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CASE NO.: Appeal (crl.) 636  of  1995

PETITIONER: RAMBHAU & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       26/04/2001

BENCH: Umesh C. Banerjee & K.G. Balakrishnan

JUDGMENT:

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BANERJEE, J.

   There  is available a very wide discretion in the matter of  obtaining additional evidence in terms of Section 391 of the  Code  of  Criminal  Procedure.  A  plain  look  at  the statutory provisions (Section 391) would reveal the same and the same reads as below:

   391.   Appellate  Court  may take further  evidence  or direct it to be taken  (1) In dealing with any appeal under this  Chapter, the Appellate Court, if it thinks  additional evidence  to be necessary, shall record its reasons and  may either  take such evidence itself, or direct it to be  taken by  a  Magistrate,  or when the Appellate Court  is  a  High Court,  by a Court of Session or a Magistrate.  (2) When the additional  evidence is taken by the Court of Session or the Magistrate,  it  or  he shall certify such evidence  to  the appellate  Court, and such Court shall thereupon proceed  to dispose of the appeal.

   (3)  The accused or his pleader shall have the right  to be present when the additional evidence is taken.

   (4)  The taking of evidence under this section shall  be subject to the provisions of Chapter XXIII, as if it were an inquiry.

   A  word  of caution however, ought to be introduced  for guidance,  to wit:  that this additional evidence cannot and ought  not  to be received in such a way so as to cause  any prejudice  to  the  accused.   It is not a  disguise  for  a re-trial  or  to change the nature of the case  against  the accused.  This Court in the case of Rajeswar Prasad Misra v. State  of  West Bengal and another (AIR 1965 SC 1887) in  no uncertain  terms observed that the order must not ordinarily be  made  if the prosecution has had a fair opportunity  and has  not  availed  of it.  This Court was candid  enough  to record  however,  that  it is the concept of  justice  which ought  to  prevail  and  in the  event,  the  same  dictates exercise  of power as conferred by the Code, there ought not

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to  be  any hesitation in that regard.  Be it noted that  no set  of principles can be set forth for such an exercise  of power  under  Section 391, since the same is dependant  upon the  fact-situation  of the matter and having due regard  to the  concept  of  fair play and justice, well being  of  the society.

   Incidentally,  Section  391  forms an exception  to  the general  rule that an Appeal must be decided on the evidence which  was  before the Trial Court and the powers  being  an exception shall always have to be exercised with caution and circumspection  so  as to meet the ends of justice.   Be  it noted  further  that  the doctrine of finality  of  judicial proceedings  does not stand annulled or affected in any  way by  reason of exercise of power under Section 391 since  the same  avoids  a  de novo trial.  It is not to  fill  up  the lacuna  but  to sub-serve the ends of justice.  Needless  to record  that  on  an analysis of the Civil  Procedure  Code, Section  391  is  thus  akin  to Order 41  Rule  27  of  the C.P.Code.

   On  the  factual  backdrop of the matter  in  issue,  it appears  that against an order of acquittal for the  offence punishable under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, the High Court reversed the finding of acquittal and held the accused persons guilty for  the  offence for which they were charged and  convicted them  for the offence under Section 13 (2) of the Prevention of Corruption Act and sentenced the Appellant No.1 to suffer rigorous imprisonment for a period of two years and to pay a fine  of  Rs.5,000/-  and  as   against  accused  No.2,  the imprisonment  period  was for one year together with a  fine amount  of Rs.3000/- and hence the Appeal before this Court. Before  going  into  the  factual   score  further,  it   is convenient  to note at this juncture that during the  course of  hearing of this appeal, the High Court thought it fit to conduct  an  additional  examination  of  both  the  accused persons  with a reasoning as below:  We have examined  them to rectify the irregularity as cropped up and pointed out by the  defence.   The word irregularity in  common  English parlance  means and implies contrary to rule.  This Court in the  case  of The Martin Burn Ltd.  v.  The  Corporation  of Calcutta  (AIR 1966 SC 529) while explaining the meaning  of irregularity  observed:   A point was, however,  made  that Section  131  (2)(b)  apply only to a  cancellation  on  the ground of irregularity, that is a procedural defect such as, absence  of  notice, omission to give a hearing etc.,  There is,  however, no reason to restrict the ordinary meaning  of the word irregularity and confine it to procedural defects only.   None  has  been  advanced.  Such  a  contention  was rejected  and we think rightly in 57 Calcutta W.N.882:  (AIR 1953 Calcutta 773).  That word clearly covers any case where a  thing  has not been done in the manner laid down  by  the statute,  irrespective  of  what   that  manner  might  be. Blacks Law Dictionary defines the word as not according to rule  and not regular i.e.  which stands contrary to  rule. As noticed above, the purpose of introduction of Section 391 (earlier  Section 428) in the statute book has been for  the purpose  of making it available to the Court nor to fill  up any  gap  in  the prosecution case but to oversee  that  the concept  of justice does not suffer.  The High Court  itself records  to rectify the irregularity, the issue therefore, is whether this rectification by an additional evidence is a mere  irregularity  or  goes to the root of  the  issue  and instead  of sub- serving the ends of justice, the same  runs

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counter to the concept of justice.

   It  is at this stage however, the entire factual set  up ought  to  be adverted to.  On 19-01-1989 one  Mr.   Hiwanje lodged  a complaint of abuses and quarrel between  Sangamlal and  his  wife.  The Appellant No.1 being the  Sub-Inspector called  them to the Police Station on 23-1-1989 and on their reporting  at  about  9.30  a.m.,  Appellant  No.1  demanded Rs.1500  from  Sangamlal  for terminating  the  proceedings. With  the  intervention of the Appellant No.2  however,  the demand  was  settled at Rs.1300/-.  The complainant  (PW  1) Sangamlal,  however,  at around 1245 hours lodged  a  report with  the Anti Corruption Bureau and accordingly a Panchnama was drawn.  One Purushottam Manapure was introduced as Panch and  13  tainted  currency notes of  100  denomination  were entrusted  to  the complainant P.W.1.  The raiding party  in the afternoon arranged a trap, it was however unsuccessful.

   The  factual context depicts that on 24.1.1989 at  about 8.30  a.m.,  PW 1 Sangamlal and Panch PW 3 Manapure went  to the  accused  No.1  in  the Police  Station  and  the  later directed  Sangamlal  to  go with the accused  No.2  for  the purpose of exchange of notes.  Certain other factual details though  available on record but can be avoided as irrelevant for  the present purpose, suffice it to note that eventually the   tainted   currency  notes  in  possession   with   the complainant  reached  P.W.6  Raman Wadekar and  the  raiding party  headed  by PW 9 Sub-Inspector Saraf reached the  spot and  seized the tainted currency notes from PW 6 Wadekar  in the  petrol  pump.   The seizure thus took place at  a  spot which  was  2 kilometers away from the Police Station.   The second   Panchnama  was  accordingly   drawn  up  and  after necessary   investigation,   chargesheet   was  filed   upon obtaining  sanction from the Commissioner of Police for  the launch  of prosecution.  The defence of the accused No.1 was of  total  denial and according to him, it is by  reason  of annoyance  and vendetta that has brought the complaint  into light and has no factual support therefor.

   Incidentally, be it noted that P.W.7 Tijare, a neighbour of  Sangam  Lal  (P.W.1) was throughout in  the  company  of Sangamlal.   Coming  back  to the defence  once  again,  the Appellant No.2 also denied such an involvement and according to  him,  since the vehicle of one relation of P.W.7  Tijare was  questioned  on the road, P.W.7 has given false  version against him.

   Records  depict  that  learned Special  Judge,  however, recorded  a  finding  of acquittal on the  ground  that  the sanction as accorded is bad in law since the Commissioner of Police,  though was the appointing authority but no evidence has  been  laid that he was also the disciplinary  authority and  as such the Commissioner is not otherwise competent  to accord  sanction to prosecute.  The High court negatived  it and  we do not see any reason for a different conclusion  in the matter.  Significantly, even the defence counsel, as has been  recorded  in  the judgment, could not support  such  a reasoning.   As regards the merit, the learned Special Judge held  that  the demand and acceptance by the Appellant  No.1 have  not  been  proved.  The learned Special Judge  in  his judgment  did mention the instance of demand on 22nd January and  reached a conclusion that the same has not been  proved but there has been a total omission as regards the demand on 23rd   January.   This  aspect  of   the  matter  has   been elaborately  dealt with by the High Court and the High Court

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upon  consideration  of  all  relevant evidence  came  to  a conclusion   that  taking  into   account  the  version   of Sangamlal, the complainant and that of Tijare (P.W.7), there cannot be any manner of doubt that the prosecution has fully established  the  demand by Appellant No.1 on 23rd  January, 1989.  As regards the demand and acceptance on 24th January, 1989,  the  High  Court also negatived the  finding  of  the learned  Special  Judge  who reached a conclusion  that  the demand  on  24th January, 1989 is completely  untrustworthy. It  is  on this score, it was argued before the  High  Court that  the  factum  of  payment on 24th January  as  per  the version  of  P.W.1  Sangamlal  was not put  to  the  accused persons  in their examination under Section 313 of the  Code of  Criminal  Procedure and as such circumstances cannot  be used  against  the accused.  It is on this count,  the  High Court  conducted additional examination of both the  accused persons in the High Court so as to rectify the irregularity as cropped up and pointed out by the defence.

   Before  the  High  Court   strenuous  submissions   made pertaining  to  the effect of acceptance  of  uncorroborated testimony,  and  the High Court dealt with the issue in  the manner following:

   7.   There cannot be any debate on a broad proposition. Judicial  prudence ordinarily look for a corroboration  from an  independent witness, to the version of the  complainant. Undisputedly  the Panch does not render corroboration to the version  of  the  complainant  on the aspect  of  demand  on 24.1.1989.   However, as discussed the circumstances and the facts  of  the case are peculiar.  In the instant case,  the demand  and  acceptance did not take place then  and  there. After  the  demand, as claimed, the seizure took place at  a distance  of 2 kilometers from the Police Station from PW 6. Between  demand and seizure, the peculiarity of the case  is that   there  were  intervening   events.    Moreover,   the prosecution  does not claim direct acceptance by the accused No.1.   We,  therefore,  propose  to  examine  whether   the circumstances  which  have  been brought on  record,  render corroboration to the demand and acceptance.

   We  may mention at this stage that the accused No.2 only in  his statement under Section 313 of the Code of  Criminal Procedure,  tried  to suggest that owing to his  venture  of kicking  PW  1  Sangamlal,  he lo dged  a  false  complaint. However,  during  the  entire   cross-examination  no   such allegation  was made to PW 1 Sangamlal.  The motive as tried to   be   attributed,  is  imaginary   and  by  way  of   an afterthought.

8.

   9.   During the course of arguments or even otherwise in the cross-examination it is not explained as to how the PW 1 complainant  Sangamlal  approached  the   accused  No.2  for getting  the notes changed.  No suggestion was made to PW  1 Sangamlal  in  cross-examination on behalf of accused  No.2. There  was no even formal inquiry as to why and what for the complainant needed the change of the notes.  It was also not suggested  that the complainant in any manner was in need of the  notes  of  smaller denominations.  As such  the  entire claim as put forth by the accused No.2 is completely infirm. It  goes to suggest that he took the mission of getting  the notes  changed  as  decided earlier.  His  defence  that  he happened  to  be in Shere Punjab Hotel and incidentally  the

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complainant  came  there,  is patently false.   Taking  into account  the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4 Dongre, PW 5 Hadke, PW 6 Wadekar and PW 7 Tijare it is fully established  that  it  is  the accused  No.2  who  took  the complainant for getting the notes exchanged.  Even otherwise the defence has not seriously challenged the testimony of PW 4 Dongre, PW 5 Hadke and PW 6 Wadekar in this behalf.

   Mr.   Verma,  the learned Senior Advocate very  strognly contended  that High Court had no authority or  jurisdiction to  examine the accused persons in the High Court to rectify the  defect  and  the lacuna in the prosecution.   The  High Court  records  it  to  be a mere irregularity  and  on  the complexities  of  issue, we do not see any reason as to  why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The   omission  cannot  but  be   ascribed  to  be  a   mere irregularity.   The  High  Court on the  basis  of  relevant evidence  on  record  held that the  prosecution  has  fully established  the demand by the accused No.1 on 23rd January, 1989.   It  is the demand of 24th January which was said  to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure  of the tainted notes on 24th January, completes the offence,  as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to  the root of the matter.  It is not a defect incurable in nature  but a mere irregularity which the High Court thought it  fit  to  cure,  as  such we do  not  find  any  material objection  to  such a method as stands adopted by  the  High Court.   The  irregularity has been cured.  The  prosecution has  clearly established that the Appellant No.1 is a public servant  and  in  discharge of his official  duties  made  a demand  of  Rs.1300/-  from  PW 1 Sangamlal  as  an  illegal gratification  and  taking into account the evidence  as  is available on record, the accused No.2 also has played a very significant  role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant  No.1,  it  cannot  thus  but  be  said  that  the Appellant  No.2 substantially abetted the crime and thus  we record  our agreement in the finding of the High Court  that the accused persons are guilty of the offence for which they were  charged  and  question  of   recording  a  finding  of acquittal  in the matter cannot by any stretch be sustained. In  that  view  of  the matter, this  Appeal  fails  and  is dismissed.