IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1130/2018 BETWEEN:
1. Sri Umesh Prabhu S/o K Ramadas Prabhu Aged about 64 years 2. Smt.Sandhya U.Prabhu D/o Umeshprabhu Aged about 36 years 3. Smt.Vidya U Pai D/o Umeshprabhu Aged about 37 years All residing at Ravalnathkripa Haridas Lane, Munnagudda Mangaluru- 575 003 ...Petitioners (By Sri.Ravi. B Naik, Sr.Counsel for Smt.Vijetha R Naik, Advocate) AND:
State by Barke Police Station, Represented by State Public Prosecutor, High Court of Karnataka, Bangalore-560 001. ... Respondent (By Sri. S.T.Naik, HCGP) This Criminal Revision Petition is filed under Section 397 read with Section 401 of Criminal Procedure Code praying to set aside the order dated: 15.09.2018 passed by the VI additional District And Sessions Judge, D.K., Mangalore passed in Crl.A.No.58/2017 rejecting the application filed under Section 391 R/w 315 of the Code of Criminal Procedure Code filed by the Petitioners and consequently allow the same and admit in the evidence.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioners/accused Nos.1, 2 and 4 challenging the order passed by the VI Additional District and Sessions Judge, D.K., Mangaluru in Crl. A. No.58/2017, rejecting the application filed under Section 391 read with Section 315 of Cr.P.C.
2. I have heard the learned Senior counsel Sri.
Ravi B Naik for petitioners and the learned High Court Government Pleader for respondent-State.
3. Gist of the case before the Court below is that on 05.04.2009 at about 8.10 p.m., accused Nos.1 to 4 trespassed into the property of the complainant with an intention to commit the crime. At that time, accused No.3. pulled down the compound wall by pickaxe. By noticing the same, the inmates of the house including the complainant came out and made an enquiry with the accused persons. At that time, accused persons scolded with filthy language in order to insult and provoke them and to commit breach of peace. The accused No.2, pulled the hair of the complainant and other accused persons have assaulted with hands and kicked with legs. When CW.7 tried to pacify the incident, accused No.3 again pulled her hair and tried to outrage her modesty and also assaulted CW.9 with pickaxe and caused bleeding injuries. When CWs.7 and 9 tried to pacify the incident, accused persons threatened them with dire consequences and committed criminal intimidation. Accused No.4 thrown chilly powder on the face of CWs.1, 7 and 9 and instigated other accused persons to commit crime. On the basis of the complaint, a case came to be registered. After framing charges and recording the evidence, the trial Court came to the conclusion that the prosecution has proved the guilt of the accused as such, convicted the accused Nos.1 to 4 for the offences leveled against them.
4. Being aggrieved by the said order, the accused petitioners filed Criminal Appeal No.58/2017 before the VI Additional District and Sessions Judge, D.K., Mangaluru. They filed an application under Section 391 read with Section 315 of Cr.P.C., for production of additional documents in support of the case of the appellants therein. After hearing the learned counsel appearing for appellants and learned Public Prosecutor, the said application came to be dismissed.
Being aggrieved by the same, the petitioners/accused Nos.1, 2 and 4 are before this Court.
5. It is the submission of the learned Senior counsel for petitioners that accused No.3 was suffering from cancer and now he has died. At the time of recording Section 313 statement of accused persons, the heath condition of accused No.3 was very worst and even he was actually brought all the way in a pathetic condition, in that situation the said statement has been recorded. As the other petitioners/accused were also busy in attending accused No.3, who was suffering with bad health in that light, though the documents which were supposed to be produced in the evidence, were not produced. It is further submitted by the learned Senior counsel that the said documents are the certified copy of the order passed in O.S. No.861/1987 wherein, permanent injunction has been granted in favour of petitioner No.1 herein and the said documents were also within the knowledge of the complainant. The said additional documents which were supposed to be produced clearly go to show that no such incident has taken place and it disprove the charges leveled against the petitioners/accused Nos.1, 2 and 4. Without considering the said facts and circumstances, the First Appellate Court dismissed the petition erroneously. It is further submitted that the provisions of Section 391 of Cr.P.C., forms an exception to the general rule that an appeal must be decided on the basis of the evidence which has been produced before the Court below and the provisions of Section 391 are also intended to meet the ends of justice. If the additional documents are not allowed to be produced, the entire proceedings becomes de novo trial and that the records which are intended to be produced, are akin to the Order 41 Rule 27 of CPC. The said aspect ought to have been kept in mind by the trial Court while considering the application under Section 391 of Cr.P.C. In order to substantiate the said contention, he relied upon the decision of Hon’ble Apex Court in the case of RAMBHAU AND ANOTHER V. STATE OF MAHARASHTRA reported in (2001) 4 SCC 759. On these grounds, he prayed to allow the petition and to set aside the impugned order.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that the First Appellate Court cannot allow to produce any new documents for being used as an evidence. If such documents are to be produced at this belated stage, it amounts nothing but fill up the lacuna in the case. At the time of trial, the Court below has rightly exercised the power and has come to the right conclusion by dismissing the application. It is further submitted that if the said documents are allowed to be produced, the complainant will be put to greater hardship and will be prejudiced. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and also the proposition of law laid down by the Hon’ble Apex Court including various High Courts.
8. As could be seen from the order of the First Appellate Court on the application under Section 391 of Cr.P.C., the applicants/accused persons have filed the said application seeking permission to produce additional evidence by way of documents mentioned in the list, in order to prove the charges leveled against them are not sustainable in law. The said application is accompanied with the affidavit and the same is objected by the learned Public Prosecutor. After hearing the same, the Court below has rejected the application.
9. It is no doubt true that in Appellate stage, if the appellants are allowed to produce additional documents, then it may amounts to fill up the launa and while considering the application under Section 391 of Cr.P.C., the Court ought to have taken into consideration the said documents which were available and ought to have ascertained for the best reasons whether they have not been produced before the Court below. The decision of the Hon’ble Apex Court in the case of RAMBHAU’ s Case (Supra), paragraph No.4 has been observed as under:
“Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code.”
10. On close reading of the said paragraph, it has been clearly observed that the provisions of Section 391 of Cr.P.C., are akin to Order 41 Rule 27 of CPC. If the same analysis is applied in the present case, the trial Court ought to have allowed to produce the said documents, thereafter in stead of deciding the application separately, it could have been heard the appeal along with the said application and have looked into the relevancy of the documents which are produced and thereafter, the appeal as well as the application for production of documents under Section 391 of Cr.P.C., could have been disposed.
11. During the course of arguments, the learned Senior counsel submitted that accused No.3 was suffering from cancer. Hence, the health was worst and because of the said circumstance, the said documents have not been produced. It is further submitted that the said documents are the public documents and they were within the knowledge of the complainant, whether the said documents are relevant or not?, has to be considered only when the case is heard and decided on merits but not independently. By a plain reading of Section 391 of Cr.P.C., it is no doubt true that there is no scope for production of additional documents but as could be seen from the judgment of the Hon’ble Apex Court, it has been observed that the power under the said Section is a exception and the said power has to be exercised with caution and circumspection, so as to meet the ends of justice.
12. Keeping in view the above said facts and circumstances and the ratio laid down in the decision quoted supra, I am of the considered opinion that the view taken by the learned Sessions Judge in dismissing the application/I.A. independently without considering the merits of the case in the appeal that itself is erroneous and it is not in accordance with law.
13. Under the facts and circumstances, I feel that the trial Court has to consider the application along with main on merits and the documents may be considered as per the provisions of Order 41 Rule 27 of CPC. The same method has to be adopted and shall decide the case in accordance with law.
14. In the light of discussion held by me above, the order dated 15.09.2018 passed by the VI Additional District and Sessions Judge, D.K., Mangaluru in Crl. A. No.58/2017 is set aside and the matter is remitted back with the above observations.
In view of dismissal of the main petition, I.A. No.1/2018 does not survive for consideration and the same is dismissed.
Sd/- JUDGE VBS