STATE Vs. JAI PRAKASH

JUDGEMENT

(1.) One Jai Prakash was tried before an Assistant Sessions Judge of Meerut, of an offence under Section 409 I. P. C., for embezzlement of certain Government funds. His principal defence was that he had deposited the money in the Government treasury, and in support of this plea he cited a number of Government officials as defence witnesses. The learned Assistant Sessions Judge made several attempts to secure the attendance of these witnesses, but none of them appeared; hence, refusing to allow any further adjournment, he accepted the evidence led on behalf of the prosecution, found Jai Prakash guilty and sentenced him to imprisonment for less than four years. Jai Prakash took an appeal to the Court of Session, and the appeal was heard by an Additional Sessions Judge, Mr. Ram Ratan Kaushik. Mr. Kau-shik upheld the plea that the defence case had been seriously prejudiced bv the non-examination of the defence witnesses, and holding that these witnesses were necessary ones he directed the Assistant Sessions Judge under Section 428 Cr. P. C., to record the evidence of the witnesses concerned and to certify such evidence to him. The State Government thereupon filed a Revision before this Court contending that Mr. Kau-shik's order was contrary to law inasmuch as he had no jurisdiction under section 428 of the Code to get the fresh evidence recorded by an Assistant Sessions Judge. The Revision was heard by our brother Bishambhar Dayal, and in the course of arguments the decision of a single Judge of the erstwhile Chief Court of Oudh in Hori Lal v. Emperor, AIR 1935 Oudh 402 (A) was cited before him. Feeling doubtful about the correctness of that decision he referred the case to a Division Bench, and accordingly the Revision is before us for disposal.

(2.) Section 428 occurs in Chapter XXXI of the Code which bears the title "of Appeals," and entitles the appellate Court to take further evidence or direct it to be taken by a subordinate Court. The section forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court. Its manifest object is the prevention of a guilty man's escape through some careless or ignorant proceedings of a trial Court or the vindication, of an innocent person wrongly accused where the trial Court through some carelessness or ignorance has omitted to record the evidence of the circumstances essential to the elucidation of the truth, Being an exception to the general rule the powers under it must always be exercised with circumspection, and the doing of justice should be the goal invariably aimed for.

(3.) The first clause of the section is in these-words :