1. By this criminal misc petition, a challenge is made to the order dated 14.10.2014, passed on the application under section 391 CrPC. The application aforesaid was dismissed as not found maintainable to produce documentary evidence at the appellate stage.

2. Learned counsel for petitioners has referred certain judgments, wherein, it is held that documentary as well as oral evidence can be allowed under section 391 CrPC. In view of above, prayer is made to set aside the impugned order and allow the application.

3. Learned counsel for non-petitioner submits that section 391 CrPC applies only for oral evidence and not for documentary. He has referred judgment of this court in the case of “Jugal Kishore versus Roshan Lal”, [1999 CrLR(Raj)203]. The prayer is made to dismiss the petition as application under section 391 CrPC is not maintainable to lead documentary evidence. Various paras of the judgment in the case of Jugal Kishore (supra) were referred to show as to why section 391 CrPC is not applicable to lead documentary evidence at the appellate stage.

I have considered rival submissions of the parties and perused the record.

4. The scope of section 391 CrPC is the issue for determination. The application under the said provision was dismissed holding it to be not maintainable for documentary evidence. Section 391 CrPC is reproduced thus -

“391. 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 Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

Section 391 CrPC allows additional evidence, if necessary for the reasons to be recorded. The word “evidence” has not been defined under the Code of Criminal Procedure but defined under section 3 of the Indian Evidence Act, 1872, which is reproduced hereasunder -

“Section 3 - “Evidence” – “Evidence” means and includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;such statements are called oral evidence;

(2) all document including electronic records produced for the inspection of the Court, such statements are called documentary evidence;”

5. The definition of the word “evidence” reveals both documentary as well as oral. Section 391 CrPC does not qualify its applicability only for oral evidence. If that would have been so, the word “evidence” would not have been used or if it is used then could not have qualified it for oral evidence only. The reference of the judgment in the case of Jugal Kishore (supra) has been given by learned counsel for non-petitioner. In the said judgment, section 391 CrPC has been made applicable only to lead oral and not for documentary evidence.

6. As against the aforesaid judgment, learned counsel for petitioners has referred various judgments, which include one judgment of the Division Bench. The judgment of the Division Bench is in the case of “Sharad Dhakar & ors versus State of Rajasthan”, [1997 CrLR (Raj) 376]. Other judgment is in the case of “Umesh versus State of Rajasthan”, [2004 (2) CrLR 849]. A judgment of the Kerala High Court has also been referred in the case of “Jose s/o Immanuel versus State of Kerala”, [2014 CrLJ 1917.

7. In the case of Sharad Dhakar (supra), Division Bench, considered documentary as well as oral evidence under section 391