9911796707
TMI Blog2019 (1) TMI 1794X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. There are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people. Whether present was the case for exercise of the power by the Appellate Court under Section 391 Cr.P.C. to permit adducing the additional evidence at the appellate stage? - HELD THAT:- The trust is admittedly the owner of agricultural land in Village Bichaie. The complainant has been in possession of large number of agricultural lands as thekedar of the trust since 1975, according to his own case, which he even mentioned in the First Information Report. The application under Section 391 Cr.P.C. was made in the Appellate Court to accept certified copy of the Trust Deed dated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 and permitting the appellant to prove the said document by leading oral evidence. When the Appellate Court has been given power to lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres of agricultural land of the trust since 1975 in Village-Bichaie as thekedar. Other agricultural land of the trust in three villages of Tehsil-Bilaspur were given to different persons as thekedar. 3.2 The office of Chairman of the Trust is held by the Commandant of Scinde Horse Regiment. On 18.10.1989, a deed of declaration of trust was executed by the Commandant of the Scinde Horse Regiment claiming it to be a new Trust Deed without changing the nature of the trust. In the deed dated 18.10.1989 (registered at Delhi), details of trust land in District- Rampur were also mentioned, which included 474 Bigha land in Village-Bichaie. One of the clauses mentioned in the Trust Deed was that there may be conversion of the trust corpus by unanimous approval of all the trustees. On 18.10.1989, a Resolution No.112 was passed by the trustees where it was unanimously decided to authorise Col. Ravi Inder Singh, Brig. Sukhjeet Singh, MVC, Maj. Gen. B.S. Malik and Ris Maj. Roshanlal to act in the name of the Trust and on behalf of the trustees to sell the trust farm land alongwith buildings thereon situated in villages Bichaie, Phoolpur and Beehat. Resolution also contained other conditions fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Chief Judicial Magistrate, Rampur. 3.8 The High Court while noticing the facts of the case noted from both the complaints that receipt of the amount of ₹ 1,75,000/- from Shri Hargursharan Singh and Shri Fateh Singh is admitted. High Court further noticed that stamp papers worth ₹ 1,75,000/- have been purchased. High Court also noticed that it is admitted fact that permission to sell trust land was applied in the Court of District Judge, but the same was refused on the ground that proper order in that respect can be passed in proceedings under Section 92 of Code of Civil Procedure which was not done. The High Court also noticed that petitioners obtained information from two eminent jurists, including Mr. Soli Sorabji, who opined that the trustees have power to sell the trust land in the instant case. The High Court after noticing the facts had made following observations while deciding the applications:- ..after going through the averments with annexure it appears that there was no dishonest misappropriation of the property by the petitioners as entire sum has been spent for the purposes of purchasing stamp papers. An agreement has been advanced, that stamp paper coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the impugned judgment. Certified copy was filed alongwith the application with a prayer that the document be kindly taken on record and certified copy of the Resolution passed by the trustees was filed, which was prayed to be taken on record. 3.12 Another application under Section 391 Cr.P.C. (17 Kha) was filed on 15.07.2014 praying for summoning the witnesses to prove the Trust Deed dated 18.10.1989 and Resolution No.112. Both the applications came for consideration before the District Judge, who by its order dated 02.11.2015 rejected both the applications. The Appellate Court opined that lower court s record shows that case is very old and it remained pending in the trial for several years. Sufficient opportunity was given to the accused-appellant to produce evidence in defence. No sufficient ground has been shown why these documents were not got proved in the trial court. Hence, the applications deserve to be rejected. 3.13 Against the order dated 02.11.2015, an application under Section 482 Cr.P.C. was filed in the High Court by the applicant, which has been rejected by the High Court vide its impugned judgment dated 17.01.2017. High Court was of the view that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above case has noticed the second Trust Deed as well as Resolution No.112, which were duly proved. It is submitted that it is lapse that the second Trust Deed and Resolution, which were basis for entering into MOU with complainant for sale of trust land could not be proved, whereas they were referred to and were part of the record and proved in other case. Shri Suri submits that Appellate Court committed error in not exercising jurisdiction under Section 391 Cr.P.C. in accepting the documents on record and not permitting the appellant to lead evidence to prove the said documents, which has resulted in failure of justice. Shri Suri further submits that the FIR lodged by the complainant was another example of malicious prosecution of the appellant. He submits that this Court in Parminder Kaur Vs. State of Uttar Pradesh and Another, (2010) 1 SCC 322: AIR 2010 SC 840, while quashing the proceeding arisen out of complaint lodged by Hargursharan Singh has observed that Hargursharan Singh lodged malicious and vengeance full prosecution case against his sister- in-law, which was quashed by this Court. 7. Shri Suri further submits that the Appellate Court for finding out and to ensure th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered on 27.06.1959 at Rampur, which is still valid. In spite of permission having been refused, the appellants have been contending that they have still right to sell the property. Shri Hargursharan Singh further submitted that appellant had committed forgery and fraud. He has referred to Page 28 of the paperbook, Para No.8 and submitted that in para No.8 the word not has been deleted from Clause 8, which shows that the appellants have not come with the clean hands before this Court and they have concealed the true clause of Trust Deed from this Court also. He further submits that this Court should monitor the hearing of the Criminal Appeal pending before Sessions Judge. 10. We have considered the submissions of the parties and have perused the records. 11. In the present appeal, we are concerned only with the rejection of application filed by the appellant under Section 391 Cr.P.C. before the Session Judge in the criminal appeal filed by him against the conviction order, whether the Session Judge committed error in not exercising power under Section 391 Cr.P.C. to permit the appellant to lead additional evidence is a question to be answered. Whether the High Court committed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:- 8. .Since a wide discretion is conferred on appellate courts, the limits of that courts jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. 9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the present case to examine as to whether present was the case for exercise of the power by the Appellate Court under Section 391 Cr.P.C. to permit adducing the additional evidence at the appellate stage. The facts as noted above indicate that the trust is admittedly the owner of agricultural land in Village Bichaie. The complainant has been in possession of large number of agricultural lands as thekedar of the trust since 1975, according to his own case, which he even mentioned in the First Information Report. The application under Section 391 Cr.P.C. was made in the Appellate Court to accept certified copy of the Trust Deed dated 18.10.1989 and the Resolution No. 112 dated 18.10.1989 and permitting the appellant to prove the said document by leading oral evidence. The reference of Trust Deed has been made by the trial court in its judgment dated 07.10.2013. The trial court in its judgment had observed the copy of the Trust Deed dated 18.10.1989 is available on record being paper No.30Kha/46 . The trial court further has observed that it is pertinent to mention here that the accused had not proved the Trust Deed dated 18.10.1989 by way of evidence . 18. What was available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n before the High Court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence can in no manner be said to be malafide motive of the accused, who had been convicted in the appeal, has right to take all the grounds and also lead additional evidence, which in accordance with the Appellate Court is necessary in deciding the appeal. As noted above, this Court has laid down that when it becomes necessary to take additional evidence, cannot be enlisted or enumerated in any fixed formula. It depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. Present is a case where it was due to lapse on the part of the appellant and his counsel that the second Trust Deed, which was basis for taking steps for sale of the land could not be proved. 20. The second observation of the High Court is that the application to take additional evidence at the appellate stage is filed by appellant for delaying the decision of the appeal to eternity, we fail to see that when prosecution took twelve years time in leading evidence before the trial court and the judgment by trial court was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not filed correct copy of the Trust Deed before this Court and are trying to mislead this Court. He has referred to Clause (8) of the Trust Deed at Page 28 of the paperbook, where, according to him, the word not has not been deliberately typed in Clause (8). Shri Suri appearing for the appellant has very fairly submitted that omission of word not in Para No.(8) is only an inadvertent mistake of typing, which could not be checked by the appellant. When the certified copy of the Trust Deed has already been filed before the Appellate Court by the appellant, we fail to see what will be gained by the appellant by reproducing an incorrect clause of the Trust Deed. We are satisfied that non-mention of the word not is only a mistake, which is neither deliberate nor with any intent to mislead this Court. The complainant cannot be allowed to make any capital of such mistake. 24. We, thus, come to the conclusion that in the present case, the Appellate Court has failed to exercise its jurisdiction under Section 391 Cr.P.C. and has committed error in rejecting the applications under Section 391 Cr.P.C. (14 Kha and 17 Kha). The order of the Appellate Court dated 02.11.2015 as well as order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
