LI Network
Published on: November 29, 2023 at 12:59 IST
The Kerala High Court has emphasized that when an Appellate Court deems that only additional evidence is necessary, it should resort to Section 391 of the Criminal Procedure Code (CrPC). The court clarified that this provision does not envisage a retrial.
Justice P.G. Ajithkumar, presiding over a Single Judge Bench, highlighted that whether it involves retrial under Section 386(b) or the collection of additional evidence under Section 391 of the CrPC, it is imperative for the accused to be examined under Section 313(1)(b) of the CrPC concerning the incriminating circumstances emerging from such additional evidence.
The court’s ruling arose from an appeal against a Karnataka High Court judgment that refused to quash proceedings in a case involving a complaint filed by the first respondent against the petitioner for issuing a dishonored cheque of Rs. 7,20,000.
The trial court, in its judgment, found that the petitioner’s defense was untenable and ordered remand to further examine evidence.
In response, the Kerala High Court clarified that the powers of revision under Section 397 of the CrPC are limited to assessing the correctness, legality, and propriety of a decision by an inferior court.
Citing the Supreme Court’s decision in Nasib Singh and others v. State of Punjab, the court underscored that the Appellate Court has unfettered powers to record additional evidence under Section 391 of the CrPC to serve the interests of justice.
The court explained that retrial may be ordered in cases of illegal, irregular, or defective trials, and it can also be mandated when a fair and proper trial is absent. However, if the Appellate Court deems that only additional evidence is required, it should invoke Section 391, which doesn’t entail a retrial.
The ruling directed the petitioner and the first respondent to appear before the Judicial Magistrate, who will record further evidence, examine the accused under Section 313(1)(b) of the CrPC, and submit the records, additional evidence, and certificates to the Appellate Court within three months.
Case Title: Jimmy George V. Sreekumar and Anr.