Ajay Gupta vs State Through Cbi on 22 October, 2005

Delhi High Court

Ajay Gupta vs State Through Cbi on 22 October, 2005
Author: R Chopra
Bench: 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 prayer
for issuing directions for recording additional evidence to further interests of justice and avoid
miscarriage of justice.
2. The facts relevant for the disposal of this application, briefly stated, are that the
appellant/petitioner stands convicted under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988, vide orders dated 5th July, 2003. The order on sentence was
dated 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 not
present at the spot nor had accepted bribe money as alleged by the prosecution. According to him, at
the time of alleged trap, he was present in Safdarjung Hospital in connection with investigations of
an accident case registered at Police Station, Badarpur and the Doctors, the records of the Hospital
and 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 in
defense but the witnesses did not turn up and his counsel made a statement closing defense perhaps
due to over-confidence that the prosecution case against the appellant was very weak. In these
premises, it is submitted that it would be in the interests of justice to direct recording of additional
evidence so that an innocent person does not get convicted in spite of abundant evidence to
establish that he is innocent.
4. Learned Counsel for the respondent has opposed this application mainly on the ground that the
appellant/petitioner had sufficient opportunity to produce the witnesses as well as material in his
defense but he failed to do so. It is also submitted that the order sheets dated 3rd April, 2003 and
2nd June, 2003, recorded by the Trial Court reveal that these defense witnesses were given up by
the defense counsel himself. Learned Counsel for the respondent also refers to the orders passed by
this Court on 27th July, 2005, by which the application of the appellant/petitioner to record
additional defense evidence was dismissed on the short ground that the witnesses were given up by
the 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 direct
recording of additional evidence if it is satisfied that the additional evidence is essential to promote
justice and prevent miscarriage of justice. The Courts do not exist merely for disposal of cases but
are established for dispensing justice. The bottom-line is that the Courts must ensure that there is
no failure of justice. Ordinarily in appeal, the Appellate Courts do not permit additional evidence for
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Ajay Gupta vs State Through Cbi on 22 October, 2005

the reason that the parties come before the Appellate Court after trial in which they get sufficient
opportunity 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 on
the outcome of the matter, the directions to record additional evidence must be issued to prevent
failure 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 be
achieved and there should be no failure of justice. The carelessness or negligence of a counsel or
ignorance of an accused do not stand in the way of the Appellate Court while considering such a
request. Procedural blockades cannot obstruct the flow of stream justice which has to be kept
flowing, unpolluted and uninterrupted.
7. In the case in hand, it is found that in his anticipatory bail application itself, the
appellant/petitioner had raised a plea that at the time of alleged raid and payment of bribe money to
him he was not present at Police Station Badarpur and in fact he was present at Safdarjung Hospital
in connection with the investigations of a case. This plea was raised in regular bail application even
but still the Investigating Officer did not care to carry out investigations into this plea and collect
evidence to show that the appellant was raising a false plea of alibi. The facts of the prosecution case
against 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 the
spot. The appellant was trying to raise a plea of mistaken identity also. In this situation, it was
necessary for the Investigating Officer to inquire into the plea of appellant/accused that he was
present somewhere else. If the appellant had manipulated records to raise a plea of alibi, the
Investigating Officer had good reasons and a duty to expose the falsity of his plea and take action
against 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 in
the case that the evidence as referred to in the application is recorded by the Trial Court as
additional evidence so that this Court may ascertain the truth of the matter before finally disposing
of the appeal filed by the appellant. It is true that the appellant had not produced these witnesses in
defense and his counsel had given up these witnesses in the Trial Court but that does not stand in
the way of this Court exercising powers under Section 311 read with Section 391 Cr. P.C., which are
meant for preventing miscarriage of justice. The main reason for giving up the witnesses was that
they 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 of
Appellate Courts to take additional evidence and held that additional evidence could be ordered if
the 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 it
is a fit case in which in exercise of its powers under Section 311 read with Section 391 Cr. P.C., this
Court 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 in
charge, HAP Branch, VI Battalion, DAP with records and send the recorded evidence to this Court
for the purpose of disposal of this appeal. As mentioned in the application itself, it would be the
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Ajay Gupta vs State Through Cbi on 22 October, 2005

responsibility of the appellant/petitioner himself to produce Dr. Bipin Kumar and Dr. Sumit Sural
before the Trial Court on the date/dates fixed for recording their statements. No summons will be
issued 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.

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