Court confirmed that applications for additional evidence must be resolved alongside appeals to preserve judicial efficiency and prevent injustice.

ORDER

This M.Cr.C. has been filed under Section 528 of BNSS against order dated

21.07.2025 passed by Additional Sessions Judge, Jabalpur in Cr.A. No. 1444/2024, whereby Appellate Court held that application filed by the applicant under Section 391 of Cr.P.C. shall be decided at the time of final disposal of appeal on merits and not separately.

2. Learned counsel for the applicant submits that in the instant case, applicant has filed an application under Section 391 of Cr.P.C. before learned Appellate Court but Appellate Court has not decided aforesaid application and it has passed an order to the effect that aforesaid application shall be disposed of, at the time of final disposal of appeal. Learned counsel for the applicant, after referring and relying upon Criminal Appeal No. 184/2020 ( Asim @ Munmun Vs. State of Gujarat ) decided on 28.01.2020, submits that learned Appellate Court was required to decide applicant's application under Section 391 of Cr.P.C. before deciding the appeal on merits finally. Hence, petition filed by the applicant be allowed and impugned order be set aside and appellate Court be directed to first decide applicant's application under Section 391 of Cr.P.C. and thereafter dispose of the appeal finally on merits.

3. I have heard learned counsel for the applicant and perused the record of the case.

Analysis and Findings :-

4. Perusal of the record of the case reveals that applicant has filed an application under Section 391 of Cr.P.C. but Appellate Court has not disposed of aforesaid application separately. Instead, Appellate Court has directed that the aforesaid application shall be disposed of, at the time of final disposal of appeal.

5. Sole issue before this Court is as to whether an application filed under Section 391 of Cr.P.C. is required to be decided along with final disposal of appeal on merits or it has to be decided separately. With respect to aforesaid, it would be appropriate to reproduce Section 391 of Cr.P.C. which is as under:-

―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.‖

6. Further, issue involved in the case has been dealt with by Hon’ble Apex Court in the case of Rambhau and another Vs. State of Maharashtra , (2001) 4 SCC 759 and State of Rajasthan Vs. T.N. Sahani and others , (2001) 10 SCC

619.

7. Hon’ble Apex Court in the case of Rambhau and another Vs. State of Maharashtra , (2001) 4 SCC 759, has held in para 4 as under:-

“4.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 b affected in any way by reason of exercise of power under Section 391 since the same avo