LexRAJESWAR PROSAD MISRA versus STATE OF WEST BENGAL & ANR.
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178
RAJESWAR PROSAD MISRA
v.
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
a 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 a
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 a 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 a
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 a
failure of justice.
In the same v.·ay. the Code gives a 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 a 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 a way a<> to cauc;e prejudice to the accus--
ed. a.o; for cxaniple, it should not be received as a disguise for a 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 a fair
opportunity and has not
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R. P. MISRA V. STATE (Hidayatullah, J.)
I 79.
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 sentenExcerpt shown. Read the full judgment & AI analysis in Lexace.