IN THE  SUPREME COURT OF INDIA                CRIMINAL  APPELLATE  JURISDICTION                                   CRIMINAL APPEAL NO. 719  OF 2009   

(Arising out of SLP(Crl.) No. 7576/2008)    

Ajay Kumar Garg ..   Appellant(s)                   

  Versus

Gaurav & Anr. ..   Respondent(s)                                                           O R D E R

 Leave granted.

This appeal is directed against order dated 21st August, 2008, passed by the  

High Court of Judicature at Allahabad in Capital Case No. 3261 of 2007.  By the  

impugned order, during the course of hearing of the appeal preferred by the convict,  

respondent No. 1 in this appeal, the  High Court has ordered that Kalicharan, who  

according to the evidence of P.W. 2 and P.W. 6 had apprehended the said respondent  

be summoned for giving evidence.  The High Court has also summoned the officer-in-

charge  of  Pushpanjali  Hospital  where  the  two  deceased  ladies  had  been  

examined/treated, with all the material records for its examination.  Aggrieved by the  

order, the complainant is before us in the appeal.

We have heard learned counsel for the parties.

Learned counsel  for the appellant  has submitted that while exercising its  

power under Section 391 of the Code of  

..2/-

Crl.A. 719/2009...contd..

: 2 :

Criminal Procedure, 1973 (for short"the Code"), the High Court has failed to record  

any  cogent  reasons  necessitating  recording  of  additional  evidence  at  this  stage,  

particularly where the said Kalicharan has filed an affidavit before the High Court,  

in favour of the convict, inter alia stating that he had not seen any incident and had  

been wrongly made an eye-witness.  Learned counsel for the State supports the stand  

of the appellant.

Having  perused  the  impugned  order,  we  are  of  the  opinion  that  the  

impugned order, cannot be sustained.

Section 391 of the Code, insofar as relevant for the purpose of this appeal  

reads as follows :

"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)-(4)....."

A bare reading of the provision makes it clear that the Section invests the  

appellate Court with the power to record additional evidence, provided it is satisfied,  

for the  

..3/-

Crl.A. 719/2009...contd..

: 3 :

reasons to be recorded, that additional  evidence in the matter is necessary.  Since

Section 391 of the Code is an exception to the general rule that an appeal should be  

decided on the evidence which was before the Trial Court, power under the Section  

has to be exercised with caution and circumspection so as to meet the ends of justice  

and not as a matter of course.   

In Rambhau and Another vs. State of Maharashtra, (2001) 4 SCC 759, this  

Court has held that the object of Section 391 is not to fill in lacuna, but to subserve  

the ends of justice.  Admission of additional evidence should not operate in a manner  

prejudicial to the prosecution or the defence.  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.   Thus,  recording of  reasons  is   a  

condition precedent for exercise of power under Section 391 of the Code and an order  

bereft  of  reasons  would  tantamount  to  non-application  of  mind,  rendering  the  

exercise of power under the Section, bad in law.

Having  gone  through  the  order,  we  are  convinced  that  the  aforenoted  

salutary principles  have not been kept in view by the High Court while issuing the  

impugned directions.  

..4/-

Crl.A. 719/2009...contd..

: 4 :

The   question  of  summoning  of   Kalicharan  for  recording   his  evidence  at  this  

juncture, particularly, when he is stated to have filed an affidavit, refuting the stand  

of the prosecution, in our view, is a serious issue insofar as criminal jurisprudence is  

concerned  and  therefore  required  deeper  consideration,  which  is  missing  in  the

impugned order under challenge. In our opinion, the impugned order suffers from  

the vice of non-application of mind and deserves to be set aside on that short ground  

only.

Consequently, the appeal is allowed; the impugned order is set aside and the  

matter is remanded to the High Court for fresh consideration of the issue regarding  

additional evidence.  

                                       ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA  ]                              

            NEW DELHI, APRIL 13, 2009.