S.N. Bagchi, J.
1. In this revisional application only one substantial point of law was argued by Mr. Mukherjee, learned Counsel for the petitioner. He submitted that the conviction and sentence passed by the learned Court of appeal below was unsustainable in law only on the ground that the learned Sessions Judge had no jurisdiction to allow additional evidence to be taken at the appellate stage disregarding the two decisions of the two Division Benches presided over by Harries, C. J.. one in Special Bench case in Ramananda Agarwalla v. The State : AIR1951Cal120 (FB) and the other in Ramanlal Rathi v. The State : AIR1951Cal305 . As the facts stand the principles established by those two decisions of the Special Bench and the Division Bench of this Court presided over by Harries, C. J. are aptly applicable. What happened was this. On the last date of the examination of the prosecution witnesses the medical officer who examined the alleged victim was not produced by the prosecution and the case for the prosecution was closed. The learned Magistrate convicted the accused appellant Under Section 338 of the Indian Penal Code and sentenced him to pay a fine of Rs. 300/- only in default to suffer simple imprisonment for three months. At the appellate stage, on the grievance made by the appellant's lawyer before the learned Sessions Judge that though the allegation was that the appellant caused injury, which resulted in the loss of three teeth of the victim, the medical officer who examined and treated the victim was not examined in this case. The learned lawyer, therefore, submitted that in such a circumstance, the appellant could not show by cross-examining the medical witness that the act of the appellant did not cause the injury complained of. Then the learned Judge consulted the record and found that though the victim had been admitted to a hospital medical witness had not been examined in this case. The learned P. P. submitted that a wrong medical officer was summoned and so the doctor who did not examine the victim could not give evidence. In the circumstances as time was not available to the prosecution, medical evidence of a doctor could not be adduced. The learned Sessions Judge thought that for the sake of justice the evidence of the medical witness named in the charge-sheet should be brought on record. Then he observed
negligence or inadvertence of the prosecution cannot be allowed to effect miscarriage of justice and similarly the negligence or inadvertence of the prosecution cannot be allowed to accrue against the benefit to the accused, in this case, appellant Josodanandan Mukherjee. With a view to meet such a contingency when it arises the Criminal P.C. has made provision in Section 428. Under that section an Appellate Court may take or direct to be taken further evidence. Therefore in exercise of the power given Under Section 428, Criminal P.C. I hereby direct the learned Magistrate of the Court below to take as additional evidence the evidence of the doctor who examined the victim in this case and send such evidence to this Court for disposal of this appeal.
Thereafter the learned Magistrate took evidence of the medical officer who examined the victim and forwarded the recorded evidence to the learned Sessions Judge who relying on the evidence of the medical witness and another witness convicted and sentenced the accused appellant Under Section 338 of the Indian Penal Code. The extract quoted from the order of the learned Sessions Judge would at once show that the learned Sessions Judge ignored the principles established by the two decisions of this Court, one of a Special Bench and the other of a Division Bench presided over by Harries, C. J. For the State it was argued by Mr. Bhattacharjee, learned Counsel for the State that perhaps on the date when the prosecution case was ordered to be closed the prosecuting agency had no time to apply for adjournment of the case for production of the medical witness concerned. There is no petition in the record of the Magistrate to show that the prosecuting agency had ever applied its mind to the necessity of producing the real medical officer who actually examined the victim in the hospital. If the prosecuting agency applied its mind diligently and if applied before the learned Magistrate to produce the medical officer duly summoned, certainly the learned Magistrate would have considered such a prayer. So the prosecution was utterly negligent and utterly careless in performance of its mandatory duty laid down by law.
2. Mr. Dutta, learned Counsel for the opposite party submitted that the carriage of the prosecution was at the hand of the public prosecutor and not his client and that the negligence of the public prosecutor might have impelled the learned Judge to pass the order in the interest of justice. It is clear in the learned Sessions Judge's order that in the interest of justice he passed the order. But the learned Judge forgot the two decisions of this High Court and he failed to consider that on the date the prosecution case was closed, the learned P. P. had not applied before the learned Magistrate to bring the medical witness properly summoned before the court. So, argument of a lawyer is not a statement of fact. The fact should have been stated at the earliest opportunity by a petition wherefor the other party could have made submission on the circumstance disclosed in such petition and if such petition would have been filed the learn- ed Magistrate could have exercised its discretion according to law. If he failed to exercise its discretion then only the question would have arisen for the learned Judge to consider whether in the appellate stage he would order additional evidence to be taken provided the circumstances fell within the strict provisions of law as explained by their Lordships in the two cases decided by their Lordships of the Special Bench and of the Division Bench to which I have already made a reference. The learned P. P.'s argument was that there was no time for the prosecution to apply for adjournment of the case. I cannot follow how a P. P. could address such an argument before a court of law. That was an open trial. Parties knew their position as it was developing at the stage of the trial. If the public prosecutor was awake he would have at once prayed either orally or in writing that the case should be adjourned. This very important fact was lost sight of by the learned Sessions Judge. To be precise, I should quote the observation of Harries, C. J. the relevant observation, appearing at page 582 of (1951) 55 Cal WN 572 : A.I.R. 1951 Cal 120 (FB). This observation lays down a very salutary principle which should guide all the criminal courts in West Bengal.
The prosecuting authorities should not be allowed one or more opportunities to fill gaps in the case for the prosecution. For example, if in this particular case the prosecution failed, on this remand to the Magistrate, to call all the evidence required, would they be entitled to a second remand, or a third, or a fourth for that matter? It appears to me that in normal cases the prosecution must, when they launch the prosecution and bring the matter to Court, prove their case beyond doubt and it is only in very rare circumstances that additional evidence can be allowed. For example, if evidence which was admissible was wrongly rejected by the trial Court, such evidence could be admitted. Again if the existence of available evidence was unknown at the time the proceedings took place in a trial Court, then possibly such evidence might be admitted, though it is unnecessary to decide in this case whether it should or should not be admitted. However. I think it is clear that additional evidence should only be admitted in exceptional cases and it should never be admitted and allowed merely to fill up gaps left by the prosecuting authorities in this case. Additional evidence in civil cases in similar circumstances is not permissible and I am wholly unable to see why greater latitude should be given to the prosecuting authorities than to parties in a civil suit. In my view where the prosecution has failed to establish its case the only proper order is one of acquittal.' To guide the courts below Harries, C. J. has pointed out certain examples under which the additional evidence should be ordered by a Magistrate, such as, 'if evidence which was admissible was wrongly rejected by the trial Court, such evidence could be admitted' and
Again if the existence of available evidence was unknown at the time the proceedings took place in a trial Court, then possibly such evidence might be admitted, though it is unnecessary to decide in this case whether it should or should not be admitted.
Mr. Dutta's submission was that the court of sessions considered that it should be admitted but the court of sessions lost sight of the fact that the evidence, that was available and which ought to have been brought for being produced at the time when the case was closed the P. P. did not apply its mind and did not pray orally or in writing before the learned Magistrate to adjourn the case to enable the prosecution to produce the medical witness who was to have been examined but had not been examined by the prosecution whatever may be the reasons therefor.
3. The first proposition laid down by Harries, C. J. does not apply in this case. The second proposition is out of the place when the prosecution itself did not, before the trying Magistrate, apply for time for the production of the witness who was to have been produced by none but the prosecuting agency and not by Mr. Dutt's client. It is further laid down that 'additional evidence should only be admitted in exceptional cases and it should never be admitted and allowed merely to fill up gaps left by the prosecuting authorities in this case.' Mr. Dutta submitted that it was an exceptional case since wrong medical witness was summoned and it was detected at the time when the prosecution case was closed. Therefore, it was an exceptional case under which the learned Sessions Judge ordered that the additional evidence should be taken. But I have already pointed out that it cannot be an exceptional case. On the date when the prosecution was closed the public prosecutor must be presumed to be very alive to the stages at which the prosecution case was proceeding and had he not been so alive he must thank his stars. The real medical officer who examined the victim had not been summoned though it was the bounden duty of the prosecution in law to apply orally or in writing before the learned Magistrate and to pray for an issue of sum- mons through the Chief Medical Officer of Cooch Behar for summoning one Dr. Maitra. But that step was not taken. Therefore, it cannot be said that it is an exceptional circumstance. The learned Judge thought that it was due to inadvertence or negligence. Can negligence get a premium before the court of law if the prosecuting agency is unable in performing his duty? Can the P. P. who is a paid officer of the Government whose duty it is to avoid inadvertence and to be very alive to the stages at which the prosecution case is developing at the trial be heard to say that it was due to inadvertence that he did not summon the real witness? It is not that due to inadvertence no prayer for summoning witness was made. Inadvertence was not to summon the witness. It was negligence to cite the real witness in the case. So on the last date of examination of the prosecution witnesses, at the very beginning of the adjourned trial it was the duty of the public prosecutor and none else, to apply before the court that from the record it appeared that the doctor who examined the victim was not Dr. Molla but Dr. Maitra. So the learned Sessions Judge should not have considered this failure of the prosecution as inadvertence or negligence. Therefore it is not an exceptional case. His Lordship, Harries, C J. laid down another salutary principle in the observation I have quoted. His Lordship stated
Additional evidence in civil cases in similar circumstances is not permissible and I am wholly unable to see why greater latitude should be given to the prosecuting authorities than to parties in a civil suit. In my view where the prosecution has failed to establish its case the only proper order is one of acquittal.
So the latitude as is given in the provision of Order 21. Rule 47 cannot be given in a criminal case unless a circumstance is exceptional and exceptional circumstances may be as those, his Lordship has already pointed out in his observation. In the latter case the question was that having regard to the seriousness of the case a latitude should be given in applying the provision of Section 428 of the Criminal P.C. In that context Harries, C. J. has observed in paragraph 9 of 52 Cri LJ 301 at p. 302 : A.I.R. 1951 Cal 305
The fact that the case is serious is no ground for ordering a retrial and it appears to me that in this case the learned Judge has not only ordered a Tetrial but has given the prosecution an advice on the evidence and has told them what evidence they should produce if they hope to prove their case.
In the case reported in 1958 SCJ 150 : A.I.R. 1957 SC 912 State of Uttar Pradesh v Manbodhan Lai Srivastava the principle, as was established by the two decisions of this Court had been reaffirmed with much firmness, and in a circumstance which was more favourable to the party than in the present case. So the learned Sessions Judge had no jurisdiction to receive any additional evidence in the circumstance of the present case and his judgment influenced by such evidence cannot sustain in law and must be set aside and reversed. I do hereby set aside and reverse his evidence and conviction and sentence passed against the accused appellant and acquit the accused appellant of the charge. The fine, if realised, may be refunded. The revisional application is allowed and the Rule is made absolute.