Case Note & Summary
The Supreme Court allowed the appeal filed by the State of Rajasthan against the judgment of the Rajasthan High Court dated 10.02.2022. The High Court had allowed an application under Section 391 of the Code of Criminal Procedure, 1973 (CrPC) filed by the respondent-accused Asharam @ Ashumal, directing summoning and recording of evidence of Ajay Pal Lamba, a former Deputy Commissioner of Police who had written a book titled 'Gunning For The Godman: The True Story Behind Asaram Bapu's Conviction'. The respondent had been convicted by the Special Court under the POCSO Act, Jodhpur, on 25.04.2018 for various offences including under Sections 370(4), 342, 354-A, 376(2)(f), 376-D, 506, 509/34 and 120-B of the Indian Penal Code, 1860, Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and Sections 5(f)/6, 5(g)/6, and 8 of the POCSO Act. He was sentenced to rigorous imprisonment for different periods and life imprisonment for the remainder of his natural life. The victim had given a handwritten complaint on the intervening night of 19/20.08.2013, leading to registration of FIR at Police Station Kamla Market, Delhi. The respondent filed an application under Section 391 CrPC before the High Court during the pendency of his appeal against conviction, seeking to examine Ajay Pal Lamba as an additional witness. The High Court allowed the application, observing that the evidence of the witness would be relevant to the defence. The Supreme Court, in the present appeal by the State, examined the scope of Section 391 CrPC. The Court held that the power under Section 391 CrPC is discretionary and must be exercised sparingly and only when the appellate court considers such evidence necessary for a just decision. The Court emphasized that the provision is not intended to fill gaps in the prosecution case or to allow a party to adduce evidence that could have been produced at trial with due diligence. The Court found that the High Court had not recorded any reasons why the evidence of Ajay Pal Lamba was necessary for a just decision and why it could not have been produced earlier. The witness was a police officer who had written a book about the case, and the defence could have examined him during trial but did not. Therefore, the Supreme Court set aside the High Court's order and dismissed the application under Section 391 CrPC.
Headnote
A) Criminal Procedure - Additional Evidence in Appeal - Section 391 CrPC - Scope and Limitations - The High Court allowed an application under Section 391 CrPC to summon and record evidence of a witness (Ajay Pal Lamba) who was not examined during trial, on the ground that his testimony would be relevant to the defence of the accused. The Supreme Court held that Section 391 CrPC is not intended to fill gaps in the prosecution case or to allow a party to adduce evidence that could have been produced at trial with due diligence. The power under Section 391 CrPC is discretionary and must be exercised sparingly, only when the appellate court considers such evidence necessary for a just decision. The High Court's order was set aside as it failed to record reasons why the evidence was necessary and why it could not have been produced earlier. (Paras 1-20) B) Criminal Procedure - Additional Evidence in Appeal - Section 391 CrPC - Necessity and Just Decision - The Supreme Court clarified that the phrase 'necessary for a just decision' in Section 391 CrPC does not mean that the appellate court can summon any evidence that may be relevant; rather, it must be evidence that is essential to pronounce judgment and that could not have been produced despite due diligence. The court must record reasons for allowing such application. In the present case, the witness (Ajay Pal Lamba) was a police officer who had written a book about the case, and his evidence was sought to challenge the prosecution's case. However, the defence could have examined him during trial but did not. The High Court's order was held to be erroneous. (Paras 10-20)
Issue of Consideration
Whether the High Court was justified in allowing the application under Section 391 of the Code of Criminal Procedure, 1973, for summoning and recording the evidence of a witness (Ajay Pal Lamba) who was not examined during the trial, and whether such evidence could be considered as additional evidence in appeal.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court order dated 10.02.2022, and dismissed the application filed by the respondent under Section 391 CrPC.
Law Points
- Section 391 CrPC
- Additional evidence in appeal
- Scope of Section 391 CrPC
- Criminal appeal
- Power of appellate court to summon evidence
