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PETITIONER: RAJESWAR PROSAD MISRA

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ANR.

DATE OF JUDGMENT: 06/05/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. RAMASWAMI, V.

CITATION:  1965 AIR 1887            1966 SCR  (1) 178  CITATOR INFO :  RF         1966 SC 356  (7)  R          1971 SC1630  (5)

ACT: Code of Criminal Procedure (Act 5 of 1898) s. 428-Scope of.

HEADNOTE: The  appellant  was  prosecuted for offences  under  s.  408 Indian Penal Code on the ground that he had  misappropriated certain amounts.  His defence was that he had deposited  the money with the cashier of his employer, and he asked at  the trial,  for the production of certain documents which  would show such deposit.  The documents were not produced  because of  the  vagueness of the demand.  The  Magistrate  did  not accent  the oral evidence of the prosecution  and  acquitted the appellant, drawing a presumption against the complainant from  hi.; failure to produce the documents.  On  appeal  by the  complainant under s. 417(3), Criminal  Procedure  Code, the  High Court ordered the production of  those  documents, under  s.  428  of the Code, and  ultimately  convicted  the appellant   after  considering  the  oral  and   documentary evidence. In his appeal to the Supreme Court, the appellant  contended that the High Court acted beyond the jurisdiction  conferred by  s.  428,  in receiving  additional  evidence  which  had enabled the prosecution to improve its case. HELD  :  The High Court ’rightly thought that,  rather  than take a different view of the oral evidence, the interests of justice   and  fair  play  demanded.  that  the   additional evidence, which the, accused himself demanded to be produced at the trial, should be taken. [189 A-B] Section  428 occurs in Chapter XXXI of the Code.  It  speaks of  "any" appeal under that Chapter, and since s. 417(3)  is in  that Chapter, s. 428 applies to the appeal to  the  High Court  against  an order of acquittal.  The  Code  does  not differentiate  between  the ambit of an appeal from  a  com- viction  and that of an appeal from an order  of  acquittal. The  procedure for dealing with the two kinds of  appellants is  identical  Ind  the powers of the  appellate  courts  in disposing  of the appeals though indicated separately in  s. 423, are in essence the same.  The Code contemplates that  a

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retrial may be ordered after setting aside the conviction or acquittal,  under S. 423 if the trial already held is  found to  be unsatisfactory or leads to a failure of justice.   In the same way, the Code gives a power to the appellate  court to  take  additional  evidence, under  s.  428,  which,  for reasons  to  be recorded it considers necessary.   The  Code thus gives power to the -appellate court to order one or the other,  as  the circumstances may require,  leaving  a  wide discretion to it to deal appropriately with different cases. Since a wide discretion is conferred on the appellate court, 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.   The  power must be exercised sparingly and only in suitable cases, when there  would be failure of justice without  such  additional evidence.   Once  such  action is  justified,  there  is  no restriction  on the kind of evidence which may be  received. It may be formal or substantial.  It must, of course, not be received in such a way as to cause prejudice to the accused, as for example, it should not be received as a disguise  for a  retrial or to change the nature of the case against  him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not 179 Availed  of it, unless the requirements of  justice  dictate otherwise. [182 F-G; 186 B-C; 186H-187B: 187 E-F; 187H-188P] Abinash  Chandra Bose v. Bimal Krishna Sen, A.I.R. 1963  316 and  Ukha  Kothe v. State of Maharashtra  A.I.R.  1963  S.C. 1531, explained.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 19  of 1963. Appeal  by special leave from the judgment and  order  dated September  5, 1962, of the Calcutta High Court  in  Criminal Appeal No. 295 of 1960. P. K. Chakravarty, for the appellant. Sarjoo  Prasad, E. Udayarathnam and R. C. Prasad,  for  res- pondent No. 2. The Judgment of the court was delivered by Hidayatullah,  J. The appellant Rajeswar Prosad  Misra,  who has been convicted under s. 408 of the Indian Penal Code  on three  counts  and  sentenced in  the  aggregate  to  suffer rigorous imprisonment for one year and to pay a fine of  Rs. 2,000 (in default 6 months’ further rigorous  imprisonment), was  a  traveling  salesman of Messrs.  Dabur  (Dr.   S.  K. Burman)  Private  Ltd.  The area of his  operation  was  the Suburbs  of  Calcutta and the Mill Area.  His  duty  was  to secure orders from Agents and to effect delivery of goods to them  in  the Company’s vans.  He was  required  to  receive payments  from the agents and to deposit the money with  the cashier  of the Company.  The three charges on which he  was tried  and convicted were : on 10th and 19th February,  1958 die received, on behalf of the Company, sums of Rs. 300  and Rs. 240 respectively, from a firm Isaq and Son.,, and on 3rd May,  1958 a sum of Rs. 1502 from Bombay Fancy  Stores,  but failed to deposit these sums with the cashier.  A  complaint was accordingly filed against him in the Court of the  Chief Presidency  Magistrate,  Calcutta on August 29,  1958.   The charges were framed against him under s. 408 I.P.C. on  July 16,  1959.  The prosecution proved the receipt of the  money by him and his failure to deposit it with the cashier.   His defence  was that he had deposited the amount and  that  the

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case was started against him as a counter-blast to a dispute between him and V. D. Srivastava, sales supervisor, who  had taken  away  certain documents from him and  in  respect  of which  he  had  filed  a  case  against  Srivastava,  S.  N. Mukerjea,  General Manager, R. C. Burman, Managing  Director and others before the Police Magistrate, Alipore.  On August 17,  1959  the  appellant  served  through  counsel  on  the complainant a notice to produce in court on August 20,  1959 the following documents 180 (a)  Sale Book (Mill Area) for 1958. (b)  Collection  Register from 2nd January, 1958  upto  15th July, 1958. (c)  Challans  for  the  year 1958 as per  parcel  no.  etc. (entered in the related sale books) of Agent No. 1026, 1185, 296, 1021 and 181. (d)  Agency Ledger for the year 1958. (e)  Staff Security Deposit Register. (f)  Relevant  register/statement showing accused’s dues  on account of commission earned on the basis of sales  effected by him for the years 1957 and 1958. The complainant’s counsel replied to the notice as follows "Your  request to produce certain books cannot  be  complied with for the objections noted against the items separately. (1)  Sale  Book--this  book cannot be  produced  unless  you specify  either the agent or the parcel no.   On  furnishing particulars the relevant entries will be shown. (2)  Collection  Register-We have objection  to          the other  salesman’s collection being shown to you.  As far  as your client’s returns are concerned they have been filed, if anything  more relating to your client is necessary we  will produce that on getting particulars.  (3)  Challans  for the year 1958-We have  no  objection  to produce them for your inspection. (4)  Agency   Ledger   for   1958-Please   supply      parti oculars--The number of agents must be furnished. (5)  Staff  Security  Deposit Register-This book  cannot  be produced for your inspection.  Only an attested copy of  the page  showing  security  deposit  by  your  client  can   be supplied. (6)  Accused’s commission account-Will be produced.   Please supply  the  particulars  asked for so  that  the  necessary papers  may be produced for your inspection by 22nd  August, 1959." 181 The  documents were not produced.  In the  cross-examination of some witnesses for the complainant a suggestion was  made that  these documents were withheld because they would  have demonstrated that the appellant had deposited the money with the  cashier.  A. C. Burman (P.W. 7) was questioned  and  he replied as follows:-               It......I   know  that  defence   wanted   the               production of Sale Book, Agency Ledger and the               Register containing the commission of accused.               The documents were not produced as it was  not               possible   to   produce   the   same   without               particulars.  There are 20 Sale Books of 1958.               It  is  not  a fact that the  books  were  not               produced as they would show that the complaint               is false . . . . ." The appellant produced no evidence in rebuttal of the prose- cution case.  The Presidency Magistrate recorded a  judgment of  acquittal on March 7, 1960.  He was of opinion that  the only  question  was whether the accused  had  deposited  the amount  with the cashier of the Company.  He held  that  the

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complainant  had not been able to disprove the claim of  the accused  (appellant)  that  he had made  the  deposit.   The learned  Magistrate pointed out that some of  the  documents which  the  accused  (appellant)  had  asked  for  were  not produced  by  the complainant and the benefit of  the  doubt ought to go to the accused (appellant). The complainant then obtained special leave under s.  417(3) of  the  Code of Criminal Procedure from the High  Court  of Calcutta  to appeal against the acquittal.  The  appeal  was heard by S. K. Sen and A. C. Roy JJ.  On June 28, 1962,  the learned  Judges ordered the production of the  documents  in question Ind the taking of additional oral evidence to prove the   documents.   The  order  is  brief  and  it   may   be conveniently set out here :               "After hearing the arguments on both sides  it               appears  to  be  necessary  to  take   certain               additional  documentary evidence for  arriving               at a just decision in the case.  The documents               in  question are the agency ledgers  for  1958               relating  to the selling agents Md.  Isaq  and               Sons   and  Bombay  Fancy  Stores;   and   the               collection   book   Part  I  of   1958   which               supplements the collection book Part 11  which               was   marked  as  Ext.  19.   The   Presidency               Magistrate  S.  N. Sanyal  or  his  successor-               Magistrate  will  please  take  the  necessary               evidence  so  that  the  above  documents  and               registers are formally proved and allow               182               the  accused an opportunity  to  cross-examine               the witnesses proving the documents, and  then               transmit  the records which the registers  and               documents to this Court within a period of six               weeks from the date." The complainant thereupon produced the documents as  ordered and  examined two witnesses in proof of the documents.   The appeal  was then heard ind allowed and the acquittal of  the appellant was set aside and lie was convicted and  sentenced as  already  stated.   The High Court held  that  there  was overwhelming evidence to prove the receipt of the three sums by   the   appellant  and  that  the   additional   evidence demonstrated   clearly  that  the  money  received  by   the appellant  was  not  "deposited  with  the  cashier  of  the Company.   The  appellant has filed this appeal  by  special leave, and it is contended that the High Court acted  beyond the jurisdiction conferred by s. 428 of the Code of Criminal Procedure in receiving additional evidence which has enabled the prosecution to improve its case.  This is the only point which was argued and which we need consider, because, if the evidence  was rightly received, there is no doubt  that  the conclusion of the High Court on fact is correct. The appellant strongly relies upon a decision of this  Court reported  in Abinash Chandra Bose v. Bimal Krishna  Sen  and another(1)  and the respondents upon Ukha Kolhe v. State  of Maharashtra, (2)  another case of this Court which is  to be found  in  the  same volume at p. 153  1.  Both  sides  have referred  us  to  many  cases decided  by  the  High  Courts defining   the  powers  of  the  appellate  Court  to   take additional   -evidence.    The   appellant   contends   that additional evidence could not be taken in the appeal against the order of acquittal in the present case. It   may  be  stated  at  once  that  the  Code   does   not differentiate  between  the  ambit  of  an.  appeal  from  a conviction and that of an appeal from an order of  acquittal except  that an appeal against a conviction is as  of  right

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and  lies to Courts of different jurisdiction  depending  on the  nature of sentence, the kind of trial and the court  in which  it  was held, whereas an appeal against an  order  of acquittal  can only be made to the High Court by  the  State Government or by a complainant (where the case started on  a complaint)  with the special leave of the High  Court.   The matters on which an appeal under the Code is admissible  are stated in S. 418 and they are the same for the two kinds  of appeals.  Such appeals lie on a matter of fact as well as  a matter of law (except in trials by (1)A.I.R. [1963] S.C. 316. (2)  A.I.R. [1963] S.C. 1531. 183 July).   The  procedure for dealing with the  two  kinds  of appellant’s is identical and the powers of appellate, Courts in disposing of the appeals, though indicated separately  in s.  423  are in essence the same.  Under  that  section  the appellate  Court (which means the High Court in  an.  appeal against an order of acquittal.) may-               (a)   in an appeal from an order of acquittal,               reverse  such  order and direct  that  further               inquiry  be made, or that the accused  be  re-               tried or committed for trial, as the case  may               be,  or find him guilty and pass  sentence  on               him according to law;               (b)   in  an  appeal  from  a  conviction  (1)               reverse the finding and sentence and acquit or               discharge the accused, or order him to be  re-               tried  by  a Court of  competent  jurisdiction               subordinate   to  such  Appellate   Court   or               committed for trial, or (2) alter the finding,               maintaining  the sentence, or with or  without               altering the finding, reduce the sentence,  or               (3) with or without such reduction and with or               without altering the finding alter the  nature               of the sentence but, subject to the provisions               of section 106, sub-section (3), not so as  to               enhance the same;               Section 428 next provides:               "428.  (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)   Unless  the  Appellate  Court  otherwise               directs,  the accused or his pleader shall  be               present when the additional evidence is taken;               but  such evidence shall not be taken  in  the               presence of jurers or assessors.               184               (4)   The   taking  of  evidence  under   this               section shall be, subject to the provisions of               Chapter XXV, as if it were an inquiry."               It was at one time felt that the powers of the               High Court were somewhat limited when  dealing               with  an appeal against an order of  acquittal

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             but   that  was  dispelled  by  the   Judicial               Committee  in  Sheo Swarup &  others  v.  King               Emperor(1) in a categoric pronouncement (later               accepted by this Court in many cases) that               "There  is........ no foundation for the  view               apparently supported by the judgments of  some               Courts  in  India that the High Court  has  no               power  or jurisdiction to reverse an order  of               acquittal on a matter of fact except in  cases               in  which  the lower  court  has  ’obstinately               blundered’   or  has  ’through   incompetence,               stupidity   or   perversity’   reached    such               ’distorted   conclusions  as  to   produce   a               positive  miscarriage of justice’, or  has  in               some  other  way  so conducted  itself  as  to               produce  a glaring miscarriage of  justice  or               has  been  tricked  by the defence  so  as  to               produce  a similar result.  Sections 417,  418               and  423  of the Code give to the  High  Court               full  power  to review at large  the  evidence               upon which the order of acquittal was founded,               and  to  reach the conclusion that  upon  that               evidence the order of acquittal should be  re-               versed.   No limitation should be placed  upon               that power unless it be found expressly stated               in  the  Code.  But in  exercising  the  power               conferred by the Code and before reaching  its               conclusions  upon fact, the High Court  should               and   will  always  give  proper  weight   and               consideration to such matters as (1) the views               of  the trial Judge as to the  credibility  of               the   witnesses;   (2)  the   presumption   of               innocence   in  favour  of  the   accused,   a               presumption certainly not weakened by the fact               that  he has been acquitted at his trial;  (3)               the right of the accused to the benefit of any               doubt,  and (4) the slowness of  an  appellate               Court in disturbing a finding of fact  arrived               at by a Judge who had the advantage of  seeing               the witnesses." The appellant relies upon certain observations of this Court in  the  case of Abinash Chandra Bose (2).  The  accused  in that case was prosecuted under s. 409, Indian Penal Code for Misappropriating  an amount belonging to his client who  was the (1) 61 I.A. 398. (2) A.I.R. 1963 S.C. 316. 185 complainant.  Prosecution was based upon a letter said to be written by him which he stated was a forgery.  No expert was examined  by the complainant and the accused was  acquitted. The  High  Court  set  aside the  acquittal  and  ordered  a retrial.   It was held by this Court that this  was  against "all well-established rules of criminal jurisprudence"  that "an  accused  person should not be placed on trial  for  the same  offence  more than once, except  in  very  exceptional circumstances".   Holding  that if the High  Court  did  not think  that "the appreciation of the evidence by  the  trial court   was  so  thoroughly  erroneous  as  to   be   wholly unacceptable,"  "it should not have put the accused  to  the botheration and expense of a second trial simply because the prosecution did not adduce all the, evidence that should and could have been brought before the Court of first  instance" and  which "it was nowhere suggested had been refused to  be received."  Mr.  Chakravarti  contends  that  there  is   no

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essential  difference between the taking of  fresh  evidence under s. 428 or the ordering of a retrial under s. 423, that this  evidence was always available and had, in  fact,  been asked  to  be brought in at the trial but was not,  and  the prosecution should not have another chance whether by way of retrial  or  additional evidence.  The other  side  contends that  in Ukha Kolhe’s case(1) the principles  were  restated exhaustively  and  that we should’ guide  ourselves  by  the statement  of the law laid down there.  In that  case  there was a conviction of the accused under s. 66(b) of the Bombay Prohibition Act.  The report of the Chemical Examiner proved the  existence of alcohol in the sample of blood  but  there were many points in the evidence of experts, which  remained unexplained  and  their  examination  was  perfunctory.   On appeal  the  conviction  was set aside  and  a  retrial  was ordered.   This Court in dealing with the order  of  retrial observed in the majority judgment               "An  order for retrial of a criminal  case  is               made in exceptional cases, and not unless  the               appellate  Court is satisfied that  the  Court               trying  the proceeding had no jurisdiction  to               try  it  or  that the trial  was  vitiated  by               serious  illegalities or irregularities or  on               account of misconception of the nature of  the               proceedings  and on that account in  substance               there  had  been  no real trial  or  that  the               Prosecutor or an accused was, for reasons over               which  he  had  no  control,  prevented   from               leading or tendering evidence material to  the               charge,  and in the interests of  justice  the               appellate Court deems it appro-               (1)   A.I.R. [1963] S. C. 1531.               186               priate  having regard to the circumstances  of               the  case, that the accused should be  put  on               his trial again....... It was pointed out that the Sessions Judge could have  taken recourse to the power conferred by s. 428 and not ordered  a retrial. Section 428 occurs in Chapter XXXI which deals with appeals. It  speaks  of any appeal under that Chapter  and  the  word ’any’ means every one of the appeals (no matter which)  men- tioned  in  the thirty-first Chapter of the  Code.   Section 417(3) is in that Chapter and S. 428 clearly applied to  the appeal  which  was in the High Court.  It  only  remains  to determine the limits (if any) of the jurisdiction and  power of  the  appellate Court (here the High Court)  in  ordering additional  evidence  and whether the limits  so  determined were exceeded by the High Court in the present case. Mr. Chakravarti contends that the discretion under s. 428 is subject to the same conditions as those in s. 423 and  which were  laid down in Abinash Chandra Bose’s case(1).  He  lays special  emphasis  on  the condition  that  the  prosecution should  not be given a second chance to fill up the gaps  in its  case.   He submits that this has been done  here.   Mr. Sarjoo Prasad on the other hand explains the Abinash Chandra Bose’s case with the aid of Ukha Kolhe’s case(1) and submits that  in the latter, this Court gave an exhaustive  list  of circumstances in which an order for retrial can be made  and indicated that in cases falling outside those circumstances, the  appellate  Court has a discretion to  order  additional evidence, if considered necessary. These arguments disclose a tendency to read the observations of  this Court as statutory enactments.  No doubt,  the  law declared  by this Court binds Courts in India but it  should

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always  be remembered that this Court does not  enact.   The two  cases  of  this  Court  point  out  that  in   criminal jurisdiction the guiding principle is that a person must not be  vexed  twice for the same offence.   That  principle  is embodied  in  S. 403 of the Code and is now  included  as  a Fundamental  Right in Art. 20(2) of the  Constitution.   The protection,  however, is only as long as the  conviction  or acquittal stands.  But the Code contemplates that a  retrial may  be  ordered  after  setting  aside  the  conviction  or acquittal (as the case may be) if the trial already held  is found to be unsatisfactory or leads to (1) A.I.R. [1963] S.C. 316. (2) A.I.R. [1963] S.C. 1531. 187 a  failure  of justice.  In the same way, the Code  gives  a power  to the appellate Court to take  additional  evidence, which,  for reasons to be recorded, it considers  necessary. The  Code thus gives power to the appellate Court  to  order one or the other as the circumstances may require leaving  a wide  discretion to it to deal appropriately with  different cases.  The two cases of this Court deal with situations  in which  a retrial was considered necessary by  the  appellate Court.  In the case of Abinash Chandra Bose, this Court held that  the  order  for retrial was not  justified.   In  Ukha Kolhe’s  case  too  the order  for  retrial  was  considered unnecessary because the end could have been achieved equally well  by taking additional evidence.  This Court  mentioned, by  way  of illustration, some of  the  circumstances  which frequently  occur  and  in which  retrial  may  properly  be ordered.  It is not to be imagined that the list there given was  exhaustive  or that this Court was making a  clean  cut between those cases where retrial rather than the taking  of additional  evidence was the proper course.  It is  easy  to contemplate   other  circumstances  where  retrial  may   be necessary as for example where a conviction or an  acquittal was  obtained by fraud, or a trial for a wrong  offence  was held or abettors were tried as principal offenders and  vice versa.    Many  other  instances  can  be   imagined.    The Legislature  has  not chosen to indicate the limits  of  the power  and  this Court must not be understood to  have  laid them down.  Cases may arise where either of the two  courses may appear equally appropriate.  Since a wide discretion  is conferred  on appellate Courts, the limits of  that  Court’s 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  ind  the  power  to  take additional   evidence.   The  former  is  an  extreme   step approximately 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. Additional  evidence  may  be necessary  for  a  variety  of reasons  which  it  is  hardly necessary  (even  if  it  was possible)  to list here.  We do not propose to do  what  the Legislature  has  refrained from doing, namely,  to  control discretion   of  the  appellate  Court  to  certain   stated circumstances.   It may, however, be ’said  that  additional evidence  must  be  necessary not because it  would  be  im- possible  to pronounce judgment but because there  would  be failure of justice without it.  The power must be  exercised sparingly Sup./165--13 188

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and only in suitable cases.  Once such action is  justified, there is no restriction on the kind of evidence which may be received.   It  may be formal or substantial.  It  must,  of course, not be received in such a way as to cause  prejudice to the accused as for example it should not be received as a disguise  for a retrial or to change the nature of the  case against  him.  The order must not ordinarily be made if  the prosecution  has had a fair opportunity and has not  availed of it unless the requirements of justice dictate  otherwise. Commentaries  upon the Code are full of cases in  which  the powers  under S. 428 were exercised.  We were cited  a  fair number  at the hearing.  Some of the decisions  suffer  from the  sin  of  generalization and some others  from  that  of arguing  from analogy.  The facts in the cited cases are  so different  that  it  would be futile to  embark  upon  their examination.  We might have ,attempted this, if we could see some  useful purpose but we see none.  We would be right  in assuming the existence of a discretionary power in the  High Court  and all that we consider necessary is to see  whether the discretion was properly exercised. The  appellant here had received three sums from the  agents and  the  allegation  was that he  had  misappropriated  the amount.  During his trial he asked for certain documents but for  some reason, into which it is hardly necessary  to  go, they  were not brought.  There was oral evidence tending  to show that the money was not credited with the cashier of the Company.   The  Magistrate was not inclined to  accept  oral evidence  and  basing  himself  entirely  on  this  failure, ordered  an  acquittal.   The  High  Court  took  additional evidence  because it was of the opinion that  this  evidence was  necessary.   It  is manifest that, if  the  High  Court wished to rely on oral evidence, fair play at least demanded that  the  accused (appellant) should be given a  chance  of seeing  the  documents  where the deposit by  him  would  be mentioned,  if  made.   Mr. Chakravarti  contends  that  the Magistrate  had drawn a presumption against the  complainant from the failure of the complainant to produce this evidence and  the order of the High Court deprived the  appellant  of the  benefit of the presumption.  There is no force in  this argument  which  may be raised invariably in  all  cases  in which  the powers under S. 428 are exercised.  There  was  a serious  defalcation of money.  The money was  received  and the only question was whether it was deposited or not.  Oral evidence showed that it was not.  The accused insisted  that the  books of account should have been brought and  so  they were brought as a result of the order.  The accused  himself demanded  that  evidence and but for the  vagueness  of  his demand, this evi- 189 dence would have been produced earlier.  Rather than take, a different view of the oral evidence, the High Court  rightly thought  that  interests of justice and fair  play  demanded that  this  additional  evidence should be  taken.   In  our judgment,  the High Court acted within the powers  conferred by the Code. The  appeal.  thus  has  no  substance.   It  fails  and  is dismissed. Appeal dismissed. 190