KESAVAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Kesavan Nair, the appellant in Crl. Appeal No. 332 of 1976 on the file of the I Addl. Sessions Judge, Trivandrum, is the revision petitioner. He was a lower division clerk employed as cashier in the University College, Trivandrum during December 1974. The case against him was that he misappropriated a total sum of Rs. 59.25 due to the University being the tuition fee collected by him from students by falsifying documents. The Chief Judl. Magistrate, Trivandrum, tried him for offences punishable under S.409 and 477A IPC. and on the conclusion of the trial found him guilty under the said sections, convicted him thereunder and sentenced him to suffer simple imprisonment for 3 months on each count with the direction that the sentences shall run concurrently. On appeal, the learned Sessions Judge set aside his convictions and sentences and sent back the case to the Trial Court directing it to take additional evidence and dispose of the case afresh in accordance with law.

(2.) The counsel for the revision petitioner submitted that S.391 of the Code of Criminal Procedure is the only section in the Code under which an appellate court is empowered to take additional evidence and strongly assailed the judgment of the appellate court on the ground that the direction to dispose of the case afresh is clearly illegal in as much as it has flagrantly violated the mandatory provisions in S.391 Crl. P.C.

(3.) It is not disputed and is also clear from the judgment that it was invoking the aid of S.391 Cr. P.C. that the appellate court sent back the case for taking additional evidence. S.391 of the Code corresponds to S.428 of the Code of 1898. Sub-sections (1) and (2) of S.391 correspond to and reproduce verbatim sub-s.(1) and (2) of S.428. It is not fully correct that S.391 is the only section under which an appellate court can take additional evidence. Powers have been conferred on appellate courts under S.367 and 311 of the Code of Criminal Procedure also to call for additional evidence. Under S.367, when a case is before it for confirmation of a sentence of death, the High Court has been given power to take additional evidence, if it so desires. S.311 is a general section under which a court can take additional evidence by summoning any person as a witness or examining any person in attendance though not summoned or recalling a witness who has already been examined.