The power under Section 391 Cr.P.C. to allow additional evidence should be exercised sparingly and only in exceptional suitable cases where it would serve the interest of justice.

ORDER :

Bhaskar Raj Pradhan, J

1. Heard Mr. Zangpo Sherpa, Learned Counsel for the Revisionist.

2. The Applicant/Revisionist prefers the present application under Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for placing additional document on record. The records reveal that this matter has gone through a trial from 01.12.2006 till 24.06.2008 when the Learned Trial Judge rendered its judgment. The record further reveals that dissatisfied with the order of the Learned Trial Judge the Revisionist preferred a Criminal Appeal No.07/2008 filed on 22.07.2008. The judgment in Appeal was pronounced by the Appellate Court on 27.06.2015 against the Revisionist. The application under Section 391 (Cr.P.C.) filed before this Court on 12.05.2018 seeks the following prayers:

“a. allow the present application and permit the applicant, Radhey Shyam Swami to lead further evidence or in alternate remand the matter back to Lower Court/s for the limited purpose to lead further evidence by allowing the applicant to produce and rely on the above mentioned documents which are as follows:

i. The three (3) Complaint filed by the respondent, bearing Private Comlaint Case. No. 52 of 2013, Private Complaint Case No.53 of 2013 and Private Complaint Case No.39 of 2014.

ii. Declaration dated 13.09.2005 (Denied by the Revisionist).

iii. Memorandum of Understanding dated 19.09.2005 (Denied by the Revisionist).

iv. Sub Divisional Magistrate’s Order dated 12.08.2002.

v. Forensic Report.

b. Pass such further and other order/s as this Hon’ble Court may deem fit and proper in the facts and proper in the facts and circumstances of the case.”

3. Section 391 Cr.P.C. permits the Appellate Court to either take 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 if the Court thinks “additional evidence to be necessary.” Mr. Zangpo Sherpa, Learned Counsel for the Revisionist/Applicant relies upon the judgment of the Supreme Court in re: Ashok Tshering Bhutia vs. State of Sikkim, (2011) 4 SCC 402 and draws the attention of this Court to paragraph 28 and 29 thereof which is quoted herein below:

“28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.

29. The primary object of the provisions of Section 391 CrPC is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887, Ratilal Bhanji Mithani v. State of Maharashtra [(1971) 1 SCC 523, Rambhau v. State of Maharashtra, (2001) 4 SCC 759, Anil Sharma v. State of Jharkhand [(2004) 5 SCC 679, Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 and Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.

4. The judgment of the Supreme Court with regard to additional evidence is clear. Additional evidence at the Appellate Stage is permissible in case of a “failure of justice”. It is also clear that such power must be exercised “sparingly” and only in “exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interest of justice.”

5. This Court has examined the application preferred by the Revisio