An application under Section 391 of Cr.P.C. should be considered after hearing the parties on merits and should not be decided at the interlocutory stage.

ORDER

1. This Criminal Revision filed under Section 397/401 of Cr.P.C. is directed against the order dated 23.1.2020 passed by the XXIV Additional Sessions Judge, Bhopal in Cr.A. No.417/2018 (Vaibhav Khare Vs. Kamal Kishore). Learned Appellate Court by the impugned order rejected an application under Section 391 of Cr.P.C filed by the appellant/ accused.

2. Brief facts necessary for deciding this matter are that the non applicant/ complainant filed a complaint against the petitioner under Section 138 of Negotiable Instruments Act (herein after referred to as 'N.I.Act'). Learned JMFC, Bhopal passed judgment dated 15.6.2018 in CNRT No.9958/2014 (Kamal Kishore Vs. Vaibhav Khare) and convicted the petitioner for offence under Section 138 of N.I.Act and sentenced to 1 year S.I. and also directed the petitioner/ accused to pay compensation to the tune of Rs.2,72,000/- to the complainant/ non-applicant. The petitioner preferred an appeal which was registered as Cr.A. No.417/2018. In the said appeal, the petitioner moved an application under Section 391 Cr.P.C. and prayed for taking the document on record. The First Appellate Court/ Court of Additional Sessions Judge, Bhopal rejected the said application by the impugned order.

3. Assailing this order, learned counsel for the petitioner Shri S. P. Khare has contended that application under Section 391 of Cr.P.C. should have been considered and decided after hearing the criminal appeal on merits and should not have been disposed of in isolation without hearing the appeal on merits.

4. Learned counsel for the petitioner has placed reliance on an order dated 20.11.2015 passed in Criminal Revision No.781 of 2012 (Durgesh Kumar Vs. J. B. Singh) order dated 20.11.2015 passed by the co-ordinate Bench at Gwalior.

5. On the other hand, Shri Manish Soni, leaned counsel for the complainant/ non-applicant supported the impugned order. He has submitted that the learned Additional Sessions Judge has not committed any error in deciding the interlocutory application under Section 391 of Cr.P.C. at interlocutory stage. Section 391 of Cr.P.C. no where prohibits the Court that such application must be decided at the time of final hearing of the matter.

6. I have gone through the impugned order and submissions put-forth by the learned counsel for the parties and perused the record.

7. The co-ordinate Bench of this Court at Gwalior in Durgesh Kumar's case (supra) considered the judgment of Rambhau and another Vs. State of Maharashtra - (2001)4 SCC 759; State of Rajasthan Vs. T. N. Sahani -(2001)10 SCC 619; Khemchand Vs. Government of M.P. and others - 1972 MPLJ 524 and Dharmendra Vs. State of M.P. - 2006(1) MPLJ 436 and came to the conclusion that judgment in the case of Dharmendra (supra) is based on a Supreme Court judgment in the case of T. N. Sahani (supra) and it has been held that Section 391 of Cr.P.C. is akin to Order 41 Rule 27 of CPC and an application under Section 391 of Cr.P.C. should not be considered in isolation but should be considered after hearing the parties on merits. If after hearing the parties on merits, the Court comes to the conclusion that additional evidence is not necessary then while deciding the appeal application under Section 391 of Cr.P.C. can be dismissed.

8. Undisputedly in this case, learned Additional Sessions Judge has decided the application under Section 391 of Cr.P.C. at the interlocutory stage. Therefore, placing reliance on the aforesaid order passed in Durgesh Kumar (supra), I am also of the view that learned Additional Sessions Judge has committed an error in deciding the application under Section 391 of Cr.P.C. at interlocutory stage.

9. Resultantly, the impugned order dated 23.1.2020 passed by the XXIV Additional Sessions Judge, Bhopal so far as it relates to dismissal of application under Section 391 of Cr.P.C. at interlocutory stage, is set aside. Learned Court below is directed to proceed in accordance with law by taking into account the order passed by this Court