( 1 ) THE revision petitioner are Accused Nos. 2 and 4 in Calendar Case No. 30 of 1994 on the file of the Court of IX Metropolitan Magistrate, hyderabad. They along with Accused Nos. 1, 3, 5 and 6 were arraigned for offences punishable under Sections 120-B, 420, 406 and 411 of the Indian Penal Code, 1860. The trial Court convicted all of them for offences under Section, 120-B, 420, 406 and 411 of i. P. C. and recorded different sentences for the several accused. Aggrieved, the revision petitioners A-2 and A-4 filed Criminal Appeal no. 130 of 2001 before the Metropolitan sessions Judge, Hyderabad. in the appeal, the State filedcrl. M. P. No. 1292 of 2002 under section 391 of Cr. P. C. for receiving additional evidence, namely, the question-cum-answer papers attached to Exs. P-81 to P-84 by examining Investigation Officer-P. W. 48 after recalling him. This application of the State was allowed by the order dated 14-11 -2002, where against this revision is filed.

( 2 ) BY the order impugned, the Court below recorded that A-3 and A-4 had indisputably appeared fortheeamcet-1993 examination at Nellore; that during the process of investigation, xerox copies of answer scripts of these accused were sent to P. Ws. 37, 38 and P. W. 58-experts in the several subjects for which these accused appeared at the eamcet-1993, for the purpose of ascertaining whether the answers given by these accused disclosed their pre-knowledge of the question papers, the leakage of which had the complicity of the accused in such conduct lead to the prosecution; that P. Ws. 37 and 38 had offered their remarks after exam i nation of photostat copies of the Physics and Chemistry answer scripts of A-3 and a-4 and that though the original answer scripts of A-3 and A-4 were collected by the investigation Officer-P. W. 48 during his investigation and were filed along with the charge sheet in the trial Court, they were not marked through P. W. 48, On these factual circumstances, the Court below-the appellate court, the Metropolitan Sessions Judge, hyderabad was satisfied that for the coming to a just conclusion in the appeal, the original answer scripts of A-3 and A-4 in the E AMCET- 1993 are required to be received as additional evidence in the appeal and, therefore, allowed the petition of the State permitting the prosecution to produce the question-cum- answer papers of A-3 and A-4 in EAMCET- 1993 as additional evidence by recalling p. W. 48-lnvestigation Officer.

( 3 ) SRI C. Padmanabha Reddy, learned counsel for the 2nd revision petitioner-A-4 submitted that as a result of the order impugned in this revision, the prosecution is enabled to fill up the lacuna in the prosecution case and that but for this evidence the accused have a fair chance of success in the appeal as there is no material evidence in the form of answer papers of A-3 and A-4, that will permit a legitimate inference of their pre-knowledge of the question papers of EAMCET-1993. It is his contention on the basis of these assertions that permitting the prosecution to fill up the lacuna at the appellate stage constitutes illegal and unwarranted exercise of discretion by the appellate Court under section 391 of Cr. P. C. Sri Govinda Reddy, learned counsel for the first revision petitioner- a-2 reiterates that has been submitted by sri C. Padmanabha Reddy and in addition he submits that as the appeal was preferred by the accused aggrieved on their conviction by the trial Court, it was not permissible for the prosecution to have filed an application for adduction of additional evidence in such an appeal.

( 4 ) SECTION 391 of the Code of Criminal procedure, 1973 reads as under: 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 Appel