Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Ajitsinh Chehuji Rathod v. State of Gujarat & Anr., has held that power to record additional evidence under Section 391 of Criminal Procedure Code, 1973 (CrPC) should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence.

What is the Background of Ajitsinh Chehuji Rathod v. State of Gujarat & Anr. Case?

• In this case, the appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) before the Trial Court.
• The Trial Court proceeded to convict the appellant.
• The appellant preferred an appeal before the Principal Sessions Judge, Gandhinagar and during pendency thereof, he filed an application under Section 391 of CrPC for taking additional evidence at appellate stage.
• Such application preferred by the appellant was rejected by the learned Principal Sessions Judge, Gandhinagar.
• Thereafter, the appellant filed the Criminal Application before the High Court of Gujarat which was also dismissed.
• Aggrieved by this, the appellant filed an appeal before the Supreme Court which was later dismissed by the Court.

What were the Court’s Observations?

• The Bench of Justices B.R. Gavai and Sandeep Mehta observed that power to record additional evidence under Section 391 of CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice.

What is Section 391 of CrPC?

About:

• Section 391 of CrPC deals with the appellate court taking further evidence or direct it to be taken whereas the same provision has been covered under Section 432 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). It states that -

(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.

Case Laws:

• In the case of Ashok Tshering Bhutia v. State of Sikkim (2011), the Supreme Court held power under Section 391 of CrPC must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society.
• In Ram Babu v. State Of Maharashtra (2001), the Supreme Court observed Section 391 of CrPC forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice.