RAMBHAU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same and the same reads as below:

(2.) 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 vs. State of West Bengal (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.

(3.) 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 regard to the concept of fair play and justice, well being of the society.