AI Drafter 
TaxTMI 
TaxTMI 
2001 (4) TMI 937
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....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. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and another (AIR 1965 SC 1887) in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependant upon the fact-situation of the matter and having due reg....
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....s been advanced. Such a contention was rejected and we think rightly in 57 Calcutta W.N.882: (AIR 1953 Calcutta 773). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. Blacks Law Dictionary defines the word as not according to rule and not regular i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute book has been for the purpose of making it available to the Court nor to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. The High Court itself records to rectify the irregularity, the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of sub- serving the ends of justice, the same runs counter to the concept of justice. It is at this stage however, the entire factual set up ought to be adverted to. On 19-01-1989 one Mr. Hiwanje lodged a complaint of abuses and quarrel between Sangamlal and his wife. The Appellant No.1 being the Sub-Inspector called them to the Police S....
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....ner is not otherwise competent to accord sanction to prosecute. The High court negatived it and we do not see any reason for a different conclusion in the matter. Significantly, even the defence counsel, as has been recorded in the judgment, could not support such a reasoning. As regards the merit, the learned Special Judge held that the demand and acceptance by the Appellant No.1 have not been proved. The learned Special Judge in his judgment did mention the instance of demand on 22nd January and reached a conclusion that the same has not been proved but there has been a total omission as regards the demand on 23rd January. This aspect of the matter has been elaborately dealt with by the High Court and the High Court upon consideration of all relevant evidence came to a conclusion that taking into account the version of Sangamlal, the complainant and that of Tijare (P.W.7), there cannot be any manner of doubt that the prosecution has fully established the demand by Appellant No.1 on 23rd January, 1989. As regards the demand and acceptance on 24th January, 1989, the High Court also negatived the finding of the learned Special Judge who reached a conclusion that the demand on 24th J....
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.... needed the change of the notes. It was also not suggested that the complainant in any manner was in need of the notes of smaller denominations. As such the entire claim as put forth by the accused No.2 is completely infirm. It goes to suggest that he took the mission of getting the notes changed as decided earlier. His defence that he happened to be in Shere Punjab Hotel and incidentally the complainant came there, is patently false. Taking into account the evidence of PW 1 Sangamlal, PW 3 Manapure, PW 4 Dongre, PW 5 Hadke, PW 6 Wadekar and PW 7 Tijare it is fully established that it is the accused No.2 who took the complainant for getting the notes exchanged. Even otherwise the defence has not seriously challenged the testimony of PW 4 Dongre, PW 5 Hadke and PW 6 Wadekar in this behalf. Mr. Verma, the learned Senior Advocate very strognly contended that High Court had no authority or jurisdiction to examine the accused persons in the High Court to rectify the defect and the lacuna in the prosecution. The High Court records it to be a mere irregularity and on the complexities of issue, we do not see any reason as to why such a course ought not to be permitted to be taken recour....