J.D. Jain, J.
(1) The facts giving rise to this revision petition against order dated 23rd November, 1981 of an Additional Sessions Judge in brief are thatJai Narain and Nand Kishore, respondents 2 and 3 (hereinafter referred as the complainants) instituted a complaint dated 7th of April, 1975 against the petitioner) for his prosecution under Section 420 IPC. It was contended that the petitioner had sold a plot of land bearing No. 18 measuring 213 sq. yards, forming part of khasra No. 1181, situated at village Burari (Delhi) to them vide registered sale deed dated 3rd of May, 1972 and in order to inspire confidence in their mind as regard his title to the said land as bhumidar/owner he showed a certified copy of the judgment dated 12th of May, 1966 passed in his favor by the Court of Shri H.C.Gupta, Sub-Judge 1st Glass, Delhi, in Suit No. 213/65 whereby the petitioner was declared bhumidar/owner of the land in dispute. After about two years the complainants went to the spot but found S/Shri Asa Ram and others in actual physical possession of the land bearing khasra No. 1181. So they approached the petitioner and asked him to deliver actual physical possession. The petitioner put them off saying that proceedings relating to factum of possession were pending in Court of S.D.M. between him and Asa Ram etc. and he was expecting a favorable decision. However, in March, 1975 the Complainants came to know that even the said proceedings had been decided in favor of Shri Asa Ram and others and they were declared to be in actual physical possession of the land in question. On further probe it transpired that the petitioner was neither bhumidar/owner nor was he in possession of the land in dispute at the time when he proposed to sell the same to the complainants and, in fact, the decree for declaration passed in his favor by the Court of H.C. Gupta had been set aside on appeal and the suit was ultimately dismissed by the trial court even before the sale of the plot in question by the petitioner to them.
(2) During the course of preliminary enquiry under Section 202, Code of Criminal Procedure, 1973 (for short the Code) the complainants placed on the record certified copies of (i) judgment dated 12th of May, 1966 ofShri H.G. Gupta, Ex. Public Witness 3/A, (ii) judgment dated 30th of September, 1967 of the Senior Sub-Judge vide which the aforesaid judgment ofShri Gupta was set aside and the case was remanded to the trial court for a fresh trial, Ex. Pw 3/B and (iii) order dated 21st of April, 1970 of Shri Gianinder Singh, Sub- Judge 1st Class, dismissing the suit as having been withdrawn with liberty to institute a fresh suit on the same cause of action. Ex. Public Witness 3/G. The petitioner was summoned vide order dated 10th of August, 1978 to stand trial on a charge under Section 415/420 IPC. Eventually he was convicted of the aforesaid offence by the Metropolitan Magistrate on 11th of March, 1981. The petitioner went in appeal against his conviction and sencence and arguments were addressed by both the parties before the learned Additional Sessions Judge on 18th of November, 1981 when the judgment was reserved. However on 20th of November, 1981 the complainants moved an application stating that the aforesaid documents Ex. Public Witness 3/A, Public Witness 3/B and Public Witness 3/G which had been tendered in evidence and were exhibited during the course of preliminary enquiry were not formally tendered in evidence at the stage of trial by oversight inadvertence. So a prayer was made that the same be admitted in evidence either under Section 294 or Section 311 (Section 311 quoted wrongly) of the Code by way of additional evidence. The prayer was opposed by the petitioner on the ground that the application having been made after the conclusion of the arguments the Court should not entertain the same and that the complainants should not be permitted to fill up the lacuna in the prosecution evidence when they had ample opportunity to adduce their evidence during the course of trial. However, the learned Additional Sessions Judge vide impugned order while allowing the foresaid prayer of the complainants considered it necessary to remand the case. Hence, he accepted the appeal, set aside the conviction and sentence of the petitioner and remanded the case to the trial court with a direction that an opportunity be given to the complainants to formally prove the certified copies of the order/judgment Ex. Public Witness 3/A, Public Witness 3/B and Public Witness 3/G and then re-examine the petitioner under Section 313 of the Code with regard to the said evidence. He gave a further direction to the trial court to allow an opportunity to the petitioner to lead any defense evidence which he may like to adduce in view of the aforesaid additional evidence of the complainants and then decide the case afresh.
(3) The learned counsel for the petitioner has made a two-pronged attack on the order in question. In the first instance, he has urged with considerable vehemence that the power under Section 391 to take additional evidence should not be exercised for the purpose of filling up gaps in the prosecution case when the necessary evidence was available to the prosecution at the trial and the complainants had full opportunity to adduce the same. The result of accepting such a prayer would naturally be to punish the accused for a fault which was not committed by him but by the prosecution itself. Thus, according to him, the impugned order directing admission of additional evidence is prejudicial to the petitioner and the discretion vesting in the appellate court has been improperly exercised. Reliance in this context has been placed by him on a number of reported decisions of various High Courts as also of the Supreme Court, namely, Ramananda Agarwalla and Another v. The State., : AIR1951Cal120 , Bir Singh and Others v. State of Uttar Pradesh, : 1978CriLJ177a , Abinash Chandra Base v. Bimal Krishan Sen and Another, Air 1963 Sc 316, Kashmirn Singh v. State, Air 1965 J&K.; 37, JoginderSingh v. State of Punjab, 1975 Cr. L J. 1604, AshwaniKumar v. State of Haryana,1974 (81) Plr 241 and Bachan Singh v. State of Punjab, 1981 Clr 369. The gist of all these authorities no doubt is that additional evidence can be allowed only in very rare circumstances and it should never be admitted and allowed merely to fill up gaps left by prosecution in the case. Some of these authorities also emphasise that the careless conduct and non-application of mind on the part of the prosecution creating lacuna should not be permitted to be plugged at the appellate stage. Thus, according to the learned counsel for the petitioner, title documents in question were left out because of lack of appropriate interest and non-application of mind by counsel for the complainants and as such the question of inadvertence or oversight on their part does not arise.
(4) Section 391 Sub-section (1) empowers the appellate Court to take or direct to be taken by a Magistrate any additional evidence which it thinks necessary for reasons to be recorded in writing. The object of this Section evidently is to ensure that justice is done between the prosecutor and the person prosecuted. Of course, additional evidence cannot be tendered at the appellate stage as of right and the appellate Court has to exercise the discretion vesting in it to permit additional evidence on sound judicial principles. Surely it is not an arbitrary discretion as is manifest by the provision that 'it shall record its reasons'. However, there can be no manner of doubt that additional evidence can be taken in appeals against conviction as well as appeal against acquittal. On a parity of reasoning additional evidence can be taken for the prosecution or for the defense. The correct legal position has been enunciated by the Supreme Court in considerable detail in Rajeswar Prasad Misra v. The State of West Bengal and Another, Air 1965 Sc 1887. Rajeswar Prasad Misra, the appellant therein, had been convicted of an offence under Section 408 IPC. He was a traveling salesman of M/s. Dabur (Dr. S.K. Burman) Private Ltd. and 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 prosecution proved the receipt of money by him and his failure to deposit the same with the cashier. His defense was that he had deposited the amount and that the case was started against him as a counter-blast to a dispute between him and V. D. Srivastav, sales supervisor. During the course of trial he served a notice on the complainant through Ins counsel to produce in Court certain account books, for instance, sales book, collection register, agency ledger and challans etc. However, the said documents were not produced. The Presidency Magistrate, under the circumstances, recorded a judgment of acquittal. He was of the opinion that the complainant had not been able to disprove the claim of the accused (appellant) that he had made the deposit. The complainant then obtained special leave to appeal. During the course of hearing the learned Judges of the High Court of Calcutta ordered the production of documents in question and the taking of additional oral evidence to prove the documents. The relevant portion of the order is set out here : 'After hearing the arguments on both sides it appears to be necessary to take certain additional documental y evidence for arriving at a just decision in the case. The documents in question are the agency ledger for 1958----------------------------------------------------
(5) The complainants thereupon produced the documents as ordered and examined two witnesses in proof of the documents. The appeal was then heard and allowed and the acquittal of the appellant was set aside and he was convicted and sentenced. It was under these circumstances that their Lordships made the following observations :
'ADDITIONALevidence 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 impossible to pronounce judgment but because there would be failure of justice without it. The power must 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. 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.'
(6) Significantly one of the contentions raised by the learned counsel for the appellant therein was that the Magistrate had drawn a presumption against the complainant from the failure of the complainant to produce the said evidence and the order of the High Court deprived the appellant of the benefit of the presumption but the same was repelled by their Lordships with the observations that:
'THEREis 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------------. 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.'
(7) Applying the criteria laid down in this authority to the facts of the instant case, it is difficult to arrive at a conclusion different from that reached by the appellate court. The gravemen of the charge against the petitioner was that he had sold the plot of land in question by making a false representation that he was bhumidar/owner thereof and in order to inspire confidence in in the complainant's mind he pressed into service the judgment of Shri H. C. Gupta, copy Ex. Public Witness 3/A, However, he deliberatly suppressed the subsequent events, viz., setting aside of the said judgment by the appellate court vide order dated 30th of September, 1967, copy Ex.PW 3/B and the eventual dismissal of the suit as having been withdrawn vide order dated 21st of April, 1970, Ex. PW3/G. willful suppression of true facts which were within the special knowledge of the accused (suppressio veri) is indicative of his dishonest/ fraudulent intent and the proof of the aforesaid documents was absolutely essential to prove that the petitioner had practiced deceit before consideration was paid to him by the complainants for the land in dispute. Indeed the complainants had placed the documents on the record during the course of preliminary enquiry but somehow, apparently byover-sight or inadvertence on the part of the counsel for the complainants, they omitted to tender the same in evidence. This conclusion is well warranted from the fact that in the evidence adduced by the complainants they have adverted to the setting aside of the judgment of Shri H.C. Gupta on appeal and a question was specifically put to the petitioner during his examination under Section 313 of the Code to that effect. The answer given by the petitioner, however, was that he did not know about the judgment passed by Shri Jagdish Chandra, Additional Sessions Judge, on 30th of September, 1967. So there can be little doubt that these documents were very much present to the mind of the complainants' counsel but somehow he omitted to tender them formally in evidence through the complainant when the latter appeared in the witness- box. Evidently, thereforee, it is not a case of non-production of evidence by the prosecution either deliberately or because of lack of appropriate interest by the prosecutor. The prosecution in tendering these documents is not seeking to make out a new case either. Needless to say that Section 294 of the Code dispenses with formal proof of documents the genuineness of which is not disputed and certified copies of judgments etc. of the courts will certainly fall within the category of documents genuineness of which cannot be disputed. Indeed, in the application made by the complainants in the appellate court, it was inter alia, prayed that the petitioner be called upon to admit or deny those documents in terms of Section 294. The Court would be well justified in permitting additional evidence if there is mis-apprehension of miscarriage of justice by a wrong acquittal or wrong conviction. In my view, thereforee, this case is one of those exceptional cases in which the power of the Court should be pre-eminently exercised in favor of the prosecution so that a guilty person does not escape punishment on account of a purely formal and technical flaw in tendering the certified copies of judgments/orders of the courts in evidence. Hence, there is no merit in this contention of the learned counsel for the petitioner.
(8) The next challenge to the impugned order which appears to be quite formidable is that even if the appellate court was of the opinion that additional evidence should be allowed for securing the ends of justice, it had no jurisdiction to order a retrial on that score. Two reasons have been advanced by the learned counsel for the petitioner in support of this contention. The first is that once the accused is put on trial his liberty is put in jeopardy and the prosecution is at liberty to produce any evidence that it likes against the accused. However, if it fails to adduce the necessary evidence it cannot ask the appellate court to order a retrial for giving a chance to the prosecution to fill lip a lacuna in the case and thereby putting the liberty of the accused again into jeopardy. Secondly, it is urged that once an accused is acquitted, on his conviction and sentence being set aside, the Court ceases to have seisin over the case and it cannot order a retrial, the only remedy against an order of acquittal being to challenge it by way of appeal or revision in accordance with the provisions contained in the Code.
(9) As for the first limb of the argument, it is manifest on a plain reading of Section 391 that it does not envisage a retrial because the object of the Section can be very well achieved by the appellate Court by taking additional evidence itself or directing it to be taken by a Magistrate. Sub- Section (2) thereof lays down in unequivocal terms that 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 that appeal. In other words, the appellate court can take into consideration the evidence recorded earlier by the trial Court as well as fresh evidence admitted under Section 391 at the hearing of the appeal. An argument may well be advanced that a retrial in such a case becomes inevitable because opportunity must be afforded to the accused not only to cross-examine the witnesses allowed to be examined by way of additional evidence but also to adduce any further evidence which he may deem fit in defense. Not only that, the additional evidence must be put to the accused by way of supplementary examination under Section 313 of the Code. No doubt, all these safeguards must be observed in order to ensure that there is no prejudice to the accused on account of additional evidence being let in and that there is no miscarriage of justice by denial of proper opportunity to the accused to meet the additional evidence. However, this end can be achieved equally well by taking additional evidence and making a further examination of the accused under Section 313 of the Code by the appellate Court itself or by the Magistrate to whom a direction is made to record the additional evidence. Setting aside the conviction and sentence of the accused and ordering retrial is hardly necessary.
(10) As observed by the Supreme Court in Ukha Kohle. v. The, Stale of Maharashtra, Air 1963 Sc 1531 :
'ANorder 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 appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. If the evidence led at the trial is deficient in important respects that is not a sufficient ground for ordering retrial, if the appellate Court thinks that additional evidence is necessary in the interests of justice and for a just and proper decision of the case the appellate Court should, instead of directing a retrial, exercise its powers under Section 428(1) Criminal Procedure Code 1898.'
(11) In the said case the Supreme Court noticed that the evidence led by the prosecution in the trial Court was deficient in important respects but held 'that could not be a sufficient ground for directing a retrial. It the Sessions Judge thought that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceedings, resorted to the procedure prescribed by Section 428(1) of the Code of Criminal Procedure, 1898. There is no doubt that if the ends of justice require, the appellate Court should exercise its power under the said section.'
(12) Adverting to the decisions in Abinash Chandra Bose (supra) and UkhaKolhe (supra), the Supreme Court amplified the position further in Rajeswar Prasad Misra (supra) in the following words :
'THEtwo 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 b. 403 of the Code and is now included as a Fundamental Right in Article 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 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.'
(13) Incidentally the aforesaid observations of the Supreme Court knock out completely the second limb of the argument of the petitioner's counsel that after having ordered acquittal the Court was not competent to , order a retrial. No doubt, observations to that effect appear in State Madhya Pradesh v. Amba Lal Prem Chand, 1970 Cr.L.J. 427, although the same were made in a different context but Section 386(b) of the Code clearly empowers the appellate Court in an appeal from a conviction to reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction. Hence, this argument is absolutely misconceived and runs counter to the specific provision of law. I here can) however, be little doubt that the learned appellate Court has grievously erred in ordering a remand of this case to the trial Court for a fresh decision after recording the additional evidence of the complainants, re-examining the petitioner under Section 313, Code of Criminal Procedure and affording an opportunity to the petitioner to lead any defense evidence which he may like, in view of the aforesaid additional evidence.
(14) A question may well arise as to what order should be made under the circumstances to secure the ends of justice. The High Court can, in exercise of its inherent power, make such orders as may be necessary to give effect to any order under the Code. The impunged order having been made under Section 391 and not 386 of the Code, it will be just and proper that the appeal is restored to the file of the Additional Sessions Judge for disposing of the same in accordance with law. This was precisely the course adopted by the Supreme Court in Ukha Kohia (supra). Accordingly, I set aside the impunged order and direct the Additional Sessions Judge to hear the appeal again and dispose of it according to law after giving an opportunity to the Complainants to lead additional evidence mentioned above, examining the petitioner under Section 313 of the Code with respect to the same and affording an opportunity to the petitioner to lead evidence in rebuttal if he so desires. The additional Sessions Judge may record the additional evidence himself or he may order the same to be recorded in the trial court as expeditiously as possible. The parties are directed to appear before the appellate court on 4th of October, 1982.