RAJESWAR PROSAD MISRA versus STATE OF WEST BENGAL & ANR.

RAJESWAR PROSAD MISRA

STATE OF WEST BEl'iGAL & ANR.

May 6, 1965

[A. K. SARKAR, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.j

l'odt• of ('rinzinal l'rocedtlre (Act 5 of 1898) s. 428-Scope of.

The appellant was prosecuted for offences under s. 408 Indian Penal Oxte on the ground that he had mis:tppropriatcd cert;iin amounts. HL, defence y.:as that he had deposited the money '"ith the cashier of his cm· ployer, and he a')ked at lhe trial. for rhe production of certain documcnLc; 'A'hich \\·ould shO\\' -.uch depoc;it. The docun1ent'i were not produced he-caw,e of !.he v~1gui.:ness of the demand. ·inc f\1agi,.trate did not accept the oral cvi<lencc of the prosecution and acquitted the appellant, drawing prc~umption <1g;..:in'it the complainant from hi:-. failure 10 produce the document~. ()n appeal by the con1plain;in1 under \. 417(1}, Crin1ina.l Procedure ('ode. lhc High \ourr ordered the producrion of those docu~ menf"'. undl.!r s . ..:28 of the L'odc. and ullin1arcly convicred the appellant aftc-r con,idcring !he oral ~nd documentary C\"idcnce.

In his appeal to the Supreme C'-0urt. the appc11ant contended that the Higb Court acted beyond rhe jurisdiction conferred hy s. 428, in receiving addition.ti eYidcnce \\'hich had cnahlcd the pro.,;ccntion to improve its ca..c.

HELD : The High Cou11 rightly thought that. rather than take different view of the oral evidence, the interests of ju·aice and fair play demanded ih.tt the additional evidence. \vhich the accused himself demand-ed to he pro·duccd at the trial, !>hould he taken. 1189 A-HJ Section 428 occurs in Chapter XXXI of the Code. It speak- of "any" appeal under that Chapter, and since ~. 417(.l) i~ in 1hat Chapter, s. 428 applies to the appeal to the High Court aga..inst an order of acquittal. The Code does not differentiate het"·ccn the amhit of :-in appeal from con-viction and that of an appeal fro1n an order of acquitt.11. The procedure for dealing \\ilh the t\,·o k:nd' ot appc.tl> is identical and the poy.·ers of the appell:He courts in disposing of the appeals. though indicated separate-Jy in s. 423. ;lre in cs .... encc the same. The ('.ode contemplates that retrial may he ordered after !'>etting aside 1he conviction or acquittal, under s. 423, if the trial already held is found to be unsatisfactory or leads to failure of justice. In the same v.·ay. the Code gives po\ver to the appellate court to lake ~tdditional evidence. under s. 428. y.·hich, for reasons to he recorded it considers necessary. The C'od~ thu.,; gives power to the appel-Ja:e Ci>urt to order one or the 01her. a.<> the circumc;t;1nces may require, lr-:1ving :-. vtide discretion to it to deal appropriately \vith different cases. s;nce y.·ide di .. cretion is conferred on the appellate court, the limits of that C'"'urt's jurisdiction niu-;t obviou':'ly be dictlted hy rhe exigency of the situat;on, and fair-pl3.y and good sense appear to be the only safe guides. The power must be exercic;ed sparingJy and only in suitahlc cases, when there \ .. rould he failure of ju<>tice without such additional evidence. Once such action is justified. there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course. not be rc:-ceived in such way a<> to cauc;e prejudice to the accus--ed. a.o; for cxaniple, it should not be received as disguise for retrial or to cbJngc the nature of the case against him. The order must not ordina .. rily be made if the pro«ecution has had fair opportunity and has not

Avail·OO of it, unless the requirements of justice dictate otherwise. [182. F-G; 186 B-C; 186H-187B; 187 E-F; 187H-188B]

Abinash Chandra Bose v. Bimal Krishna Sen, A.LR. 1963 316 and· Ukha Kolhe v. State of Maharashtra,. A.LR. 1963 S.C. 1531, explamed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .. 19 of 1963 .

Appeal by special leave from the judgment and_ order. d~ted: September 5, 1962, of the Calcutta High Court m Cnmmal Appeal No. 295 of 1960.

P. K. Chakravarty, for the appellant.

Sarjoo Prasad, E. Udayarathnam and R. C. Prasad, for res-C pondent No. 2.

The Judgment of the court was delivered by

Hidayatnllah, .T. The appellant Rajeswar Prosad Misra, who has b.~en convicted under s. 408 of the Indian Penal Code· on three counts and sentenced in the aggregate to suffer rigorous imprisonment for one year and to pay fine of Rs. 2,000 (in default 6 months' further rigorous imprisonment), was travel-ling salesman of Messrs. Dabur (Dr. S. K. Bunnan) Private· Ltd. The area of his operation was the Suburbs of Calcutta and the Mill Area. His duty was to secure orders from Agents and· to effect delivery of goods to them in the Company's vans. He was required to receive payments from the agents and to deposit the money with the cashier of the Company. The three charges on which he was tried and convicted were : on I 0th and 19th February, 1958 he receivd, on behalf of the Company, sums of R'- 300 and Rs. 240 respectively, from firm Isaq and· Som and on 3rd May, 1958 sum of Rs. 1502 from Bombay Fancy Stores, but failed to deposit these sums with the cashier. complaint was accordingly filed against him in the Court of the Chief Presidency Magistrate, Calcutta on August 29, 1958 .. The charges were framed against him under s. 408 I.P.C. on July 16, 1959. The prosecution proved the receipt of the money by him and his failure to deposit it with the cashier. His defence was that he had deposited the amount and that the case was sta•ted against him as counter-blast to dispute between him and V. D. Srivastava, sales supervisor, who had taken away certain documents from him and in respect of which he had filed· case against Srivastava, S. N. Mukerjea, General Manager, R. C. Burman, Managing Director and others before the Police Magistrate, Alipore. On August 17, 1959 the appellant served· through counsel on the complainant notice to produce in court on August 20, 1959 the following documents :

The documents were not produced. In the cross-examina-tion of some witnesses for the complainant suggestion was made that these documents were withheld because they would have demonstrated that the appellant had deposited the money with the cashier. A. C. Bumian (P.W. 7) was questioned and he replied as follows :-

" I know that defence wanted the production of Sale Book, Agency Ledger and the Regis-ter containing the commission of accused. Tue docu-ments were not produced as it was not possible to pro-duce the same without particulars. There are 20 Sale Books of 1958. It is not fact that the books were not produced as they would show that the complaint ts false "

'The appellant produced no evidence in rebuttal of the prose-cution case. The Presidency Magistrate recorded judgment of acquittal on March 7, 1960. He was of opinion that the only question was whether the accused had deposited the amount with the cashier of the Company. He held that the complainant had not been able to disprove the claim of the accused (appellant) that he had made the deposit. The learned Magistrate pointed out that some of the documents which the accused (appellant) had asked for were not produced by the complainant and the benefit of the doubt ought to go to the accused (appellant).

The complainant then obtained special leave under s. 417(3) of the Code of Criminal Procedure from the High Court of Cal-cutta to appeal against the acquittal. The appeal was heard by S. K. Sen and A. C. Roy JJ. On June 28, 1962, the learned Judges ordered the production of the documents in questioa and the taking of additional oral evidence to prove the documents. Tue order is brief and it may be conveniently set out here :

"After hearing the arguments on both sides it appears to be necessary to take certain additional docu-mentary evidence for arriving at just decision in the case. The documents in question are the agency led-gers for 1958 relating to the selling agents Md. Isaq and Sons and Bombay Fancy Stores; and the coilection book Part I of 1958 which supplements the collection book Part II which was marked as Ext. 19. The Presi-dency Magistrate S. N. Sanyal or his successor-Magistrate will please take the necessary evidence so that the above documents and registers are formally proved and allow

the accused an opportunity to cross-examrnc the wit-nesscs proving the documents. and then transmit the records with the rc.~isters and documents to this Court within pc•iod of si;o; weeks from the date."

The complainant thereupon produced the documents as order-ed and examined two witnesses in proof of the documents. The appel! was then heard and allowed and the acquittal of the appellant was set aside nnd he was convicted and sentenced as already stated. The High Court held that there was overwhelming evidence to prove the receipt of the three sums by th~ appellant and that the additional evidence demonstrated clearly that the money received by the appellant was not ·deposited with the cashier of the Company. The appellant has filed this appeal by special leave, and it is contended that the High Court acted beyond the jurisdiction conferred by s. ~28 of the Code of Criminal Pro-cedure in receiving additional evidence which has enabled the prosecution to improve it' case. This is the only point which was argued and which we need consider, because, if the evidence was rightly received. there is no doubt that the conclusion of the High Court on fact is correct.

The appellant strongly relics upon decision of this Court reported in Ahi11ash Chandra Bose v. Bima/ Krishna Sen and another( [1 ]) and the respondents upon Uk ha Ko/he v. State of Maharashtra.(') another case of this Court which is to be found in the same volume at p. 1531. Roth sides have referred us to many cases decided by the High Courts defining the powers Qf the appellate Coun to take additional evidence. The appellant con-tends that additional evidence could not be taken in the appeal agaimt the order of acquittal in the present case.

It may be stated at once that the Code docs not differentiate between the ambit of an appeal from conviction and that of an appeal from an order of acquittal except that ;in appeal against conviction is as of right and lies to Courts of different jurisdic-tion depending on the nature of sentence, the kind of trial and the court in which it was held. whereas an appeal against an order of acquittal can only be made to the High Court by the State Govern-ment or by complainant (where the case started on complaint) with the special leave of the High Court. The matters on which an appeal under the Code is admissible arc stated in s. 418 and they arc the same for the two kinds of appeals. Such appeals lie on matter of fact as well as matter of law (except in trials by (I) A.I.R. [l963J S.C. 316. (2) A.l.R. jl963J S.C. t5ll.

(2) A.l.R. jl963J S.C. t5ll.

R. P. MISRA V, STATE (Hidayatu/lah, J.)

July). The procedure for dealing with the tw? ki~ds ~f appeals is identical and the powers of appellate Courts m d1sposmg of the appeals, though indicated separately in s. 423 are in essence the same. Under that section the appellate Court (which means the High Court in an appeal against an order of acquittal) may-

"(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from conviction (!) ··everse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or ( 2) alter the find-ing, maintaining the sentence, or with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or with-out altering the finding alter the nature of the sentence but, subject to the provisions of section 106, sub-section ( 3), not so as to enhance the same;

Section 428 next provides :

"428. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evi-dence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by Magistrate, or when the Appellate Court is High Court, by Court of Session or Magistrate.

(2) When the additional evidence is tak~n 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) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken; but such evidence shall not be taken in the presence of jurers or assessors.

( 4) The taking of evidence under this section shall be

subject to the provisions of Chapkr XXV, as if it were an inquiry."

It was at or.e time felt that the powers of the High Court were somewhat limited when dealing with an appeal against an order of acquittal but tilat was dis:'el!ed by the Judicial Committee in Sheo Swamp & or hers v. King r:mperor( [1 ]) in categoric pro-nouncement I later accepted by this Court in many cases) that :

"There is ........ no foundation for the view appa-rentiy supported by th~ judgments or some Courts in India that the High Court has no power or jurisdiction to rcve~se an order of acquittal on matter of fact except in cases in which the lower court has 'obstinately blundered' or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to pro-duce positive miscarriage of justice', or has in some other way so conducted it~elf as to produce glaring miscarriage of justice or has been tricked by the defence so as to produ.ce similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be re-versed. No limitation should be placed upon that power unless it be found ¢xprcssly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (I) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presumption cer-tainly not weakened by the fact that he has been acquit-ted at his trial; (3) the right of the accused to the bene-fit of any doubt. and ( 4) the slowness of an appellate Court in disturbing finding of fact arrived at by Judge who had the advantage of seeing the witnesses."

The appellant relies upon certain observations of this Court in the case of Abinash Chandra Bose('). The accused in that case was prosecuted under s. 409, Indian Penal Code for mis-appropriating an amount belonging to his client who was the

The accused in that

complainant. Prosecution was based upon letter said to be \~Titten by him which he stated was forgery. No expert was examined by the complainant and the accused was acq~itted. The High Court set aside the acquittal and ordered retnal. It was held by this Court that this was against "all well-established rules of criminal jurisprudence" that "an accused person should not be placed on trial for the same offence more than once, except in very exceptional circumstances". Holding that if the High Court did not think that "the appreciation of the evidence by the trial court was so thoroughly etToneous as to be wholly unacceptable," "it should not have put the accused to the botheration and expense of second trial simply because the prosecution did not adduce all the evidence that should and could have been brought before the Court of first instance" and which "it was nowhere suggested had been refused to be received." Mr. Chakravarti contends that there is no essential difference between the taking of fresh evidence under s. 428 or the ordering of retrial under s. 423, that this evidence was always available and had, in fact, been asked to be brought in at the trial but was not, and the prosecution should not have another chance whether by way of retrial or additional evi-dence. The other side contends that in Ukha Ko/he's case(') the principles were restated exhaustively and that we should guide ourselves by the statement of the law laid down there. In that case there was conviction of the accused under s. 66 (b) of the Bombay Prohibition Act. Th~ report of the Chemical Examiner proved the existence of alcohol in the sample of blood but there were many points in the evidence of experts, which remained un-explained and their examination was perfunctory. On appeal the conviction was set aside and retrial was ordered. This Court in dealing with the order of retrial observed in the majority judg-ment:

"An order for retrial of criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or ten-H dering evidence material to the charge, and in the interests of justice the appellate Court deems it appro-

.186 SUPREME COURT REPORTS

priate having regard to the circumstances of the case, that the accused should be put on his trial again ..... "

It was pointed out that the Sessions Judge could have taken recourse to the po\\·er conferred by s. 428 and not ordered retrial.

taken

Section 428 occurs in Chapter XXXI which deals with . appeals. It speaks of any appeal under that Chapter and the wo~d 'any' means every one of the appeal·; (no matter which) men-tioned in the thirty-first Chapter of the Code. Section 417 ( 3) is in that Chapter and s. 428 clearly applied to the appeal \1hich was in the High Court. It only remains to determine the limits (if any) of the jurisdiction and power of the appellate Court (here the High Court) in ordering additional evidence and whether the limits so determined were exceeded by the High Court in the present case.Mr. Chakravarti contends that the discretion under s. 428 is subject to the same conditions as those in s. 423 and which were laid down in bina~/1 Chandra Bosr's case( [1]). He lays special emphasis on the condition that the prosecution should not be given second chance to fill up the gaps in its case. He submits that this has been done here. !\1r. Sarjoo Prasad on the other hand explains the Abinash Chandra Bose·s case with the aid of Uklw Ko/he's case(') and submits that in the latter, this Court 2ave an exhaustive list of circumstances in which an order for ret~ial can be made and indicated that in cases falling outside those circum-stances, the appellate Court has discretion to order additional evidence, if considered necessary.

These arguments disclose tendency to read the observations of this Court as statutory enactments. No doubt, the law declared by this Court binds Courts in India but it should always be remem-bered that this Court does not enact. The two cases of this Court point out that in criminal jurisdiction the guiding principle is that person must not be vexed twice for the same offence. That principle is embodied in s. 403 of the Code and is now included as Fundamental Right io Art. 20(2) of the Constitu1ion. The protection, however. is only as long as the conviction or acquittal stands. But the Code contemplates that retrial may be ordered after setting a'ide the convic1ion or acquittal (as the case may be) if the trial already held is found to be unsatisfactory or leads to -----· ·-·--·---···--

(c) A.l.R. lt%3j S.C. IS31.

R. P. MISHRA V. STATE (Hidayatu/lah, !.)

failure of justice. In the same way, the Code gives power to the appellate Court to take additional evidence, which, f_or reasons to be recorded, it considers necessary. The Code thus gives power to the appellate Court to order one or the other as the circum-stances may require leaving wide discretion to it to deal appro-priately with different cases. The two cases of this Court deal with situations in which retrial was considered necessary by the appellate Court. In the case of Abinash Chandra Bose, this Court held that the order for retrial was not justified. In Ukha Ko/he'~ case too the order for retrial was considered unnecessary because the end could have been achieved equally well by taking additional evidence. This Court mentioned, by way of illustration, some of the circumstances which frequently occur and in which retrial may properly be ordered. It is .not to be intagined that the list there given was exhaustive or that this Court was making clean cut between those cases where retrial rather than the taking of additional evidence was the proper course. It is easy to contem-· plate other circumstances where retrial may be necessary as for example where conviction or an acquittal was obtained by fraud, or trial for wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. Cases may arise where either of the two courses may appear equally appropriate. Since wide discretion is conferred on appellate Courts, the limits of that Court's jurisdic-tion must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt some analogy between the power to order retrial and the power to take additional evidence. The former is an extreme step approximately taken if additional evidence will not suffice. Both actions subsume failure of justice as condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations niade by this Court in the interpretation of the other section.

Additional evidence may be necessary for variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that addi-H tional evidence must be necessary not because it would be im-possible to pronounce judgment but because there would be failure of justice without it. The power must be exercised soaringly LSSup./65-13

188 SUPRBNB COUllT REPORTS

and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be receiv-ed in such way as to cause prejudice to the accused as for example it should not be received as disguise for retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under s. 428 were exercised. We were cited fair number at the hearing. Some of the decisions suffer from the sin of generalization and ~ome others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have .attempted this, if we could sec some useful purpose but we see none. We would be right in assuming the existence of discre-tionary power in the High Court and all that we consider neces-sary is to see whether the discretion was properly exercised.

The appellant here bad received three sums from the agents and the allegation was that he had misappropriated the amount. During his trial he asked for certain documents but for some reason, into which it is hardly necessary to go, they were not brought. There was oral evidence tending to show that the money was not credited with the cashier of the Company. The Magistrate was not inclined to accept oral evidence and basing himself entirely on this failure, ordered an acquittal. The High Court took additional evidence because it was of the opinion that this evidence was necessary. It is manifest that, if the High Court wished to rely on oral evidence, fair play at least demanded that the accused (appellant) should be given chance of seeing the documents where the deposit by him would be mentioned, if made. Mr. Chakravarti contends that the Magistrate had drawn pre-sumption against the complainant from the failure of the com-plainant to produce this evidence and the order of the High Court deprived the appellant of the benefit of the presumption. There is no force in this argument which may be rahed invariably in all cases in which the powers under s. 428 arc exercised. There was serious defalcation of money. The money was received and the only question was whether it was deposited or not. Oral evidence showed that it was not. The accu1ed insisted that the books of account should have been brought and so they were brought as result of the order. The accused himself demanded that evidence and but for the vagueness of his demand, this evi-

R. P. MISRA v. STATE (Hidayatullah, J.) I 89

dence would have been produced earlier. Rather than take different view of the oral evidence, the High Court rightly thought that interests of justice and fair play demanded that this additional evidence should be taken. In our judgment, the High Court acted within the powers conferred by the Code.

The appeal thus has no substance. It fails and is dismissed.

Appeal dismissed .