Code of Criminal Procedure, 1973 – Section 391 – Scope and Ambit of – Appellate Court may take further evidence or direct it to be taken – Encounter at Batla House – Voice sample compared with recorded conversations – Application for leading additional evidence – Principles Discussed.

Code of Criminal Procedure, 1973 – Section 391 – Appellate Court may take further evidence or direct it to be taken – Principles.

(i) The primary object of Section 391 Cr PC is prevention of the consequences of “some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth”.

(ii) Section 391 Cr PC is to prevent the ordering of a de novo trial. The doctrine of finality of judicial proceedings is not affected by the exercise of the power thereunder.

(iii) The power has to be exercised with caution and circumspection to meet the ends of justice.

(iv) Section 391 Cr PC is not to fill up the lacuna in the prosecution evidence but to serve the ends of justice. Only in exceptional and suitable cases, where the Court is satisfied that directing additional evidence would serve the ends of justice, will the power under Section 391 Cr PC be exercised.

(v) If the Appellate Court finds that certain evidence is necessary in order to give a correct and proper finding, it would be justified in exercising the power under Section 391 Cr PC. The ends of justice have to address as much the interests of the accused as that of the community through the State and the public prosecutor.

IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: JUSTICE S. MURALIDHAR JUSTICE I.S. MEHTA

09.02.2018

CRL.A. 1196/2013

SHAHZAD AHMED ….. Appellant Through: Mr. Satish Tamta, Senior Advocate with Mr S. Qamar, Mr. Shariq Iqbal and Mr. Abhishek Vikram, Advocates versus STATE ….. Respondent Through: Mr. Dayan Krishnan, Senior Advocate with Mr. Rajesh Mahajan, ASC and Ms. Radhika Kolluru, APP and Ms. Aakashi, Advocates for State

O R D E R

Dr. S. Muralidhar, J.:

Crl.M.A.1533/2018 in Crl.A.1196/2013

1. This is an application by the State under Section 391 of the Code of Criminal Procedure, 1973 („Cr PC‟) for permission to lead additional evidence before the trial Court, against the impugned judgment dated 25th July 2013 and order on sentence dated 30th July 2013 of which the present appeal has been filed by the Appellant accused.

2. It must be noted at the outset that, against the same impugned order on sentence dated 30th July 2013, the State has filed Crl. Appeal No. 1459 of 2013 praying for enhancement of the life imprisonment awarded to the Appellant to the death sentence.

3. The judgment by which the Appellant was convicted by the learned Additional Sessions Judge-02, South East District, Saket Court, New Delhi, was delivered in Sessions Case No.42/2010 arising out of the FIR No.208/2008 registered at Police Station („PS‟) Jamia Nagar. The Appellant was convicted for the offences under Sections 186, 353, 333, 307 and 302 Indian Penal Code („IPC‟) read with Section 34 IPC and for the offence under Section 201 IPC and Sections 27, 54 and 59 Arms Act, 1959. The Appellant was acquitted of the offence under Section 174A IPC. The Appellant was sentenced for the aforementioned offences by a separate order on sentence dated 30th July 2013. For the offence under Section 302 IPC read with Section 34 IPC, the Appellant was sentenced to imprisonment for life together with the fine of Rs.50,000/- and, in default of payment of fine, to undergo one year’s simple imprisonment.

Background

4. For the purposes of the present application, it is necessary to briefly recount the background to the trial. On 13th September 2008, at four different locations in Delhi, viz. Connaught Place, Karol Bagh, Greater Kailash and India Gate, there were bomb explosions in which 26 people were killed and 133 people suffered injuries.

5. Five FIRs were registered in relation to the said incidents of bomb blasts. FIR No.168/2008 was registered at PS Karol Bagh; FIR No.138/2008 at PS Greater Kailash; FIR No.293/2008 at PS Tilak Marg; and FIR Nos.418/2008 and 419/2008 at PS Connaught Place.