Judgment:
K.C. Jagadeb Roy, J.
1. The present revision has been filed challenging the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Puri in Criminal Appeal No. 65 of 1991 convicting the petitioners under Sec, 498-A/34 of the Indian Penal Code and sentencing them to undergo two years R. L and to pay a fine of Rs. 5,000/; in default to undergo R I. for six months and convicting the petitioner No. 2 Under Section 406, I PC, and sentencing him to undergo R. I. for six months. The appellate Court while setting aside the order of conviction and sentence passed against the petitioners Under Section 4 of the Dowry Prohibition Act had maintained the order of conviction and sentence passed by the Chief Judicial Magistrate, Puri in G. R. Case No. 1396/89.
2. As is set out in para-14, 15 and 16 of the memo of revision. the petitioners allege in this Revision that they have been greatly prejudiced as the appellate Court had refused their prayer for permission to adduce additional evidence Under Section 391 of the Code of Criminal Procedure in the appellate Court. The facts involved in this case briefly stated are as follows :
The marriage, was solemnised between the petitioner No. 2 and the informant (PW 2) on 30-6-1986. It was alleged that the PW 2 was driven away from the matrimonial home, by her husband on 21-7-1988 at the instigation of her husband's elder brother-petitioner No. 1. Petitioner No. 2 thereafter filed a suit for divorceon 29-8 -1988 against his wife in the Court of the Subordinate Judge, Jagatsinghpur (now pending in the family Court), which was numbered as O. S. No. 14 of 1988. The informant-wife (PW 2) appeared in the divorce proceeding through her Advocate Sri M. N. Das and filed her written-statement on 22-4-1989. During the pendency of the divorce suit, the wife (PW 2) filed a criminal case against the petitioners Under Section 498-A of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act and acase Under Section 379 of the IPC against the petitioner No. 2 (husband). An application Under Section 391 of the Code of Criminal Procedure was filed by the petitioners in the appellate Court in Criminal Appeal No 65/91 for further examination of PW 2, PW 14 (1. O.) and examination of one Bhaskar Chandra Dash who was not a witness but who later on filed an affidavit stating that he is a stenographer in the office of the natural father of P W 2 who is the Executive Engineer and had typed out the entire statements recorded Under Section 161, Cr PC by using his office type-writer machine in the office of the Executive Engineer at the instruction of PW 12. The appellants made a prayer that such other witnesses may be examined to prove the mala fides in the investigation which according to them has completely vitiated the proceeding. It is the case of petitioner No. 2 in the said petition that he had received the letter from one Pratap Kumar Puhan who was examined as PW 4 in the case along with his affidavit disclosing that some lettets were manufactured by him and he had deposed falsely at the instance of PW 12, the natural father of the informant PW 2. On 22-9-1993 the petitioners filed another application for additional evidence by way of crossexamination of PW 4 and to prove The assertions made in the affidavit of PW 4. In the judgment dated 4-10-1993 the appellate Court had rejected the prayer for additional evidence. During the hearing of the present revision, the sole contention of the learned counse for the petitioners is that the accused is entitled to a fair trial and once the Court gets information which may shake the credibility of a witness and comes to know of information which may throw doubts about the fairness of the investigation, the Court cannot ignore such information and must act accordingly. The assertions made in these two petitions are quite vital and if found to be correct would obviously affect the fair trial, accordingly the Court should not have ignored it.
Section 391 of the Code of Criminal Procedure reads as follows :
'Section 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 shah thereupon proceed to dispose of the appeal). xx . xx'
Section 311 of the Code of Criminal Procedure empowers the Court to summon a material witness which is also another step in this regard and reads as follows :
'Sec 311. Power to summon material witness, or examine person present :Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned an a witness, or recall and re-examine any person already examined ; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case'
Section 391 read with Section 311 of the Code of Criminal Procedure leaves no room for doubt that the appellate Court is not devoid of any power and has the duty to allow additional evidence if it considered that necessary by recording the reasons and may either take such evidence itselfor direct to be taken by a Magistrate but when the appellate Court is the High Court itself, it can so direct to be recorded by the Court of Session or some other Court. Section 311 of the Code of Criminal Procedure is very emphatic in stating that any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined ; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The allegations in the first petition that one Bhaskar Chandra Dash who is a stenographer of PW 12, the natural father of the informant had typed the statements purported to have been recorded under Sac, 161, Cr PC in the office of PW 12 at the instance of PW 12, is a serious infirmity in the investigation because the Section 161, Cr PC statements are supposed to have been recorded by the I. O. by himself. In the second petition dated 22-9-1993 filed by the petitioner, it was asserted that PW 4 who was examined as a witness for the prosecution had filed an affidavit disclosing that he had deposed falsely at the instance of PW 12, the natural father of the informant and he was the person by whom many letters were manufactured for the purpose of use in the case. The Court should not have ignored such affidavits and was required in law to allow the prayer of the petitioner to examine Bhaskar Chandra Dash and to re-examine PW 4 and in that connection other witnesses, namely, the I. O. (PW 14), the informant (PW 2) or any other witnesses which the Court considered necessary, for the purpose of proving the materials set out in those affidavits and having not been done, the entire order of conviction and sentence passed by the Courts below against the petitioner is vitiated. The petitioners as appellants in the Court below obviously had a right in law to utilise the evidence recorded Under Section 161, Cr PC for the purpose of contradiction of the statements recorded during the trial.
3. In 3 case reported in AIR 1965 SC 1888 (Rejeswar Prasad Misra v. The State of West Bengal and Anr.cc), the apex Court was of the view that if trial already held, is found to be unsatisfactory or leads to a failure of justice, the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be). The lower appellate Court rejected those two applications of the petitioners by stating in para-17 of the judgment that retrial is not to be ordered merely to enable the . prosecution to adduce additional evidence for filling up lacuna and in para-18 of the judgment, it has been stated that if such petitions were allowed it would have prolonged the proceeding and re-opened the case with a view to get rid of the impending punishment and has further held that in the event all these petitions were allowed and evidence will be further led, it might nullify the evidence already recorded and, therefore, the irregularities being technical in nature, an order for taking up additional evidence did not arise. I have already indicated that the approach of the lower appellate Court in considering these two affidavits as well as the two petitions wa3 not in accordance with law. The findings of the apex Court in paragraphs 1, 6, 8 and 9 are synopsised in the placitum (a) of the report in AIR 1965 SC 1888 which reads as follows :
'If the trial already held is found to be unsatisfactory or leads to a failure of justice, the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be). Similarly, the Code gives power to the appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessarily. Thus the Court 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 Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. Once such action is justified there is no restriction on the kind of evidence which may be received. 11 may be formal or substantial, It must not, however, 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.'
In my opinion, therefore, the examination of Bhaskar Chandra Dash whose examination was prayed for in the affidavit dated 7-4-1993 sould have been allowed so also the petition to recall PW 4 for further examination. i accordingly set aside the order of conviction and sentence passed by the appellate Court in Criminal Appeal No. 55/91 dated 4-10-1993 and remand it to the appellate Court for disposal of the said appeal a fresh alter taking the evidence of Bhaskar Chandra Dash and necessarily that of PW 2, PW 12 and PW 14-(the I. O.) and such other witnesses as may be considered necessary in the opinion of the Court in connection with the proof of the allegations made in the petition dated 7-4-1993 and also after examining PW 4 on being recalled and after examining such other witnesses as the Court may consider for necessary consideration o1 the evidence that may come from PW 4 on his re-examination and shall dispose of the appeal thereafter in accordance with law.
The Criminal Revision is allowed. This order also disposes of the Misc. Case No. 632/93 tiled by the petitioners tor permission to adduce evidence by cross-examining the PW 2 and PW 14 and me examination of Bhaskar Chandra Dash.