2001(2) Crimes 231 (SC)
Supreme Court of India
(From Bombay High Court)
Umesh C. Banerjee and K.G. Balakrishnan, JJ.
Rambhau & Anr. —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No. 636 of 1995
Decided on 26-4-2001
Counsel for the Parties :
For the Appellant : M.P. Verma, Sr. Advocate and N.K. Aggarwal, Advo­cate.
For the Respondent : S.V. Deshpande, S.M. Jadhav, Advocates.

Important Point
High Court in this case rightly invoked Section 391 of the Cr.P.C. to “rectify the irregularity” to sub-serve the ends of justice and right­ly reversed the acquittal recorded by Special Judge.

Headnote:(i) Criminal Procedure Code, 1973—Section 391—When appellate Court may take further evidence or direct it to be taken—Wide discretion in the matter of obtaining additional evidence in terms of Section 391 Cr.P.C.—Caution to be taken—Nature and scope explained—Case law ­referred. (Cross Ref. Order 41 Rule 27 CPC).

       Held : A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be re­ceived in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and Anr. (AIR 1965 SC 1887), in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependant upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society. 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 sub-serve 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 C.P. Code. (Paras 2, 3 and 4)

       (ii) Prevention of Corruption Act, 1947 —Sections 13(1)(d) r/w 13(2)—Crimi­nal trial of Appellant 1 Under and of Appellant 2 for its abetment—Trial Court acquitted the appellants—High Court reversed the acquittal—During the course of hearing High Court thought it fit to conduct an additional examinations of both the accused persons u/s 313 r/w 391 Cr.P.C. “to rectify the irregularity as cropped up and pointed out by the defence”—Meaning of word irregularity.

       Held : The word ‘irregularity’ in common English parlance means and implies contrary to rule. This Court in the case of The Martin Burn Ltd. v. The Corporation of Calcutta (AIR 1966 SC 529) while explain­ing the meaning of irregularity ­observed : “A point was, however, made that Section 131(2)(b) apply only to a cancellation on the ground of irregularity, that is a procedural defect such as, absence of notice, omission to give a hearing etc., There is, however, no reason to restrict the ordinary meaning of the word ‘irregularity’ and confine it to procedural defects only. None has been advanced. Such a conten­tion was rejected and we think rightly in 57 Calcutta W.N. 882 : (AIR 1953 Calcutta 773). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be”. Black’s Law Dictionary defines the word as ‘not according to rule and not regular’ i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute book has been for the purpose of making it available to the Court nor to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. The High Court itself records “to rectify the irregularity”, the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of sub-serving the ends of jus­tice, the same runs counter to the concept of justice. (Para 6)

       (iii) Prevention of Corruption Act, 1947 —Sections 13(1)(d) r/w 13(2)—Prosecution of a Sub-Inspector of Police (Appellant 1) for demanding and accepting bribe as a public servant—Sanction given by Commissioner of Police—Trial Court holding it bad in law—High Court reversing in appeal—Whether correct? (Yes).

       Held : Records depict that learned Special Judge, however, recorded a finding of acquittal on the ground that the sanction as accorded is bad in law since the Commissioner of Police, though was the appointing authority but no evidence has been laid that he was also the discipli­nary authority and as such the Commissioner is not otherwise competent to accord sanction to prosecute. The High Court negatived it and we do not see any reason for a different conclusion in the matter. Signifi­cantly, even the defence counsel, as has been recorded in the judg­ment, could not support such a reasoning. (Para 10)

       (iv) Prevention of Corruption Act, 1947 —Sections 13(1)(d) r/w 13(2)—Pro­secution of Appellant-1 for demanding and accept illegal gratification in discharge of public duty and Appellant-2 for getting it settled—Complainant prayed for a trap by tainted currency notes—Demand on 24-1-1989 not put to accused in examination u/s 313 Cr.P.C.—And as such circum­stances cannot be used against the accused—To rectify this irregular­ity High Court conducted additional examination—Of both the accused—Whether High Court was wrong? (No) —High Court setting aside of acquittal on merits—Whether needs any interference in appeal by Supreme Court? (No)—Appeal dismissed.

       Held : As regards the merit, the learn­ed Special Judge held that the demand and acceptance by the Appellant No. 1 have not been proved. The learned Special Judge in his judgment did mention the instance of demand on 22nd January and reached a conclusion that the same has not been proved but there has been a total omission as regards the demand on 23rd January. This aspect of the matter has been elaborately dealt with by the High Court and the High Court upon consideration of all relevant evidence came to a conclusion that taking into account the version of Sangamlal, the complainant and that of Tijare (P.W.7), there cannot be any manner of doubt that the prosecution has fully established the demand by Appel­lant No. 1 on 23rd January, 1989. As regards the demand and acceptance on 24th January, 1989, the High Court also negatived the finding of the learned Special Judge who reached a conclusion that the demand on 24th January, 1989 is completely untrustworthy. It is on this score, it was argued before the High Court that the factum of payment on 24th January as per the version of P.W.1 Sangamlal was not put to the accused persons in their examination under Section 313 of the Code of Criminal Procedure and as such circumstances cannot be used against the accused. It is on this count, the High Court conducted additional examination of both the accused persons in the High Court so as “to rectify the irregularity as cropped up and pointed out by the defence”. (Para 10)

       Mr. Verma, the learned Senior Advocate very strongly contended that High Court had no authority or jurisdiction to examine the ac­cused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregulari­ty and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recourse to, in the fact-situation of the matter under consideration. The omission cannot but be ascribed to be a mere irregularity. The High Court on the basis of relevant evidence on record held that the prosecution has fully established the demand by the accused No. 1 on 23rd January, 1989. It is the demand of 24th January which was said to have not been put to the accused but the factum of demand on an earlier day stands proved and concluded together with the seizure of the tainted notes on 24th January, completes the offence, as such omission to put to the accused, the demand on 24th cannot be said to be of such a nature which would go to the root of the matter. It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured. The prosecution has clearly established that the Appellant No. 1 is a public servant and in discharge of his official duties made a demand of Rs.1300 from PW1 Sangamlal as an illegal gratification and taking into account the evidence as is available on record, the accused No. 2 also has played a very significant role in negotiating on the figure of the amount and further having the notes exchanged at the dictate of the Appellant No. 1, it cannot thus but be said that the Appellant No. 2 substantially abetted the crime and thus we record our agreement in the finding of the High Court that the accused per­sons are guilty of the offence for which they were charged and ques­tion of recording a finding of acquittal in the matter cannot by any stretch be sustained. In that view of the matter, this Appeal fails and is dismissed. (Para 12)