similar to the signature put by the witness in the deposition. Therefore, it is clear that voter No. 142 and 239 in Ext. P60 is one and the same person and that voter has cast more than one vote. In the result, I declare that vote cast against counterfoil No. 070975 (Ext. P.711) Of polling station No. 69 and the vote case against counterfoil No. 070258 (Ext. P. 712) and polling station No. 69 are void.
10. In another instance the learned judge held as follows:

The signature of the witness in the deposition does not tally with the signature found in these two counterfoils. On a comparison of the signature in Ext. P 713 and P 714. I have little doubt that the same witness has cast two votes. Therefore, I declare that vote cast against counterfoil No. 070653 (Ext. P 713) of polling station No. 69 and the vote cast against counterfoil No. 070309 (Ext. P 714) of polling station No. 69 are void.
11. While appreciating the evidence of P.W.69 the Court held as follows :

P.W. 69 admits that he is voter No. 1392 in Ext. P 53 electoral roll. The witness also admits that voter No. 563 in Ext. P. 47 refers to him. According to this witness he had cast vote in polling station No. 53. The two counterfoils were shown to the witness and he denied both. In the cross-examination, however, he stated that he has no connection with Kadampeth house and that voter No. 1392 is Ext. P 53 is not himself. The signatures in the two counterfoils are not closely similar. So it cannot be said that both votes were cast by P.w.69. The signature in Ext. P. 762 has got similarity with the signature of the witness in the deposition. So the vote against Ext. P 761 must have been cast by some other person. Therefore, I hold that the vote cast against counterfoil No. 062682 (Ext. P 761) in polling station No. 61 is invalid vote.
12. The evidence of P.W.146 reads as follows:

My father's name is Chathukutty. My house is Challivalappil. My mother's name is Lakshmi and I am a driver by profession. Ext. P 109 Balakrishnana Chathukutty Nambiar is not myself. My father is not Chathukutty Nambiar. (Counterfoil Nos. 120847 and 056691 are marked as Ext. P 936 and 937)'. Witness denies both the signatures. I have cast only one vote.
13. Cross-examination by 1st respondent's counsel:

In Ext. P 50 against SI. No. 642 the house No. shown is 245. It is not my house number. I have no connection with the house by name Krishnalayam. SI. No. 642 is on Krishnan Nambiar. I am a member of Thiyya community. (Witness says that he is in possession of

driving licence and shows the same before court and his name has been written there as C.V. Balakrishna. The driving licence also contains a photograph of the witness.
14. On the above evidence, the High Court found as follows:

P.W.146 Balakrishnan admits that his father's name is Chathukutty and his mother's name is Lakshmi. He also admits that he is voter No. 1192 in Ext. P 50 electoral roll, but he denied that he is voter No. 47 in Ext. P 103 electoral roll. The voter No. 47 is one Balakrishnan Chathukutty Nambiar and according to this witness his father is not Chathukutty Nambiar and that he belongs to Thiyya community. But it is pertinent to note that in Ext. P. 50 voter No. 1192 is shown as resident of house No. 245. In the original voters list of polling station No. 50, house No. 245 is described as Krishnalayam and voter No, 642 is one L. Krishnan Nambiar. P.W. 146 is not in a position to explain as to how his name happened to be included as a resident of the house of Krishnan Nambiar. So even in the admitted entry there is voter No. 1192 in Ext. P 50. The corresponding counterfoil is marked as Ext. P. 937. Even though the witness denies his signature therein, that is to be taken as his admitted signature as it corresponds with his admitted entry. The signature in Ext. P 937 is strikingly similar to the signature in Ext. P 36 counterfoil. So, it is clear that the person who put the signature in Ext. P. 937 must have put the signature in Ext. P. 936 also. Therefore, is proved that there is not only similarity between the two signatures also. So, I hold that P.W. 146 had cast two votes. In the result, I declare that the vote cast against counterfoil No. 120847 (Ext. P936) in polling station No. 115 and the vote cast against counterfoil No. 956691 (Ext. P. 937) in polling station No. 56 are void.
15. Likewise while commenting on P.W. 149 the Court held as follows:

According to the witness she had cast vote in polling station No. 91 as voter No. 683. The corresponding counterfoil, marked as Ext. P. 942, was shown to the witness. She denied the signature therein. Ext. P 943, the counterfoil of voter No. 1143 in Ext. P 78 was shown to the witness. She denied that signature also. But on a bare perusal of these two signatures it can be seen that there is close resemblance between the two. The similarity in name and the close resemblance of the two signatures in the counterfoils would clearly establish that P.w. 149 had cast two votes. In the signature in Ext. P 942 and 943 the first letter 'K' is so conspicuous and the style of writing and the figure of the signatures are exactly similar. Under the above circumstances, I hold that P.W. 149 had cast two votes. Therefore, the vote case against counterfoil No. 903440 (Ext. P. 942) in polling station No. 91 and the vote cast against counterfoil No. 901398 (Ext. P. 943) in polling station No. 89 are declared void.
16. Similar are the cases regarding 65 witnesses at least. This is not seriously disputed by the learned Counsel for the first respondent. Though the signatures are challenged, the learned judge overruling the objection raised by the learned Counsel for the appellant herein that unless the disputed signatures are compared with the admitted signatures, the same cannot be taken into account proceeded to compare the signatures by himself and found that they are either similar or slightly varying. 17. It appears that the learned Judge has decided the question of void and invalid votes on insufficient materials and evidence in the case. Majority of the witnesses denied that they have voted more than once and they have also denied their signatures in the counterfoils. Under such circumstances, the learned Judge could have summoned documents containing admitted signatures for comparison by an expert and also by comparing them himself. Instead the learned Judge understood the hazardous task of comparing hundreds of disputed signatures which are not having individual characteristics to set aside the election of a candidate, the appellant herein. 18. The learned Judge in the course of the judgment has observed as follows:

Most of the witnesses either denied their signature or expressed their inability to identify their signatures. In the case of some well-executed persons when counterfoils containing the signature were shown to them, they stated that they could not identify the signatures. Every reasonable prudent person would be able to identify his signature whenever the signature is shown to him.
19. Notwithstanding the above fact, namely, the learned Judge while doubting the testimony of the witnesses, instead of confronting them in a legal way to get the truth, jumped to his own conclusion. The learned Judge in the course of appreciating the scope of Section 73 of the Evidence Act and having given a finding that under Section 73 of the Evidence Act a disputed signature could be compared only with the admitted signatures, proceeded to compare the signatures found in the counterfoils to find out whether both the signatures were to be by the same person. 20. On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the counterfoils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the learned Judge

is not in conformity with the spirit of Section 73 of the Evidence Act. Though the rulings of this Court in State v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 and Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 326 were brought to his notice, the learned Judge proceeded to compare the disputed signatures by himself and decided the issue. While doing so, the learned Judge observed as follows:

So all these witnesses are in the habit of occasionally putting their signature. Strangely enough most of the witnesses either denied their signature or expressed their inability to identify their signature. Even in the case of some well-educated persons when counterfoils containing the signatures were shown to them, they stated that they could not identify the signatures. Every reasonable prudent persons would be able to identify his signature whenever the signature is shown to him. It is clear that these witnesses denied their signatures or failed to identify the signature with a definite purpose that at least one signature should not be taken as the admitted signature so as to make a comparison with the denied signature. It is also possible that the witnesses who had cast more than one vote pretended that they could not identify any of the signatures to make believe that they had not cast more than one vote. The denial of the signatures and the failure of these witnesses to identify their own signatures is to be viewed in the background of similarity of the signatures found in the various counterfoils.
Again the learned Judge observed as follows :

It is true that under Section 73 of the Evidence Act a disputed signature could be compared only with the admitted signature or signature proved to the satisfaction of the court to have been written or made by that person. Reliance was placed on the decision reported in State (Delhi Admn.) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 and contended that it is not advisable that a Judge should take up the task of comparing the admitted handwriting with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. This opinion was expressed by the Supreme Court in a criminal case while considering the question whether the accused had committed the offence of forgery and cheating. In Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326, the Supreme Court observed that comparison of the handwriting by the court with the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert is hazardous and inconclusive. These observations were made in the facts and circumstances of such case. But, in the instant case, comparison of the signature found in the counterfoil are made to ascertain whether both signatures were put by the same person. *************** In the instant case, several witnesses who are alleged to have exercised their franchise more than once admitted that their names have been included in the electoral roll. They would say that they cast only one vote. In cases where their names are entered more than once in the electoral roll these witnesses admitted one entry and denied the other. The counterfoil corresponding to the admitted entry in the electoral roll must contain the signature of the voter. Even though this signature has also been denied by the witness or rather failed to be identified by the witness, it can safely be taken as the admitted signature of the witness. That signature could be very well compared with the signature appearing in the disputed counterfoil. *************** So the standard of strict proof can be insisted only in the election petition wherein the election is sought to be set aside on the ground of corrupt practice. In the instant case it can only be said that standard of proof should be of high nature, as an election petition is not liable to be set aside on vague or inaccurate evidence, and the court must uphold an election when two different views are reasonably possible, from the evidence adduced in the case. *************** As already pointed out by me the close similarity in the signature in the counterfoils is also a strong proof to show that the entry related to the same person. It is also important to note that most of the witnesses denied their signatures in both the counterfoils. They could not identify their own signature and it is also clear that many or these witnesses changed their signatures and put different signatures in the deposition, in some cases the witnesses were asked to give specimen signatures and these specimen signatures were taken in open court and they are marked as exhibits

in the case. The specimen signatures in many cases do not tally with the signatures found in the -counterfoil of the voter, who admittedly cast his vote as voter against a particular serial number. With this broad outline in the evidence I propose to consider the evidence of each witness who allegedly cast vote more than once.
21. It is on the basis of such conclusion the learned Judge arrived at the finding that 269 votes were void as one voter has voted twice. As pointed out earlier at least in the cases of 65 such witnesses (that means 130 votes) where the signatures are not admitted the findings of the learned Judge cannot be supported for the reasons given earlier. If those 130 votes which were declared void, and found polled in favour of the appellant herein are taken into account in his favour, certainly the appellant must be found to have secured more votes than the first respondent herein. 22. The learned Judge in our view was not right either in brushing aside the principles laid down by this Court in MANU/SC/0189/1978 : 1979CriLJ17 (supra) on the ground that it was not a criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the verdict of popular will is as much as serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is not the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decisions to be ultimately rendered. To quote, it has been held in MANU/SC/0189/1978 : 1979CriLJ17 (supra) :

The matter can be viewed from another angle also. Although, there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identify of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
23. The necessity for adhering to the said sound advise and guidance is all the more necessary in a case where hundreds of signatures are disputed and the striking dissimilarities noticed by the Court at the time of trial of the Election Petition. 24. The learned Counsel appearing for the first respondent was not able to convince us that the learned Judge was right in comparing the signatures himself at any rate in the peculiar facts and circumstances of the case and rendering the findings against the appellant herein. As we are satisfied on the peculiar facts of this case also that the learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void, we need not go into other arguments advanced before us. 25. As we find that at least 130 votes are validly polled in favour of the appellant for the reasons given earlier then he must be held to have secured 43 votes more than the first respondent herein. 26. In the result, we hold that the learned Judge was not right in declaring the election of the appellant as void and declaring the first respondent as duly elected. Accordingly, the appeal is allowed and the Election Petition is dismissed with costs throughout.

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MANU/KE/0204/2010 Equivalent Citation: 3(2010)BC604, ILR2010(2)Kerala312, 2010(2)KLT397 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl. Rev. Pet. No. 1187 of 2005 Decided On: 09.04.2010 Appellants: S. Devan, Cine Artist Vs. Respondent: C. Krishna Menon and State of Kerala Hon'ble Judges/Coram: R. Basant and M.C. Hari Rani , JJ. Counsels: For Appellant/Petitioner/Plaintiff: G. Janardhana Kurup, Sr. Adv. For Respondents/Defendant: K. Ramakumar, Sr. Adv. Subject: Banking Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act - Section 138, Negotiable Instruments Act - Section 139; Indian Evidence Act - Section 73, Indian Evidence Act - Section 118; Indian Penal Code (IPC) Section 420;Code of Criminal Procedure (CrPC) - Section 315, Code of Criminal Procedure (CrPC) Section 357(1), Code of Criminal Procedure (CrPC) - Section 391 Cases Referred: Thomas Varghese v. P. Jerome 1992 Cri.L.J. 380; Rejikumar v. Sukumaran 2002 KHC 409; M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) K.L.D. (Cri) 811; Goaplast Pvt. Ltd. v. Chico Ursula D'Souza 2003(2) K.L.T. 16 (SC); N.E.P.C. Micon Ltd. v. Magma Leasing Ltd. A.I.R. 1999 S.C. 1952; Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. A.I.R. 2001 S.C. 676; Nanjundappa v. Hanumantharayappa 2008(2) K.L.T. 851; Sadanandan Bhadran v. Madhavan Sunil Kumar 1998(2) K.L.T. 765 (S.C.); Anil Kumar v. Shammy 2002(3) K.L.T. 852 Citing Reference:

Affirmed 1 Discussed 3 Dissented 2 Mentioned 3 *Case Note: Negotiable Instruments Act, 1881 (Central Act 26 of 1881)- Section 138-It is for the Court to determine the true reason for dishonour of the cheque-Court is not bound by the reason stated by Payee's bank for dishonour of the cheque. Revision Petitioner was the accused in an indictment under Section 138 of Negotiable Instruments Act. He was found guilty by Trial Court and appeal was also dismissed. In revision he contended, inter alia, that the cheque was returned by payee's bank with the endorsement 'Signature differs'. Revision Petitioner contended that since the cheques were dishonoured on account of difference in signature, penal provision of Section 138 is not attracted as the said offence will be attracted only if the cheque is dishonoured due to insufficiency of funds. A learned Single Judge referred the case to Division Bench doubting the decision in Thomas Verghese's case (1992 Crl. L.J. 380). Division Bench held that if the signature in the cheque produced by complainant is proved to be not genuine, the instrument cannot be reckoned as a cheque and dishonour of the said instrument will not attract penal consequences envisaged in Section 138. But the decision as to genuineness of the instrument has to be taken by Court and Court is not bound by endorsement made by payee's bank. It was also held that it is for the court to decide the actual reason for dishonour of the cheque. Dismissing the revision petition, the Court.

Held: We do in these circumstances reiterate the law thus. If the signature in the cheque is proved to be not genuine, the instrument cannot be reckoned as a cheque and the same cannot attract culpability under Section 138 of the Negotiable Instruments Act. But the decision as to whether the signature is genuine and whether the execution is proved will have to be taken by a court, the mere fact that the banker returns the cheque for the reason that the signature differs is no reason for the court to mechanically swallow that reason. The courts are obliged to consider whether the real reason for dishonour is insufficiency of funds or not. We may at the risk of repetition proceed to reiterate that if as a matter of fact the signatures are not genuine and the court finds so, needless to say Section 138 of the N.I. Act would not apply. But the endorsement by the banker is not conclusive. The court will have to ascertain the real reason. (Paragraph 37) (1) 1992 Crl. L.J. 380-Affirmed. (2) 2003 (2) K.L.T. 16 (S.C.); (3) A.I.R. 1999 S.C. 1952; (4) A.I.R. 2001 S.C. 676; (5) 2002 K.H.C. 409; (6) 2006 (1) K.L.D. 811; (7) 2008 (2) K.L.T. 851; (8) 1998 (2) K.L.T. 765 (S.C.)Referred to. Negotiable Instruments Act, 1881 (Central Act 26 of 1881)- Section 138-If the signature in the cheque produced by complainant is proved to be not genuine, the instrument cannot be reckoned as a cheque-Dishonour of the said instrument will not attract penal consequences envisaged in Section 138. Held: We have no hesitation to agree straight away that if it is proved that the signatures are not genuine and there has been no valid execution, the cheques will be no cheques at all and consequently culpability under Section 138 of the Negotiable Instruments Act will not be attracted. (Paragraph 32) Revision against judgments of Vth Additional Sessions Court, Ernakulam in Crl. Appeal No. 472 of 2004 and of Addl. Chief Judicial Magistrate, Ernakulam in C.C. No. 766 of 1999. Ratio Decidendi: "Period of limitation must start running from the date of initial presentation of cheque." ORDER R. Basant, J. 1. i) Does a cheque cease to be a cheque merely because the drawer raises a dispute about the execution of the cheque and the genuineness of the signature in the cheque?

ii) Does it cease to be a cheque when a banker constrained to dishonour the cheque of a valued customer instead of returning it with the endorsement that there is no sufficient funds includes the reason that the signature differs? iii) Is an obliging banker making such an endorsement to be reckoned as the final arbiter of culpability in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. iv) Does not the court have jurisdictional competence in a prosecution under Section 138 of the Negotiable Instruments Act to ascertain the real reason for the dishonour of the cheque notwithstanding the purported reasons stated by the Banker ? v) Does the decision in Thomas Varghese v. P. Jerome 1992 Cri.L.J. 380 require or warrant reconsideration? vi) Is there a conflict between the decision in Rejikumar v. Sukumaran 2002 KHC 409 and the decision in M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) K.L.D. (Cri) 811.
2. These interesting questions arise for consideration in this revision petition which has come up before us on a reference by a learned single Judge, who appears to have doubted the correctness of the decision in Thomas Varghese (Supra). 3. We have heard the senior Counsel Sri. G. Janardhana Kurup for the revision petitioner/accused and Ms. Saritha David Chungath for the respondent/complainant. The parties shall be referred to in this order as accused and complainant respectively for the sake of easy reference. 4. The facts scenario which is not in dispute can be summarised as follows: 5. Four cheques each for Rs. 5.5 lakhs marked as Ext.P1 respectively in the four cases which have

been disposed of by a common judgment are the subject matter of these prosecutions. A monetary transaction between the parties is admitted and is not disputed. That there is an undischarged liability for the accused to pay amounts to the complainant is admitted. That the cheques in question are drawn on cheque leaves issued by the Banker of the accused to the accused to operate his Bank account is again admitted. That the complainant is an affluent businessman and the accused is an educated cine artist is also accepted and conceded. That there was correspondence between them about the discharge of the liability and time required for discharge of the liability is also admitted. That the cheques were successively presented for encashment and were dishonoured is admitted. That the cheques were finally presented for encashment and were dishonoured on 08/03/1999 is also admitted. That all the four cheques were dishonoured on 08/03/1999 on the twin grounds - "signature differs and funds insufficient" is again admitted. That the statutory time table has been scrupulously followed after that last dishonour is also conceded. That there was no funds available in the account to honour the cheque on the date of dishonour (8/3/1999) is also not disputed. That the accused had come to know of the earlier attempts for presentation of the cheque and dishonour of the same prior to its final presentation is also conceded. That the accused had not taken any steps after coming to know of such earlier instances of presentation and dishonour is also not disputed. Till now, no action has been taken against the complainant by the accused for alleged misuse of the cheques and that is also not disputed. 6. To the controversy now. The complainant alleged that the cheques were issued to him for the due discharge of a legally enforceable debt/liability. According to the complainant, the accused owed an amount of Rs. 20 lakhs. It was not repaid in time. For return of the said amount of Rs. 20 lakhs along with interest which was fixed at Rs. 2 lakhs, four cheques each for Rs. 5.5 lakhs (total Rs. 22 lakhs) were allegedly issued by the accused to the complainant. Those cheques are marked as Ext.P1 (four cheques) in this prosecution. When the complainant presented the same and it was returned on the twin grounds referred above, the complainant suspected that the accused had fraudulently affixed a different signature with malicious intent to defraud him. The complainant contended that notwithstanding the obliging additional reason shown by the banker that "the signature differs" the real reason for dishonour was insufficiency of funds. The accused, on the contrary, took up a stand towards the fag end of the trial that the cheques were not issued by him to the complainant for the due discharge of any legally enforceable debt/liability. He took a stand during cross examination of PW1 and during 313 examination that the cheque leaves were fraudulently and clandestinely obtained, his signatures were forged in those cheques and those cheques were misused and presented for encashment before the Banker by the complainant. 7. Separate trials commenced. The complainant was examined in all the four cases and documents were marked separately. At that juncture, it appears, joint trial was ordered. The trial continued. The complainant was cross examined in one case after the cases were consolidated. Exts.P1 to P4 were marked in all the four cases. They are the cheques, memo of dishonour, copy of notice and reply notice respectively. Exts.P5, P5(a) and P6 were marked in common after the cases were consolidated and the consolidated trial proceeded. Exts.D1 to D18 were marked by the accused. No oral evidence was adduced by the defence. 8. The courts below - the trial court and the appellate court, concurrently held that the complainant has succeeded in establishing that the cheques in question were issued by the accused to the complainant for the due discharge of a legally enforceable debt/liability. The courts came to the positive conclusion that the cheques were signed executed and handed over by the accused to the complainant. The courts further found that notwithstanding the further reason shown that the signature in the cheques differ, the real reason was insufficiency of funds. The courts further held that the statutory time table has been scrupulously followed by the complainant. In these circumstances, the courts proceeded to hold that the complainant has succeeded in establishing all ingredients of the offence under Section 138 of the Negotiable Instruments Act in all the four cases. Accordingly, the courts below proceeded to pass the impugned judgments. 9. Before us, the concurrent verdict of guilty, conviction and sentence are assailed on various grounds. We may, at the outset, attempt to specify the grounds of challenge. They are:

1. The finding of fact that the cheques were written, signed and handed over by the accused to the complainant warrants interference invoking revisional jurisdiction of superintendence and correction. 2. The courts below erred in invoking the power under Section 73 of the Evidence Act to compare the signatures in Ext.P1 cheques with other admitted signatures. 3. The courts below erred in coming to the conclusion that the cheques were issued for the due discharge of a legally enforceable debt/liability. 4. The courts below ought to have held that when dishonour by the banker was not on one of the two grounds referred to in Section 138 of the Negotiable Instruments Act, no prosecution whatsoever can lie against the drawer of the cheque. 5. The complainant having chosen to make allegations of the offence punishable under Section 420 I.P.C. in the complaint against the accused, this prosecution under Section 138 of the Negotiable Instruments Act is legally not maintainable. 6. The courts below should have held that the prosecution is barred by limitation inasmuch as notice of demand had not been issued within the period stipulated from the date of first dishonour on the ground, inter alia that the signature in the cheques differed.

7.The sentence imposed is excessive.

10. We have been taken through the oral and documentary evidence available in the case in detail. We have been taken through the complaint, answers given by the accused in 313 examination and all other relevant matters. We have been taken through the order of reference by the learned single Judge also meticulously and in detail. 11. At the very outset, we must remind ourselves of the nature, quality and contours of the jurisdiction of a revisional court. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. In an appropriate case where the concurrent findings of fact are grossly incorrect and perverse, nothing can stop this Court from invoking the revisional jurisdiction of superintendence and correction to interfere with such grossly erroneous or perverse findings of fact. It is unnecessary to refer to precedents which have been copiously cited at the bar and in the order of reference to support the above proposition. The crucial question is whether the findings of fact rendered are so grossly erroneous or perverse as to warrant revisional interference. While considering this question, no court of revision can afford to ignore the fact that normally respect and regard must be given to the findings of fact concurrently affirmed by two courts. The trial court has the advantage of seeing the witnesses perform in the witness stand before it and that evident advantage which a trial Judge has, in the matter of appreciation of evidence, cannot be lost sight of. 12. Having thus reminded ourselves of the nature, quality and contours of the revisional jurisdiction and of the power which undoubtedly is available with the revisional court to interfere with the finding of fact which are grossly erroneous or perverse, we shall now consider the challenge raised on grounds 1 to 3. 13. It is again unnecessary to advert to precedents, it is by now trite and well established that the burden is on the complainant in a prosecution under Section 138 of the N.I. Act to prove his case beyond doubt as is expected in every prosecution for a criminal indictment. In the instant case, we have the oral evidence of PWs.1 and 2 about the execution of the cheques. The learned Counsel for the accused contends that the oral evidence of PWs.1 and 2 do not deserve to be accepted at all. The counsel argues that PW2 was just a casual witness who allegedly happened to be present with the complainant when the cheques were allegedly handed over by the accused. Primarily, we have the oral evidence of PW1. His oral evidence is eminently supported by his ability to produce Ext.P1 cheques (four in number) which are admittedly drawn on cheque leaves issued to the accused by his banker to operate his account. The oral evidence of PW1 gets further support and assurance from the admitted circumstance that there was a financial transaction between the accused and the complainant. Ext.P5 as well as Exts.D1 to D17 eloquently declare that the oral evidence of PW1 that there was monetary transaction between the parties and that some amount remained to be paid by the accused to the complainant is correct. To crown all other circumstances is the crucial circumstance that the accused, even after admittedly coming to know that cheques were presented before his Banker and attempt was made to collect amounts by presentation of such cheques remained silent, mute and inactive. Admittedly, even after coming to know that Ext.P1 cheques had been presented once or twice and were returned, dishonoured the accused did not take any steps to instruct his Banker to stop payment. He did not choose to call upon the complainant not to present the cheques. Even after coming to know that the cheques had been presented, accused had not raised a little finger against the complainant. According to the accused now, the cheques were stolen from his premises. His inaction, even after coming to know that the stolen cheques were being used to withdraw the amounts from his account, is eloquent. All these are circumstances which must weigh with a prudent mind while attempting to decide whether the oral evidence of PW1 can be accepted or not. 14. Of course, there is the evidence of PW2 also. The courts below did not find any reason to reject and discard the evidence of PW2. The question certainly is not whether, we, sitting as an original court for appreciation of facts would have chosen to place reliance on the oral evidence of PW2 or not. The question is whether the revisional powers of superintendence and correction deserve to be invoked to interfere with the findings of fact concurrently recorded by the two courts. The courts below have chosen to accept and act upon the oral evidence of PW1 which is entirely supported by the oral evidence of PW2 and we find that the courts below have not committed any error warranting revisional interference in accepting the testimony and recording such findings of fact. Even if the oral evidence of PW2 were eschewed the court below cannot be said to have committed any error warranting revisional interference in choosing to accept and act upon the testimony of PW1, the complainant. 15. The unsubstantiated version of the accused also does go a long way to assure the court about the acceptability of the oral evidence of PW1. According to the accused, there was a business transaction. He does not dispute that he had a liability to discharge to the complainant. This is evident from the fact that Ext.P5 is not disputed. Exts.D1 to D17 also confirm that fact. 16. The accused surprisingly has not chosen to specify what, if not Rs. 22 lakhs, is the amount, which he is legally liable to pay to the complainant. The accused takes a vague and evasive stand that there is unspecified liability to be discharged but the cheques were not issued by the accused to the complainant. The cheque leaves were stolen by the complainant and misused in an attempt to siphon out funds of the accused. That is the plea. 17. A careful reading of Ext.P3 notice of demand and Ext.P4 reply notice is in this context essential. Ext.P3 is a notice of demand issued by the counsel for the complainant on behalf of the complainant. Ext.P4 is reply issued by the accused himself to the counsel. A total and careful reading of Ext.P4 is essential and when so read, no prudent mind can be left with any semblance of doubt that the accused did not choose to dispute the genuineness of the signatures in Ext.P1 cheques or the fact that they were handed over by the accused to the complainant. Of course, vague and non specific denials are also raised in Ext.P4. The document must and has to be read as a whole and when so read crucial

indications are available. The accused it is crucial did not choose to deny the genuineness of the signatures in Ext.P1 cheques. The purpose for which they were handed over, was of course disputed, though the existence of some liability was not disputed as such. The accused took up a contention that he has an alias name also. Mohan and Devan are two names in which he holds himself out to the world. He sign in both names. In fact, Ext. P4 clearly shows that he receives cheques and drafts in both names. He maintains this stand in Ext.P4 and asserts that he has issued written instruction to his bank that he signs as Devan also. In the four cheques (Ext.P1), he has signed as Devan. The complainant in Ext.P3 in the wake of dishonour on the ground of "signature differs" also had raised an allegation that he had signed differently in the cheques maliciously to defraud the complainant. It is in reply to that, that the complainant had asserted in Ext.P4 that he used to sign in both manner and bank has been informed of such course of conduct adopted by him. 18. In Ext.P4, it is significant that the accused did not raise a contention that the cheques were fraudulently, clandestinely and in a malafide manner removed by the complainant from the possession of the accused. But surprisingly in the course of the trial, we find such a case being advanced. Less said about this weird contention raised by the accused belatedly towards the fag end of the trial, the better. A prudent person cannot for a moment accept this bizarre contention advanced by the accused towards the later stage of the trial. Ext.P4, to our mind, eloquently conveys that this defence sought to be urged in the course of the trial cannot stand scrutiny of a reasonable and prudent mind. 19. The courts below, in an attempt to appreciate the evidence of Pws.1 and 2 that the accused had signed the cheques in their personal presence, did look into the admitted signatures of the accused otherwise available and the signatures in Ext.P1 cheques. It is argued that the courts below totally erred in resorting to this course. Precedents are relied on. 20. We find it unnecessary to refer specifically to Section 73 of the Evidence Act which undoubtedly clothes a court with the requisite powers and the court below cannot be found fault with at all for referring to and comparing the admitted signatures and the signatures in Ext.P1 in an attempt to ascertain whether the oral evidence of PWs.1 and 2 about the execution of the cheques can be accepted. It is of course true that when there is a serious dispute, courts should not arrogate to themselves the power to decide and determine the genuineness of signatures, handwritings and thump impressions without expert opinion by its own naked eye comparison. The court may be referred to as the expert of experts, but no finding of a court should ordinarily rest solely on the comparison made by the court under Section 73 of the Evidence Act in the absence of evidence of any expert. 21. That is not the situation in the facts of the instant case. The court did not choose to peruse the documents and venture an opinion under Section 73 of the Evidence Act at all. Forced to choose between the version of the complainant and the stand taken by the accused, the court was obliged to decide whether the oral evidence of PW1 and of course PW2 can be accepted or not. It is for this purpose that the courts below referred to the admitted and disputed signatures and came to the conclusion that the oral evidence of PWs.1 and 2 can be preferred to the belated stand/version taken by the accused in the course of trial and which was not taken in Ext.P4 notice. 22. It is then contended that an application filed by the accused to send the cheques to the expert before the appellate court was not allowed. The appellate court should have invoked its power under Section 391 Cr.P.C. to forward the cheques to the expert and secure expert opinion, it is contended. One of the easiest ways to secure protraction of trial is to make a request to send the cheques to the expert. Every such request will not be automatically and ritualistically be accepted and allowed by a Judge. Sufficient and satisfactory reasons must be shown to exist to justify such reference to an expert. In the instant case the accused had not made any such request before the trial judge. The totality of the circumstances to which we have already referred, particularly the fact that there is no specific denial of the genuineness of the signatures in Ext.P1 in Ext.P4 - nay there is a veiled admission also, does show convincingly that the request to forward the cheques to the expert at the appellate stage was not bona fide or acceptable. We are unable to agree that the lower (appellate) court has committed any error in not forwarding the cheques to the expert. That would have been an unnecessary and meaningless exercise, according to us. The mere fact that the Banker had included the reason that the signatures differed (not even that the signatures do not appear to be genuine) is, according to us, too feeble and unacceptable a reason to persuade us to find fault with the appellate court for not invoking such powers under Section 391 Cr.P.C. 23. It is next contended that at any rate it has not been established that the cheques had been issued for the due discharge of a legally enforceable debt/liability. We have already concurred with the conclusions of the courts below that the cheques were signed, executed and handed over by the accused to the complainant. It is not the law at all that in a prosecution under Section 138 of the Negotiable Instruments Act, the complainant must establish the original cause of action in meticulous details. That is precisely why the presumption under Section 139 of the Negotiable Instruments Act has been incorporated in addition to the presumption under Section 118 of the Evidence Act which was already there. It is unnecessary to refer to the various precedents that have been cited at the Bar. We need only reiterate that once the signature, execution and handing over of the cheque is satisfactorily proved by the evidence by the complainant, presumption under Section 139 of the N.I. Act comes into play and the same holds the field until the accused discharges the burden on him at least by the inferior standard of preponderance of possibilities and probabilities as applicable in a civil case. 24. Exts.D1 to D17 produced by the complainant themselves show that there has been a monetary transaction between the parties and there was liability for the accused to the complainant. Last trace of doubt, if any on this aspect is sought to be set at rest by the complainant by the proof of Ext.P5 which is not disputed at all. This, therefore, is an eminently fit case where the presumption under Section 139 of the N.I. Act must come into play. The onus must switch to the accused to discharge his burden. 25. The learned Counsel for the accused laboriously contends that there has been an

inconsistency/incongruity between the precise nature of the liability averred in the complaint and the nature of liability which was sought to be proved by evidence in the course of trial. In the notice and in the complaint, it was averred that an amount of Rs. 20 lakhs had been borrowed by the accused from the complainant as a loan. But Exts.D1 to D17 as also the evidence tendered in the case show that it was not a pure and simple transaction of borrowal of money. 26. This must persuade this Court to throw overboard the entire case of the complainant, it is contended. 27. It is true that the averments in the notice and the complaint did not advert to the details. But the case of the complainant is clear. There was a proposal to make a film by name Bhadram. This project was sought to be undertaken by the parties. The project did not come through. There was an agreement that for a total amount of Rs. 20 lakhs, the project shall be taken over by the accused. It is for discharge of this liability that this amount of Rs. 20 lakhs was agreed to be paid. This included the amounts which the complainant had already paid to various persons. The nature of the transaction is now clear from the evidence of the complainant (PW1) and Exts.D1 to D17. In any view of the matter, notwithstanding the innocuous inconsistency between the real nature of the transactions and the pleadings in the complaint and the notice, we are unable to agree that the burden on the accused under Section 139 of the N.I. Act has been discharged. 28. We are in ready agreement that the accused is not bound to adduce any defence evidence. Under Section 315 Cr.P.C, the non-examination of the accused cannot even be commented by the adjudicator. But the burden rests squarely on the shoulders of the accused. Once the presumption under Section 139 comes into play, that burden, we must hold, has to be discharged by the accused. The alleged innocuous incongruity pointed out between the pleadings and the precise nature of the transaction proved is not sufficient to discharge the burden. We do, in these circumstances, come to the conclusion that the finding of the court below that the cheques were signed, executed and handed over by the accused to the complainant, that they were issued for the due discharge of a legally enforceable debt/liability and that the presumption under Section 139 of the Negotiable Instruments Act has not been rebutted by the accused are eminently correct and the same do not warrant interference. The challenge on grounds 1 to 3 is thus rejected. 29. We now come to the question of law raised. That is the 4th ground of challenge. The learned Counsel contends that the banker having chosen to dishonour the cheques on the twin grounds, i.e. "signatures differ and funds insufficient", Section 138 of the Negotiable Instruments Act can have no application at all. According to the learned Counsel, the Banker's endorsement is of crucial relevance. The cheques having been returned for the reason that the signatures differ, the cheques cannot be reckoned as cheques at all. In order to be a cheque, the instrument must be a Bill of Exchange. In order to be a Bill of Exchange, it must bear the signature of the drawer. Inasmuch as the Bank has returned the cheques with the endorsement that the signature of the drawer differs, the cheques cannot be reckoned as cheques and the consequent dishonour is not dishonour of a cheque. At any rate it is not the dishonour for the reasons contemplated under Section 138 of the Negotiable Instruments Act. Counsel contends that in these circumstances the dishonour of the cheques for the reason that the signatures differ also cannot attract culpability under Section 138 of the Negotiable Instruments Act. 30. We think that the question has already been concluded by binding decisions of courts. The Supreme Court in the decisions in Goaplast Pvt. Ltd. v. Chico Ursula D'Souza 2003(2) K.L.T. 16 (SC) and N.E.P.C. Micon Ltd. v. Magma Leasing Ltd. MANU/SC/0306/1999 : A.I.R. 1999 S.C. 1952. has taken the view that notwithstanding the fact that where cheques were dishonoured for the reasons "stop payment" and "account closed", it is open to the court to come to a finding that the real reason was insufficiency of funds and consequently conviction can be entered under Section 138 of the Negotiable Instruments Act. A Division Bench of this Court in Thomas Varghese (supra) has proceeded to observe as follows in paragraph 6:

6. From the argument advanced by the learned Counsel representing the petitioner, it would appear that an offence under Section 138 of the Act should depend on the endorsement made by the banker while returning the cheque unpaid, i.e. only when the banker makes an endorsement that the amount of money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank can an offence under Section 138 of the Act be made out. According to us, such an approach will defeat the very purpose of the enactment. The offence under the Section cannot depend on the endorsement made by the banker while returning the cheque. Irrespective of the endorsement made by the banker, if it is established that in fact the cheque was returned unpaid either because the amount of the money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, the offence will be established. The endorsement made by the banker while returning the cheque cannot be the decisive factor.
31. Though the law has been so stated clearly in this decision, the learned Counsel for the petitioner contends that this does not represent the correct law. According to the learned Counsel, when the Banker returns the cheques for the reason that the signatures differ, these principles cannot apply and the cheques must be held to be not cheques and culpability under Section 138 of the Negotiable Instruments Act cannot be attracted. It is contended that in Thomas Varghese (supra), the Division Bench had not considered the question as to what would happen when the cheques are not cheques at all for the reason that the signatures appearing on the cheques are not that of the accused. 32. We have no hesitation to agree straight away that if it is proved that the signatures are not genuine and there has been no valid execution, the cheques will be no cheques at all and consequently culpability under Section 138 of the Negotiable Instruments Act will not be attracted. But the crucial

question is whether that contention can be accepted. The very important question is whether that question can be decided by the court or the court must reckon itself as a prisoner of the endorsement made by the Banker. 33. In this context we feel that reference to paragraph 3 of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. MANU/SC/0041/2001 : A.I.R. 2001 S.C. 676. 3. The act was enacted and Section 138 hereof incorporated with a specified object of making

a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day would, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the act, the legislature has, in its wisdom, thought it proper to make such provisions in the act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country.
34. It is common knowledge that a Banker will be interested in protecting a valued customer of his. The Banker may not readily make an endorsement that the funds are insufficient. Expressions "refer to drawer" etc. are skilfully employed by the Banker to avoid inconvenience to a valued customer even when funds are insufficient. Culpability under Section 138 of the Negotiable Instruments Act cannot obviously be left entirely to the Banker who makes the endorsement while dishonouring the cheques. The court in order to effectively implement the scheme under Section 138 of the Negotiable Instruments Act must reserve for itself, the power to decide the real reason that prompted the banker to dishonour the cheques. The reason given by the banker may be relevant. But it is for the court on the basis of the materials available before it come to a definite conclusion as to what was the actual and the real cause for dishonour. It is in this context that the courts will be obliged, notwithstanding the nature of the endorsements made by the banker, to go into the question and decide what the real cause of dishonour is. We have already come to the conclusion while discussing grounds 1 to 3 that in this case the cheques bear the genuine signatures of the accused. In these circumstances, the mere fact that the obliging banker had added one more convenient reason cannot be permitted to frustrate and stultify the working of the legislative scheme under Section 138 of the Negotiable Instruments Act. This contention that the endorsement by the banker has to be treated as sacrosanct and the court is bound to accept the same cannot be accepted at all. 35. In the order of Reference, we find that the decision of a learned single Judge in Rejikumar v. Sukumaran 2002 KHC 409 has been referred to. That was a case where the cheque was dishonoured on the ground of insufficiency of funds. Notwithstanding such dishonour and notwithstanding the fact that notice of demand did not evoke any reply, the learned Judge accepted the contention of the accused that the signature in the cheque was not genuine or true. There was evidence in that case to show that the signature was not genuine or true. It is in that context the court observed that where the cheque was dishonoured on the ground that the signature differ (which contention was found to be correct by the court) culpability under Section 138 of the Negotiable Instruments Act will not be attracted. That decision cannot and does not lay down any proposition contrary to what has been laid down by the Division Bench in Thomas Varghese (supra). We have already extracted the relevant passage in Thomas Varghese (supra) which shows that irrespective of the reasons assigned by the banker, the real reason for the dishonour can be and has to be ascertained by the court. That is what happened in Rejikumar (supra). Notwithstanding the fact that the cheque was dishonoured on the ground of insufficiency of funds, the court in that case held that the real reason for the dishonour must be held to be the non genuine signature. Rejikumar (supra) cannot hence help the revision petitioner. 36. Our attention has also been drawn to the two decisions of learned single Judges of this Court, Hon'ble Justice K.R. Udayabhanu in M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) KLD 811 and Hon'ble Mr. Justice M. Sasidharan Nambiar in the unreported judgment in Crl.A. No. 483/1999 have held that the dishonour by the banker with the endorsement "signature differs" cannot clinch the issue. Both the learned Judges have chosen to follow the decision of the Division Bench in Thomas Varghese (supra). In Rejikumar (supra), no reference is seen made to the decision in Thomas Varghese (supra). In any view of the matter, we are satisfied that the dictum in Thomas Varghese (supra) covers the issue squarely. We are in complete agreement with the said dictum and we find no reason to refer to the question to a larger Bench. 37. We do in these circumstances reiterate the law thus. If the signature in the cheque is proved to be not genuine, the instrument cannot be reckoned as a cheque and the same cannot attract culpability under Section 138 of the Negotiable Instruments Act. But the decision as to whether the signature is genuine and whether the execution is proved will have to be taken by a court, the mere fact that the banker returns the cheque for the reason that the signature differs is no reason for the court to mechanically swallow that reason. The courts are obliged to consider whether the real reason for dishonour is insufficiency of funds or not. We may at the risk of repetition proceed to reiterate that if

as a matter of fact the signatures are not genuine and the court finds so, needless to say Section 138 of the N.I. Act would not apply. But the endorsement by the banker is not conclusive. The court will have to ascertain the real reason. The challenge on this ground is in these circumstances, rejected. Ground No. 5. 38. It is contended that the complainant having already alleged in the complaint that the accused had cheated him and has committed an offence under Section 420 I.P.C. by signing differently in Ext.P1 cheques, this prosecution under Section 138 of the Negotiable Instruments Act would not lie. We are unable to accept this contention at all. In fact a careful reading of the notice of demand and pleadings of the complainant clearly show that the signatures were affixed by the accused in the presence of the complainant. When the Banker returned the same with such endorsement that the signatures differ also, the complainant apprehended that the accused must have signed differently to defraud him. This in its crux is the allegation. It will be totally incorrect to say that the complainant had admitted that the signatures were not genuine. Such a specific pleading is not available at all. In the facts and circumstance of this case, the mere fact that in the notice and in the complaint, the complainant alleged mala fides, fraud and an intention on the part of the accused to cheat the complainant, cannot in any way militate against the maintainability of the prosecution under Section 138 of the Negotiable Instruments Act. The challenge on the 5th ground also therefore fails. Ground No. 6. 39. It is contended with the help of the decision of the Karnataka High Court in Nanjundappa v. Hanumantharayappa MANU/KA/8552/2006 : 2008(2) K.L.T. 851 that when the dishonour is on the ground of "account closed" and "the signature differs", the period of limitation must start running from the date of initial presentation. Subsequent presentation cannot give a renewed lease of life for the cause of action, contends the learned Counsel. 40. We have gone through the decision in Sadanandan Bhadran v. Madhavan Sunil Kumar 1998(2) K.L.T. 765 (S.C.) which has clearly held that successive presentation within the permissible period of time is justified and can be resorted to. The cause of action for prosecution can arise only when a notice of demand is issued. Till then within the period permitted by Section 138 of the Negotiable Instruments Act, any number of re-presentations can be done. We are unable to accept the general statement made in Nanjundappa (supra) that in such a case the prosecution must be held to be barred by limitation, if notice of demand is not given within the stipulated period from the date of the original dishonour of the cheque. In the instant case, we find that it is the specific case of the complainant that initial dishonour on the twin grounds was conveyed to the accused and the accused wanted the complainant to represent such cheques for encashment. In any view of the matter, we are unable to agree that the mere fact that "signature differs" was one of the reasons for dishonour of the cheque is sufficient to conclude that the period of limitation will start even before the cause of action has arisen as per the decision in Sadanandan (supra). We respectfully disagree with the dictum in Nanjundappa (supra). The challenge on the sixth ground also therefore fails. Ground No. 7 41. The learned Counsel for the petitioner contends that the sentence imposed is excessive. Simple imprisonment for a period of one month and fine of Rs. 6 lakhs is the sentence imposed in each case. The learned Counsel prays that leniency may be shown on the question of sentence and the substantive sentence of imprisonment may be avoided. 42. The cheques in the instant case bear the date 10/9/1998. A period of about 12 years has elapsed from the date of the cheques. The complainant has been compelled to fight three rounds of legal battle by now. The cheques were for an amount of Rs. 5.5 lakhs each. The complainant has been waiting in the queue for justice for the past about 12 years. In the decision in Anil Kumar v. Shammy 2002(3) K.L.T. 852 one of us had adverted to the principles governing the imposition of sentence in a prosecution under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act was brought into the statute book in 1988. During the initial period of enforcement of this new law, we agree with the learned Counsel for the petitioner that a deterrent, substantive sentence of imprisonment can be avoided. It must be zealously insisted that the complainant is adequately compensated. It is submitted that the civil court is already seized of the matter and a decree as prayed for has been granted in favour of the complainant. The amount has not been paid so far, it is submitted. The matter is pending in appeal, it is reported. Taking all the relevant circumstances, we are satisfied that leniency can be shown on the question of sentence zealously insisting at the same time that the complainant is fairly and justly compensated. The judgment has been rendered by the Additional Chief Judicial Magistrate who has unlimited pecuniary jurisdiction for imposition of fine. We are satisfied that the fine amount can be enhanced. Direction under Section 357(1) Cr.P.C. can also be modified and justice can thus be achieved in the facts and circumstances of the case. 43. In the result:

a) these revision petitions are allowed in part. b) The impugned verdicts of guilt and convictions of the petitioner in all the four cases under Section 138 of the Negotiable Instruments Act are upheld. c) But the sentence imposed is indulgently modified and reduced. The substantive sentences of imprisonment imposed on the petitioner/accused in all the cases are set aside. The sentences of fine imposed are modified. d) The revision petitioner is sentenced in all the four cases to pay a fine of Rs. 7,50,000/- (Rupees seven lakhs and fifty thousand only) each and in default to undergo simple imprisonment for a period of three months each. If the fine amount is realised,

an amount of Rs. 7.4 lakhs in each case shall be released to the complainant as compensation under Section 357(1) Cr.P.C. Of this, the amount of Rs. 5.5 lakhs each shall be credited to the principal amount due under the cheques. Out of the balance amount, an amount of Rs. 1.5 lakhs each shall be credited towards the interest payable. The balance shall be credited as costs and expenses incurred for the prosecution of these three tier criminal proceedings. The revision petitioner shall have time till 1/6/2010 to make payment and avoid execution of the default sentence. If the fine amount is not paid on or before that date, the courts below shall immediately proceed to execute the default sentence. Needless to say, the amounts so paid under Section 357(1) Cr.P.C shall be given due credit if the civil Court's decree is confirmed and attempt is made to execute that decree.
44. It is submitted that an amount of Rs. 10 lakhs is lying in deposit before the court below which was deposited by the revision petitioner as per interim orders passed by this Court. The said amount shall forthwith be released to the complainant. *A reproduction from ILR (Kerala Series) Manupatra Information Solutions Pvt. Ltd.
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MANU/KE/0622/2007 Equivalent Citation: III(2008)BC91, ILR2007(3)Kerala312, 2007(2)KLJ673 IN THE HIGH COURT OF KERALA Crl. M.A. No. 7686 of 2007 in Crl. R.P. No. 116 of 2006 Decided On: 19.07.2007 Appellants: K.R. Aravindakshan Nair Vs. Respondent: Essen Bhankers and Anr. Hon'ble Judges/Coram: V. Ramkumar, J. Counsels: For Appellant/Petitioner/Plaintiff: Gracious Kuriakose, Adv. For Respondents/Defendant: K.S. Sivakumar, PP Subject: Criminal Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act, 1881 - Section 138; Indian Evidence Act - Section 73; Code of Criminal Procedure (CrPC) - Section 391(1), Code of Criminal Procedure (CrPC) - Section 397, Code of Criminal Procedure (CrPC) - Section 401 Cases Referred: O. Bharatha v. K. Sudhakeran and Anr. AIR 1996 SC 1140; State (Delhi Administration) v. Pali Ram AIR 1979 SC 14; Ajit Savant Majagvai v. State of Karnataka 1997 (7) SCC 110; Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat AIR 1970 SC 1; Thambi v. Mathew 1987 (2) KLT 848; State of Kerala v. Ussain 1990 (1) KLT 498 *Case Note: Evidence Act, 1872 (Central Act 1 of 1872) - Section 73--Comparison of signature by Court-Normally Court need not take upon itself the task of comparing the disputed signature with admitted signature or handwriting--In case of slightest doubt Court should refer the matter for expert opinion. Revision Petitioner, accused in a prosecution under Section 138 of Negotiable Instruments Act filed petition to get the disputed signature in a document compared with his admitted signature. He contended that the document produced is fabricated by complainant and that he had not executed such a document. Revision Petitioner averred that the Counsel engaged by him passed away during trial and a relatively inexperienced Counsel conducted the trial and hence did not take steps to send the document for opinion of handwriting expert. Party Respondent resisted the petition and contended that the Court itself compared the signatures and that accused did not dispute the signature in the cheque. The Hon'ble Court compared the signature and found that there is dissimilarity in the signatures and directed the Magistrate to send the signatures for opinion of the expert; Held: When the court itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section 73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. [See O. Bharathan v. K. Sudhakaran and another A.I.R. 1996 S.C. 1140 and State (Delhi Administration) v. Pali Ram A.I.R. 1979 S.C. 14]. As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the sightest doubt, the court should leave the matter to the wisdom of an expert. ORDER V.R. Ramkumar, J. 1. The petitioner herein is the revision petitioner/accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The request of the petitioner in this petition is to get the disputed signature in Ext. P10 compared with the admitted signatures of the petitioner by a handwriting expert of the Forensic Science Laboratory, Thiruvananthapuram. 2. The case of the first respondent/complainant who is a money lender is that the accused borrowed a sum of Rs. 4.25 lakhs as evidenced by Ext. P10 voucher dated 9-4-1999 and towards discharge of the said liability the accused issued Ext. P4 cheque dated 14-3-2002 for Rs. 6,10,000/- and on

presentation of the cheque in the drawee bank it bounced. 3. The revision petitioner inter alia took up the stand that in relation to certain previous transactions with the complainant bank, five blank cheques were taken by the complainant from the revision petitioner and Ext. P4 cheque is one of those cheque and the signatures in Ext. P10 voucher as well as Ext. P4 cheque were forged. 4. The revision petitioner has a grievance that one Advocate Mohan was engaged by him to appear for him in the trial court and the said Advocate expired during the pendency of the case and since a junior advocate was thereafter appearing for the petitioner, he did not take prompt steps for getting the disputed signature examined by an expert. 5. The learned Counsel appearing for the first respondent/complainant opposed the application contending inter alia as follows:

The revision petitioner/accused had not cared to send even a reply to the statutory notice sent by him. No such petition was filed by him before the trial court. Notwithstanding slight discrepancy, the signatures in Ext. P4 cheque and Ext. P10 voucher resemble the undisputed signatures of the accused in his vakalath, deposition (DW1) etc. The trial court has noticed that his own admitted signature in Ext. P9 postal acknowledgment differs from his own other admitted signatures. He did not dispute his signature in Ext. P4 cheque and, therefore, the question of comparing the signatures by a handwriting expert does not arise.
6. I am afraid that I cannot agree with the above submissions on behalf of the complainant. The accused has offered an explanation as to why no reply was given by him to the statutory notice. According to him, after receipt of the said notice, when he approached the complainant, the complainant assured him that he need not take the notice seriously and accordingly took the notice from the accused who was thus disabled from preparing a reply to the notice. He has similar explanation as to why no such petition was filed before the trial court. The counsel whom he had engaged to conduct the case passed away and it was a relatively inexperienced junior who conducted the case. 7. It cannot be said that the signatures in Exts. P4 cheque and P10 voucher resemble the admitted signatures of the accused. I have attempted a comparison of the signature found in Ext. P4 cheque and Ext. P10 voucher with the undisputed signatures of the accused in his deposition as D.W. 1. There appears no similarity at all in the signatures in Ext. P4 and P10 with admitted signatures of the accused in his deposition. In fact, in paragraph, 10 of the judgment of the trial court it is observed that there is some dissimilarity in the signature in Ext. P10 voucher with the signature of the accused in Ext. P4 cheque and with the signatures of the accused in the bail bond, vakalath and deposition etc. No doubt, the admitted signatures of the accused in Ext. P9 postal acknowledgment card does not bear any similarity with his admitted signatures in the vakalath, bail bond and deposition. No two signatures of the same person can ever be identical in all respects. But the essential and unique characteristics of the writings of a person will invariably be present even if those signatures were to be replicated by the same person. The discrepancies in such a case will be within the natural variations. When the courts itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. (See O. Bharatha v. K. Sudhakeran and Anr. MANU/SC/0305/1996 : AIR1996SC1140 and State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 ). As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the slightest doubt, the court should leave the matter to the wisdom of an expert. (Ajit Savant Majagvai v. State of Karnataka MANU/SC/0822/1997 : 1997CriLJ3964 ). 7.1. After comparing the signatures in Exts. P4 cheque and P10 voucher with the admitted signatures of the accused in his deposition as D.W. 1 and other admitted signatures, I entertain serious doubt as to the genuineness of the signatures on Ext. P4 cheque and Ext. P10 vouchee and also the writing of the name of the accused in Ext. P10. It will be unsafe, if not hazardous for the court to attempt a comparison unaided by the scientific opinion of an expert. I am therefore of the view that without getting an expert opinion regarding the above, this Court should not venture to decide the matter on the merits. I do not consider it necessary to set aside the impugned judgments and remit the entire case to the trial court. It will be sufficient to call for a finding from the trial Court. Even though this is a revision it is well settled that the revisional jurisdiction is another facet of the appellate jurisdiction. (Vide Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat MANU/SC/0456/1969 : [1970]1SCR322 , Thambi v. Mathew 1987 (2) KLT 848, State of Kerala v. Ussain 1990 (1) KLT 498). If so, this Court can invoke the power under Section 391(1) Cr.P.C. read with Sections 397 and 401 Cr.PC. and direct the trial Magistrate to send the disputed signature in Ext. P4 cheque and the disputed writing of the name of the accused and the disputed signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. The records in this case shall, accordingly be forwarded to the Chief Judicial Magistrate, Pathanamthitta who shall send the disputed signature in Ext. P4 cheque and the disputed writings including the signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. After receipt of the report from the expert, the Chief Judicial Magistrate shall record his findings in that behalf and forward the findings to this Court within four months of receipt of a copy of this order. Parties shall appear before the trial Magistrate on

8-8-2007 without any further notice. The lower court records shall be forwarded to the trial Court forthwith. Post the above Crl. R.P. No. 12-12-2007. *A reproduction from ILR (Kerala Series) Manupatra Information Solutions Pvt. Ltd.

MANU/DE/0756/2012 Equivalent Citation: 2(2012)BC573 IN THE HIGH COURT OF DELHI Crl. M.C. 3485/2010 & Crl. MA 17131/2010 (stay) Decided On: 01.03.2012 Appellants: Charanjeet Gaba Vs. Respondent: Arjun Lal Ahuja & Anr. Hon'ble Judges/Coram: Hon'ble Mr. Justice M.L. Mehta Counsels: For Appellant/Petitioner/Plaintiff: Mr. G.B. Sewak, Advocate with Ms. Tanmaya Mehta, Advocate For Respondents/Defendant: Mr. Naresh K. Daksh, Advocate Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act - Section 138; Code of Criminal Procedure (CrPC) - Section 386, Code of Criminal Procedure (CrPC) - Section 391, Code of Criminal Procedure (CrPC) - Section 482 Cases Referred: Ramakant Rai v. Madan Rai MANU/SC/0780/2003 : AIR 2004 SC 77 Case Note: Criminal - Acquittal - Section 391 of Code of Criminal Procedure - Offence committed punishable under Section 138 of Negotiable Instruments Act - Held, there was no restriction in wording of Section 391 of Cr.P.C either as to nature of evidence or that it was to be taken for prosecution only or that provisions were only to be invoked when formal proof of prosecution was necessary - There was also nothing in provision limiting it to cases where there had been some formal defects - Appellate Court cannot order de novo trial while allowing adducing of additional evidence - Impugned order set aside - Matter remanded back to Appellate Court - Applications disposed of. JUDGMENT M.L. Mehta, J. 1. This is a petition under Section 482 Cr.P.C preferred by the petitioner assailing an order dated 14.10.2009 passed by learned ASJ, Karkardooma Courts in Criminal Appeal No. 13/2009. Vide this order, the Appellate Court of learned ASJ set aside the judgment of conviction of respondents herein under Section 138, Negotiable Instruments Act (the Act for short). 2. This petition raises a short, but important question of law relating to powers of the Appellate Court under Section 391 Cr.PC. The respondents herein were convicted under Section 138 of the Act by learned MM vide his judgment dated 17.02.2006. They carried the matter in appeal before the Appellate Court of learned ASJ. Before the Appellate Court, they filed an application under Section391 Cr.PC for leading additional evidence. The same was allowed by learned ASJ vide the impugned order. While allowing this application, the learned ASJ set aside the conviction and remanded the case back to learned MM to decide the matter afresh after taking into account the additional evidence. It is this part of the impugned order of setting aside the conviction and directing the learned MM to decide the matter afresh after taking into account the additional evidence that is under challenge by way of instant petition. 3. So far as the reasoning given by learned ASJ regarding the desirability and necessity of additional evidence that was sought to be led by the respondents under Section 391 Cr.PC was not agitated by the respondents. Thus, I need not dwell into this aspect of the impugned order to see as to whether on merits the order of Appellate Court permitting respondents to lead additional evidence was justified or not. Assuming that the additional evidence that was sought to be led by the respondents was desirable and justified in terms of provisions of Section 391 Cr.PC, I propose to deliberate on the powers of Appellate Court under Section 391 Cr.PC as also to the course that was to be followed by the Appellate Court in allowing additional evidence. 4. For appreciating the provisions of Section 391 Cr.PC can be reproduced as under:

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.
5. This section contemplates that the Appellate Court may either record further evidence itself or direct it to be taken by the trial court. The powers of the Appellate Court in permitting recording of additional evidence though unbridled, has to be within the ambit and scope of provisions of this Section. For permitting additional evidence at the stage of hearing of appeal, the Appellate Court needed to satisfy that the additional evidence that was sought to be adduced at that stage was necessary. For recording such satisfaction, it was obligatory to record reasons. The expression, if it thinks additional evidence to be necessary is of wide amplitude. The Appellate Court is empowered to exercise the powers to weed out the infirmities in the course of furthering substantial justice. 6. The recourse to this power cannot be made as a matter of routine on the mere asking of any party. This power needs to be exercised sparingly and for well-founded reasons. Though it is not possible to lay down the detailed situations under which such power could be exercised, but some of the situations for exercise of this power may be illustrated as where due to oversight or difficulties, some evidence was not produced or where either party failed to produce evidence despite opportunity given or where the court on account of some carelessness or ignorance omitted to record some relevant evidence. This would all depend upon the facts and circumstances and the nature of additional evidence that was sought to be led at the appellate stage. Further, there is no restriction in the wording of Section 391 Cr.PC either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions are only to be invoked when formal proof of prosecution is necessary. There is also nothing in the provision limiting it to the cases where there have been some formal defects. 7. The main consideration for adopting this course has to be that the ends of justice have to be achieved and there should be no fritter on justice. Use of this provision has to be also cautiously allowed in the backdrop of the finality of criminal proceedings and also that it is not to be used for filing up the lacunae. Once all this is satisfied and it is found that additional evidence is necessary in the interest of justice and without which there would be failure of justice, the Appellate Court would be justified in permitting production of additional evidence. 8. Thus, so far as the powers of the Appellate Court in allowing additional evidence, I do not see any illegality in the impugned order. The question that arises for consideration is as to the course that was to be followed by the Appellate Court while allowing additional evidence. The Appellate Court could take additional evidence itself or direct the trial court to record the same. This section does not authorize the Appellate Court to set aside the conviction and remand the case back to the trial court for recording the evidence. Such additional evidence is taken in the manner prescribed in Chapter XXIII Cr. PC. The Appellate Court cannot order de novo trial while allowing adducing of additional evidence. The section does not envisage retrial. No doubt, the Appellate Court has the power to reverse the judgment of the trial court under Section 386 Cr.P.C. but that could not be done as a matter of routine and certainly not while disposing of an application under Section 391 Cr. PC. For reversing the judgment of trial court under Section 386 Cr. PC, different considerations and reasons need be examined by the Appellate Court and for which imperative reasons are required to be recorded. (Ramakant Rai Vs. Madan Rai MANU/SC/0780/2003 : AIR 2004 SC 77) 9. The learned ASJ while allowing the application under Section 391 Cr. PC has set aside the conviction order and ordered for the fresh decision. This is where grave error has been committed by the Appellate Court. The right course for the Appellate Court was to keep the conviction order in abeyance by staying its operation and to either record the evidence itself or to direct it to be recorded by the trial court and then to proceed to dispose of the main appeal in the light of such additional evidence. 10. In view of foregoing discussion, the impugned order of learned ASJ is untenable and thus set aside. The matter is remanded back to the Appellate Court of ASJ with the directions to proceed to record the additional evidence in the manner indicated above and then dispose of the appeal on merits. The parties are directed to appear before District & Sessions Judge, Delhi on 24.3.2012 at 2.30 pm. 11. The petition and the applications stand disposed of accordingly. Copy of this order be circulated to all Judicial Officers of District Courts. Manupatra Information Solutions Pvt. Ltd.

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