-
Delhi High CourtAjay Gupta vs State Through Cbi on 22 October,
2005Author: R ChopraBench: R Chopra
ORDER R.C. Chopra, J.
1. This application under Section 311 read with Section 391 and
Section 482 Cr. P.C. is with a prayerfor issuing directions for
recording additional evidence to further interests of justice and
avoidmiscarriage of justice.
2. The facts relevant for the disposal of this application,
briefly stated, are that theappellant/petitioner stands convicted
under Sections 7 and 13(1)(d) read with Section 13(2) of
thePrevention of Corruption Act, 1988, vide orders dated 5th July,
2003. The order on sentence wasdated 7th July, 2003. His appeal
against conviction and sentence stands admitted.
3. The appellant/petitioner pleads that the prosecution case
against him is false as he was notpresent at the spot nor had
accepted bribe money as alleged by the prosecution. According to
him, atthe time of alleged trap, he was present in Safdarjung
Hospital in connection with investigations ofan accident case
registered at Police Station, Badarpur and the Doctors, the records
of the Hospitaland Police Station can establish that he was not
present at the spot at the time of alleged raid.According to the
appellant/petitioner, he had endeavored to produce the witnesses
and evidence indefense but the witnesses did not turn up and his
counsel made a statement closing defense perhapsdue to
over-confidence that the prosecution case against the appellant was
very weak. In thesepremises, it is submitted that it would be in
the interests of justice to direct recording of additionalevidence
so that an innocent person does not get convicted in spite of
abundant evidence toestablish that he is innocent.
4. Learned Counsel for the respondent has opposed this
application mainly on the ground that theappellant/petitioner had
sufficient opportunity to produce the witnesses as well as material
in hisdefense but he failed to do so. It is also submitted that the
order sheets dated 3rd April, 2003 and2nd June, 2003, recorded by
the Trial Court reveal that these defense witnesses were given up
bythe defense counsel himself. Learned Counsel for the respondent
also refers to the orders passed bythis Court on 27th July, 2005,
by which the application of the appellant/petitioner to
recordadditional defense evidence was dismissed on the short ground
that the witnesses were given up bythe defense counsel himself.
5. I have heard learned Counsel for the appellant/petitioner and
learned Counsel for the respondent.
6. The law is well-settled that the Appellate Court has
unbridled powers to order retrial or directrecording of additional
evidence if it is satisfied that the additional evidence is
essential to promotejustice and prevent miscarriage of justice. The
Courts do not exist merely for disposal of cases butare established
for dispensing justice. The bottom-line is that the Courts must
ensure that there isno failure of justice. Ordinarily in appeal,
the Appellate Courts do not permit additional evidence for
Ajay Gupta vs State Through Cbi on 22 October, 2005
Indian Kanoon - http://indiankanoon.org/doc/1869571/ 1
-
the reason that the parties come before the Appellate Court
after trial in which they get sufficientopportunity to lead
evidence. However, in case the Appellate Court is satisfied that
for some reason,a party has not been able to adduce evidence which
is material and may have substantial bearing onthe outcome of the
matter, the directions to record additional evidence must be issued
to preventfailure of justice. However, such direction should be
issued only in exceptional cases and sparingly.The main
consideration for adopting this course has to be that the ends of
justice have to beachieved and there should be no failure of
justice. The carelessness or negligence of a counsel orignorance of
an accused do not stand in the way of the Appellate Court while
considering such arequest. Procedural blockades cannot obstruct the
flow of stream justice which has to be keptflowing, unpolluted and
uninterrupted.
7. In the case in hand, it is found that in his anticipatory
bail application itself, theappellant/petitioner had raised a plea
that at the time of alleged raid and payment of bribe money tohim
he was not present at Police Station Badarpur and in fact he was
present at Safdarjung Hospitalin connection with the investigations
of a case. This plea was raised in regular bail application evenbut
still the Investigating Officer did not care to carry out
investigations into this plea and collectevidence to show that the
appellant was raising a false plea of alibi. The facts of the
prosecution caseagainst the appellant warranted inquiry into this
plea inasmuch as according to prosecution itself,the appellant,
after accepting the bribe from the complainant, threw it away and
ran away from thespot. The appellant was trying to raise a plea of
mistaken identity also. In this situation, it wasnecessary for the
Investigating Officer to inquire into the plea of appellant/accused
that he waspresent somewhere else. If the appellant had manipulated
records to raise a plea of alibi, theInvestigating Officer had good
reasons and a duty to expose the falsity of his plea and take
actionagainst those even who were trying to shield him.
8. However, since it was not done, it is in the interests of
justice and for arriving at a just decision inthe case that the
evidence as referred to in the application is recorded by the Trial
Court asadditional evidence so that this Court may ascertain the
truth of the matter before finally disposingof the appeal filed by
the appellant. It is true that the appellant had not produced these
witnesses indefense and his counsel had given up these witnesses in
the Trial Court but that does not stand inthe way of this Court
exercising powers under Section 311 read with Section 391 Cr. P.C.,
which aremeant for preventing miscarriage of justice. The main
reason for giving up the witnesses was thatthey were not getting
served. The Supreme Court of India in the case of Rajeswar Prasad
Misra v.The State of West Bengal reported in AIR 1965 SC 1887 :
1965 (2) Cri LJ 817 examined the powers ofAppellate Courts to take
additional evidence and held that additional evidence could be
ordered ifthe Court was of the view that there would be failure of
justice without it.
9. Under the facts and circumstances of the case in hand, this
Court is of the considered view that itis a fit case in which in
exercise of its powers under Section 311 read with Section 391 Cr.
P.C., thisCourt should direct recording of additional evidence by
the Trial Court as prayed. Accordingly,learned Trial Court is
directed to examine Dr. C. S. Prabhu, Dr. Bipin Kumar, Dr. Sumit
Sural,Kokan Kumar Mandal, the injured, In-charge, VRK (South
District), New Delhi with records and incharge, HAP Branch, VI
Battalion, DAP with records and send the recorded evidence to this
Courtfor the purpose of disposal of this appeal. As mentioned in
the application itself, it would be the
Ajay Gupta vs State Through Cbi on 22 October, 2005
Indian Kanoon - http://indiankanoon.org/doc/1869571/ 2
-
responsibility of the appellant/petitioner himself to produce
Dr. Bipin Kumar and Dr. Sumit Suralbefore the Trial Court on the
date/dates fixed for recording their statements. No summons will
beissued for them.
10. The application stands disposed of.
11. The appeal be listed in due course after the receipt of
additional evidence from the trial Court.
Ajay Gupta vs State Through Cbi on 22 October, 2005
Indian Kanoon - http://indiankanoon.org/doc/1869571/ 3
Ajay Gupta vs State Through Cbi on 22 October, 2005
