The High Court has the jurisdiction to order the production of additional evidence under Section 428 of the Criminal Procedure Code in an appeal against an order of acquittal, but this power must be exercised sparingly and only in suitable cases, where there would be a failure of justice without it.

Headnote:
CRIMINAL APPEAL - JURISDICTION OF HIGH COURT - POWER TO TAKE ADDITIONAL EVIDENCE - SECTION 428, CRIMINAL PROCEDURE CODE - SCOPE AND LIMITS - FAILURE OF JUSTICE AS CONDITION PRECEDENT - EXERCISE OF DISCRETION - CIRCUMSTANCES JUSTIFYING RECEPTION OF ADDITIONAL EVIDENCE - DISTINCTION BETWEEN RETRIAL AND TAKING OF ADDITIONAL EVIDENCE.
Fact of the Case:

The appellant, a traveling salesman, was convicted under Section 408 of the Indian Penal Code for misappropriating three sums of money received from agents on behalf of his company. He claimed to have deposited the money with the company's cashier but failed to produce evidence to support his claim. The trial court acquitted him, but the High Court, on appeal by the complainant, ordered the production of additional documents and oral evidence, which demonstrated that the appellant had not deposited the money. The appellant challenged the High Court's order, arguing that it acted beyond its jurisdiction under Section 428 of the Criminal Procedure Code.
Finding of the Court:

The Supreme Court held that the High Court had the jurisdiction to order the production of additional evidence under Section 428 of the Criminal Procedure Code. The court clarified that the power to take additional evidence is not subject to the same conditions as those for ordering a retrial under Section 423. The court emphasized that the discretion to order additional evidence must be exercised sparingly and only in suitable cases, where there would be a failure of justice without it.
Issues: 1. Whether the High Court had the jurisdiction to order the production of additional evidence under Section 428 of the Criminal Procedure Code in an appeal against an order of acquittal. 2. Whether the High Court acted beyond its jurisdiction in receiving additional evidence which improved the prosecution's case.
Ratio Decidendi: 1. The court held that Section 428 of the Criminal Procedure Code applies to all appeals, including appeals against orders of acquittal. The court emphasized that the Code gives wide discretion to appellate courts to deal appropriately with different cases and that the limits of their jurisdiction are dictated by the exigency of the situation and fair play. 2. The court held that the High Court did not act beyond its jurisdiction in receiving additional evidence in the present case. The court found that the additional evidence was necessary to prevent a failure of justice, as the appellant had failed to produce evidence to support his claim of having deposited the money with the company's cashier.
Final Decision: The Supreme Court dismissed the appellant's appeal and upheld the High Court's order for the production of additional evidence. The court also upheld the appellant's conviction and sentence.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The High Court has the jurisdiction to order the production of additional evidence under Section 428 of the Criminal Procedure Code during an appeal against an order of acquittal. However, this power must be exercised sparingly and only in suitable cases where there would be a failure of justice without it (!) (!) .
The discretion to admit additional evidence is broad and is not limited by the same conditions as those for ordering a retrial. The exercise of this discretion should be guided by the necessity to prevent a failure of justice and ensure a fair decision (!) (!) .
The power to take additional evidence is applicable to all appeals, including appeals against acquittal, and can be exercised by the appellate court when it considers such evidence necessary for a just decision (!) (!) .
The order for additional evidence should be based on clear reasons, and the evidence may be taken either by the court itself or through a Magistrate or Court of Session, with proper certification and safeguards, including the presence of the accused or their counsel (!) (!) (!) .
The scope of the appellate court’s power to review facts is extensive, and it can reverse an order of acquittal if the evidence justifies such a conclusion, provided the exercise of this power aligns with the principles of fairness and justice (!) .
The exercise of the power to admit additional evidence must be done with caution, ensuring it is necessary for preventing a failure of justice and not for enabling a disguised retrial or prejudicing the accused (!) (!) .
The discretion under Section 428 is wide and not confined by strict statutory limitations, but it must be exercised judiciously, considering whether the additional evidence is necessary and whether the prosecution had a fair opportunity to present its case (!) (!) .
The purpose of admitting additional evidence is to facilitate a just decision when the existing evidence is insufficient or incomplete, and not to re-open or retry the case without valid reasons (!) (!) .
The appellate court’s review of facts and evidence should respect the trial court’s findings unless there is a clear reason to believe that justice requires a different conclusion, especially when new evidence is introduced (!) .
The principles guiding the exercise of this power emphasize fairness, the avoidance of unnecessary vexation, and ensuring that the case is decided on a complete and proper record of evidence (!) (!) .

If you need further analysis or specific legal advice related to this case, please let me know.

Judgement

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 travelling 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 he received, on behalf of the Company, sums of Rs. 300 and Rs. 240 respectively, from a firm Isaq and Sons and on 23rd 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 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. Mukerjee. General Manager, R. C. Gurman, 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:

(a) Sales 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 number. 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 particulars. 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 our 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."

x x x x x

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:

. . . . . 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 a

Click Here to Read the rest of this document

1963 Supreme(SC) 157

Cases Referred (2)