Appellate courts can invoke inherent powers under Section 391 Cr.P.C. to permit certified documents as additional evidence in appeals, even without specific prayer, if necessary for just decision, provided no prejudice to complainant.

JUDGMENT :

MEHROZ K. PATHAN, J.

1. The petitioner has filed the filed the present petition for quashing and setting aside the orders dated 20.12.2023 and 19.3.2024, passed below Exhibits 38 and 41, respectively, in Criminal Appeal No. 39 of 2018 passed by the learned Additional Sessions Judge, Ahmednagar with a further direction to reject the application below Exhibits 38 and 41.

2. This Court has granted stay to the proceedings vide order dated 24.6.2024 and since then the appeal before the learned Sessions Judge, Ahmednagar bearing Criminal Appeal No. 39 of 2018 filed against the conviction of the respondent is pending adjudication.

3. The learned counsel for the petitioner submits that the application filed by the accused below Exh.41 was only filed for the production of documents. Perusal of the application itself would suggest that prayer made by the accused was only to allow him to produce the documents and not to lead any additional evidence. It is further submitted that perusal of Exh.39 would show that the applicant had filed another application for permitting the accused for production of documents on record vide application at Exh. 41 dated 17.2.2024. The petitioner had filed his reply to the said application on 16.3.2024 opposing any such permission to be granted to the accused, on the ground that the accused had enough opportunity to produce the said documents before the trial court and the accused has failed to give any reason as to why the accused has not produced the said documents during the trial and has presented the said documents only at an appellate stage. The petitioner, therefore, prayed for dismissal of said application. However, the learned appellate court vide order dated 20.12.2023 had allowed Exh.38 filed by the accused for production of documents. The learned Sessions Judge has further allowed Exh.41 by order dated 19.3.2024 on the ground that the documents are necessary for deciding the appeal. The learned counsel therefore submits that the observation of the learned Session Judge, in its order dated 19.3.2024 that the documents were permitted to be brought on record shall be considered as an additional evidence for deciding the appeal are uncalled for. The learned counsel for the applicant has serious objection to such observations being made by the learned appellate court there being no such application moved by the prosecution for treating the said documents as additional evidence. All that the applicant prayed for is that, the accused shall be allowed to produce the documents on record, whereas, there was no prayer in the application to treat the documents as additional evidence. Even then, such observations are made by the trial court thereby causing serious prejudice to the complainant by allowing such documents to be read in evidence by the sessions Judge in appeal. Hence, the impugned orders may be quashed and set aside.

4. The learned counsel for the petitioner further submits that even the application made by the accused would show that they failed to invoke the powers under Section 391 of Cr.P.C. and had not prayed to lead the additional evidence in appeal. Still, the said application is allowed by exercising powers under of Cr.P.C. In absence of any such application made by the accused, the appellate court should no