Point of law : Article 22(1) of the Constitution of India confers a Fundamental Right upon an accused, who has been arrested by the police to be defended by a legal practitioner of his choice.

ORDER :

1. By preferring this petition under Article 14, 16, 226 and 227 of the Constitution of India and under the provision of Section 482 of the Criminal Procedure Code, 1973, applicant has challenged the order passed below Ex-43 in Criminal Appeal No.22/2011 by the learned Sessions Judge, Gandhinagar rejecting the application Ex-43 filed by the applicant under Section 391 of Code of Criminal Procedure for producing additional evidence by an order dated 28.01.2016. The applicant was convicted by the learned Chief Judicial Magistrate, Gandhinagar in Criminal Case No. 9853 of 2009 vide judgment and order dated 04.05.2011 for the offence punishable under Section 406, 420, 408, 467, 468, 471 read with Section 114 of the IPC while he was acquitted u/s. 120(B) of the IPC.

2. Heard learned advocate Mr. Yogendra Thakore for the applicant, learned advocate Mr. Nanavati for the respondent No.2 and learned APP Mr. Himanshu Patel for the respondent - State.

3. It is submitted by learned advocate appearing for the petitioner that against the order of conviction passed by the learned Chief Judicial Magistrate, Gandhinagar dated 04.05.2011 in Criminal Case No.9853 of 2009, Criminal Appeal No.22/2011 was preferred by the present applicant challenging the impugned judgment and order of conviction. It was further submitted that when the appeal came up for hearing, it was found that the important documents i.e. forged cheques which were deposited in the accounts of the applicant and almost entire amount was withdrawn by the accused namely Jayeshbhai Shah on the very next day That after realisation of the amount which clarifies the innocence of the applicant, and therefore, an application under Section 391 of the Code of Criminal Procedure for permitting him for production of additional evidence of the cheque details before the Sessions Court, Gandhinagar. It is further submitted that the amount deposited was withdrawn by the co-accused namely Jayeshbhai Shah.

4. It is further submitted that Sessions Court has wrongly dismissed the application Ex-43 without assigning any reasons which would frustrate the provisions of Section 391 of the Code. It is further submitted that great prejudice would be caused to the applicant because of non-production of the said evidence as he could not defend himself properly before the trial Court. It is further submitted that rejecting the application Ex-43, was not just and proper, and therefore, impugned order is liable to be quashed and set aside. It is further submitted that under Section 391 of the Criminal Procedure Code, the applicant is required to be permitted to produce additional evidence as the applicant was wrongly convicted by the Court. Hence, it was requested by the learned advocate appearing for the applicant to quash and set aside the impugned order passed below Ex-43 dated 28.01.2016 by the learned Sessions Judge, Gandhinagar in Criminal Appeal No.22/2011.

5. While opposing the prayer made by the applicant, learned advocate appearing for the respondent No.2 has submitted that the applicant failed to rebut the evidence of prosecution witnesses by leading any further evidence. It is further submitted that no defence was taken by the present applicant during the course of the trial as argued before this Court. It is further submitted that not giving any proper advice by the advocate engaged by the present applicant, facts cannot be denied and such a permission cannot be granted by exercising powers under Section 391 of the Code of Criminal Procedure. That learned Sessions Judge has rightly dismissed the prayer made by the present applicant. That applicant has tried to fill up the lacuna before the Appellate Court however sufficient opportunity was afforded during the course of the trial. In support of his arguments, learned advocate for the respondent No.2 has relied upon the judgment reported in 1993 AIR SCW 1178. The learned advocate appearing for the applicant in support of his arguments has relied