REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  174    OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6489 OF 2006]

SUDEVANAND … APPELLANT

VERSUS

STATE THROUGH CBI … RESPONDENT

WITH

CRIMINAL APPEAL NO.  175    OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6625 OF 2006]

SANTOSHANAND … APPELLANT

VERSUS

STATE THROUGH CBI … RESPONDENT

AND

CRIMINAL APPEAL NO.  176   OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.6800 OF 2006]

RANJAN DWIVEDI … APPELLANT

VERSUS

STATE THROUGH CBI … RESPONDENT

1

J UD G M E N T

Aftab Alam, J.

1. Leave granted.

2. On March 20, 1975, at about 4.15 p.m. when the car in which Mr.  

Justice A.N. Ray, holding the office of the Chief Justice of India at that time,  

was travelling, along with his son Shri Ajoy Nath Ray and a Jamadar Jai  

Nand and the driver Inder Singh, stopped at the intersection of Tilak Marg  

and Bhagwan Dass road, at a stone throw distance from the Supreme Court  

of India, two live hand grenades were lobbed inside the car.  Fortunately, the  

grenades did not explode and the occupants of the car, including the Chief  

Justice of India, escaped unharmed.   

3. A case  was  registered  and  investigation  was  started  by  the  Crime  

Branch of the Delhi Police.  But, as the police investigation did not make  

much headway, on June 30, 1975 the case was handed over to the CBI.  On  

the same day,  one Santoshanand Avadhoot  (appellant  in  Criminal  appeal  

arising out of SLP (Criminal) 6625 of 2006) was arrested followed by the  

arrest of an advocate, namely, Ranjan Dwivedi (appellant in criminal appeal  

arising out of SLP (Crl.) No.6800/2006) on July 6, 1975.  

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4. Here, it may be noted that about two and a half months before the  

attempt  on  the  life  of  the  Chief  Justice  of  India,  Shri  L.N.  Mishra,  the  

Minister of Railways in the Union Cabinet was killed in a bomb blast taking  

place during a function on the platform of Samastipur Railway Station.  In  

connection  with  that  case,  Sudevanand  Avadhoot  (appellant  in  criminal  

appeal  arising  out  of  SLP  (Crl.)  No.6489/2006)  and  one  Vikram  alias  

Jaladhar Das were arrested at Bhagalpur. On July 27, 1975 they were also  

arrested in the present case relating to the attempt on the life of the Chief  

Justice and were brought to Delhi where they were sent on police remand  

from July 31, 1975 to August 14, 1975. While on remand, Vikram made a  

confessional statement and requested to be allowed to become an Approver.  

He was produced before a Magistrate on August 14, 1975, before whom he  

made a statement under Section 164 of the Code of Criminal Procedure (in  

short “Cr.P.C.”) giving the details of the conspiracy to kill the Chief Justice  

of India.  He was again produced before the Chief  Judicial  Magistrate on  

August  22,  1975 before  whom he made  a  similar  statement  for  grant  of  

pardon under Section 306 Cr.P.C.

5. The CBI completed investigation of the case and submitted charge-

sheet  against  the  three  accused,  namely,  Sudevanand,  Santoshanand  and  

Ranjan Dwivedi  and they were  put  on trial  in Sessions Case No.9/1976.  

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Sudevanand and Santoshanand were charged under Section 307 read with  

Section 120-B of the Indian Penal Code and Section 4(b) of the Explosive  

Substances  Act,  1908.   So  far  as  Ranjan  Dwivedi  is  concerned,  he  was  

charged jointly with the other two accused under Section 120 B of the Penal  

Code only.  At the conclusion of the trial, the Additional Sessions Judge,  

Delhi  vide  his  judgment  and  order  dated  October  28,  1976  convicted  

Sudevanand and Santoshanand under Sections 115, 307/120B of the Penal  

Code  and sentenced  them to  undergo  rigorous  imprisonment  for  7  years  

under Section 115 read with 120-B(1), 10 years for attempting to kill Chief  

Justice A. N. Ray and three other occupants of the car and 7 years under  

Section 4(b) of the Explosive Substances Act, 1908.  Ranjan Dwivedi was  

convicted under Section 115/120 B(1) of the Penal Code and was sentenced  

to 4 years rigorous imprisonment.

6. It may be noted here that Vikram, the Approver was examined by the  

prosecution  as  PW.1  and  according  to  the  appellants  their  conviction  is  

mainly based on his evidence.  

7. Against  the  judgment  and  order  passed  by  the  trial  court,  Ranjan  

Dwivedi filed appeal before the High Court on December 6, 1976 which is  

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registered as Criminal Appeal No.436/1976. Sudevanand and Santoshanand  

jointly filed a separate appeal which is registered as 443/1976.

8. After  the  appellants’  trial  was  over,  and  they  were  convicted  and  

sentenced by the trial court, as noted above, and after they had filed their  

appeals before the High Court against the judgment and order passed by the  

trial court, certain developments took place in the L. N. Mishra murder case.  

That case was also investigated by the CBI and in that case too Sudevanand  

and Santoshanand (along with others) were accused and in that case also  

Vikram was granted pardon on becoming an Approver.  According to his  

statements made before the Magistrates both the killing of L. N. Mishra and  

the  attempt  on  the  life  of  Chief  Justice  of  India  were  parts  of  a  larger  

conspiracy, at the instance of the same organisation and a common group of  

persons.

9.  On  August  30,  1978,  the  Chief  Minister  of  Bihar  wrote  a  highly  

confidential  letter  to  the  Prime  Minister  of  India,  a  copy  of  which  was  

endorsed to the DIG (CID) Bihar.   In  pursuance of  the Chief  Minister’s  

letter, the DIG (CID) is said to have made an inquiry into the circumstances  

in which Vikram @ Jaladhar Das had made the confessional statement and  

was  tendered  pardon  to  become  Approver.  Following  the  enquiry,  on  

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September 30, 1978 the statement of Vikram was recorded at Danapur jail  

where he was lodged at that time. The statement was taken in the question  

and  answer  form  and  it  was  recorded  in  the  presence  of  Dr.  D.  Ram,  

Superintendent;  Danapur  Hospital,  (Ex-officio  Jail  Superintendent)  and  

Haider Ali, the Jailor. The statement was also recorded on a tape recorder. In  

this  statement  Vikram retracted  from his  earlier  statements  incriminating  

himself and the other accused in the case. He said that his earlier statements  

were obtained by the CBI by subjecting him to great mental and physical  

torture. He was beaten up and tortured to such an extent that he agreed to  

make whatever statement CBI wanted him to make. The retraction made by  

Vikram was placed before the Chief Minister who requested Mr. Tarkunde,  

a former judge of the Bombay High Court to give a report in light of the  

statement made by Vikram in jail on September 30, 1978. Mr. Tarkunde is  

said to have given his opinion that the conviction of all the accused in the  

Chief Justice’s case was based on fabricated evidence of the Approver and,  

therefore, the High Court should be requested to consider the appeals of the  

three accused keeping aside the Approver’s evidence. We need not go any  

further in this matter, as all this was plainly outside the legal frame-work.

10. It needs, however, to be noted that upset by these developments, the  

CBI moved this Court in Transfer Petition (Crl.) No. 69/1979 praying for the  

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transfer of the trial of the L.N. Mishra murder case outside Bihar. In the  

transfer petition though the State of Bihar was not formally made a party, a  

number  of  allegations  were  made  against  some  of  its  officers.  In  those  

circumstances,  the concerned officers after  obtaining permission from the  

State Government, filed affidavits/applications denying the allegations made  

against  them in the transfer  petition filed by the CBI and supporting the  

veracity of the retraction made by Vikram in Danapur jail on September 30,  

1978 disowning the earlier statements made by him. In the overall facts and  

circumstances of the case, however, this Court deemed just and proper to  

transfer the trial of the L.N. Mishra murder case from Bihar to Delhi where  

it  now  remains  pending  as  Sessions  Case  No.  1/2006  (after  being  

renumbered) before the Additional Sessions Judge, Delhi.  

11. It is curious to note that in the L.N. Mishra murder case Vikram was  

examined by the prosecution as PW.2 and in course of his deposition before  

the court he said that the statement made by him at Danapur jail was not  

voluntary  but  he  was  forced  to  make  the  statement  under  coercion  and  

threats  by  the  Chief  Secretary,  Law  Secretary  and  Home  Secretary,  

Government of Bihar and the SP and the DSP in the State Police. He said in  

his deposition before the court that his statement in jail was made on the  

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basis  of  a  statement  prepared  and  given  to  him in  writing  by  the  State  

Government officers.   

12. Coming back to the appellant’s appeal pending before the Delhi High  

Court,  both Sudevanand and Santoshanand were released on bail  in 1986  

after remaining in jail for almost 11 years. In 1997-1998, that is to say 11  

years  after  coming  out  of  jail,  the  appellants  filed  three  criminal  

miscellaneous applications in the pending appeals. Criminal miscellaneous  

application No. 5786/97 was filed on September 24, 1997 praying to call for  

and  taking  on  the  appeal  record  the  statement  made  by  Vikram,  the  

Approver,  in  Danapur  jail  on  September  30,  1978,  the  affidavits  of  the  

officials of the Bihar Government filed in the transfer petition before this  

Court and the enquiry report of Justice Tarkunde. The second application  

(criminal miscellaneous) No.5700/98 was filed on September 16, 1998 to  

summon  Vikram,  the  Approver  (PW.1  in  the  case),  for  further  cross-

examination  in  terms  of  Section  145  of  the  Evidence  Act.  The  third  

application (criminal miscellaneous) No.6300/98 was filed on October 15,  

1998 praying to call the evidence of Vikram, the Approver (PW.2), recorded  

in the trial of L.N. Mishra murder case.

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13. The Delhi High Court took up all  the three criminal miscellaneous  

applications and disposed them of by order dated November 22, 2006. The  

High Court noted that it was within the knowledge of the appellants that the  

Approver had made the retraction in the year  1978 disowning his earlier  

statements but the three applications in question were filed after a lag of  

more than 20 years and primarily for that reason did not allow all the prayers  

made in the three applications but granted the appellants only a limited and  

partial relief. In the operative portion of the order the High Court observed  

and directed as follows:

“The last application moved by the appellant for considering the  record, certified copies etc. u/s 80 and other provisions under the  Evidence  Act,  report  of  justice  V.M.  Tarkunde  and  other  documents which may be admissible under the Evidence Act has  to  be  permitted.  This  prayer  is  being  kept  open  and  would  be  considered as per law.

Succinctly  stated,  the  applications  for  leading  further  evidence  which would have entailed further time are hereby dismissed, but  the third application for considering those documents which have  already been placed on the record as per law, is hereby permitted.  This case is fixed for final arguments on 6th December, 2006 at  12.15 P.M. The case would be taken up on day to day basis.”

Against the order passed by the High Court, the appellants have come to this  

Court in these appeals.

14. Mr.  Lahoty  and  Mr.  Arvind  Kumar,  counsel  appearing  for  the  

appellants in the three appeals placed before the Court passages from the  

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statement  of  Vikram  recorded  in  Danapur  jail  on  September  30,  1978  

describing the manner in which his earlier statements, incriminating himself  

and the other  accused,  were obtained by the CBI.  Referring to the latter  

statement of Vikram, counsel submitted that denial to further cross-examine  

him in  light  of  his  statement  of  September  30,  1978 would cause  grave  

prejudice to the appellants and would lead to a miscarriage of justice. Mr.  

Lahoty stated that the accused in the L.N. Mishra murder case had earlier  

come  to  this  court  for  quashing  the  trial  proceedings  and  their  appeal  

(Criminal Appeal No. 126 of 1987) was heard along with the case of Abdul  

Rehman Antulay and was disposed of by a common judgment reported in  

(1992) 1 SCC 225. In paragraph 98 of the judgment, the Court noted the  

submission made on behalf of the appellants that a very unusual feature of  

the case was the exchange of charges and counter charges between the CBI  

and the Bihar (CID) of false implication and frame up against each other.  

According to the Bihar (CID), the CBI was guilty of frame up against the  

members of Anand Marg, while according to CBI, the Bihar (CID) had been  

deliberately  proceeding against  innocent  persons while  letting of  the  real  

culprits. Mr. Lahoty submitted that as a result of the Central Investigating  

Agency and the State Investigating Agency acting at cross purpose, the case  

had become highly murky to the great detriment of the appellants. He further  

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submitted  that  in  that  situation  if  the  appellants  are  not  allowed  the  

opportunity to further cross-examine Vikram, the Approver (PW.1), it would  

be highly unfair and unjust to them. He also submitted that the Delhi High  

Court was wrong in rejecting the applications made by the appellants on the  

ground of delay.        

15. Mr.  Arvind Kumar  in  support  of  the  plea  raised by  the  appellants  

placed reliance on the decision of this Court in Zahira Habibulla H. Sheikh  

v. State of Gujarat, (2004) 4 SCC 158, commonly known as the Best Bakery  

Case. He also pressed into service a decision of this Court in Pandit Ukha  

Kolhe v. State of Maharashtra, 1964 (1) SCR 926 (939-940).

16. So far as the  Best Bakery Case is concerned, we see absolutely no  

application of that decision to the facts of the present case. Suffice to note  

here that in Satyajit Banerjee v. State of W.B., (2005) 1 SCC 115, the Court  

explained the very exceptional nature of the Best Bakery Case and observed  

that  the  decision  cannot  be  applied  to  all  cases  against  the  established  

principles of criminal jurisprudence  (See paragraph 25 & 26 in  Satyajit   

Banerjee).

 17. We also fail to see how the decision in Pandit Ukha Kolhe might help  

the appellants in the present appeals.

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18. We agree with Mr. Lahoty’s submission that the delay in filing the  

applications  should  not  have  been  the  sole  ground  for  rejecting  the  

appellants’ applications before the High Court. The High Court does not say  

that the appellants were in anyway responsible for the inordinate delay in  

their appeals, that remains pending since 1976, being taken up for hearing.  

That being the position, as long as the appeals were pending, the High Court  

should  have  considered  the  appellants’  request  for  summoning  PW.1 for  

further  cross-examination  on  merits,  and  in  light  of  the  relevant  legal  

provisions.  Mr.  Lahoty is  also right  in submitting that  any further  cross-

examination of PW.1 would not have taken more than two or three days and  

would not have contributed to any further delay in the disposal of the appeal  

in any material way.

19. But the question remains to be examined whether the law permits the  

summoning of PW.1 for the reason as stated on behalf of the appellants.

20. Mr. P.K. Dey, the counsel appearing for the CBI, strongly opposed the  

appellants’ prayer for summoning Vikram, the Approver (PW.1), for further  

cross-examination  in  light  of  his  statement  recorded  in  Danapur  jail  on  

September 30, 1978. Learned counsel submitted that Vikram had made his  

confessional  statements  completely  voluntarily  and  on  three  different  

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occasions. He was produced before the Magistrate on August 14, 1975 for  

recording his statement under Section 164 Cr.P.C. He was then produced  

before the Chief Judicial Magistrate on August 22, 1975 for recording his  

statement  for  grant  of  pardon under Section 306 Cr.P.C. Finally,  he was  

produced before the trial court as PW.1 where he was examined first by the  

prosecution and was then subjected to a lengthy cross-examination on behalf  

of  the  accused.  On  none  of  the  three  occasions  he  made  the  slightest  

complaint that his statements were obtained under coercion or threats. He  

was  also  produced  before  the  Magistrate  many  times  for  the  purpose  of  

remand and for other purposes, such as taking cognizance, commitment of  

the case to the court of Sessions and also before the trial court where the trial  

proceeded and got concluded and at no point of time he gave any indication  

that  his  statements/evidence  were  given  under  any  coercion,  threats  or  

inducement.

21. Mr.  Dey  also  submitted  that  the  statement  of  Vikram  that  was  

recorded in Danapur jail on September 30, 1978 had no legal sanctity, as it  

was recorded in a manner and by means completely unknown to law. It also  

did not qualify as the previous statement within the meaning of Section 145  

of the Evidence Act as in fact, it was later in time than the deposition of  

PW.1 in this case before the trial court. He also referred to passages from the  

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deposition of Vikram, the Approver, made in the trial of the L.N. Mishra  

murder case in which he was examined as PW.2 where he stated that his  

statement of September 30, 1978 recorded in Danapur jail was not voluntary  

but it was made under threats from the top officials of the State Government.

22. Mr.  Dey  submitted  that  the  statement  made  by  Vikram in  jail  on  

September 30, 1978 could never be the basis for summoning him for further  

cross-examination  at  the  stage  of  the  appeal  and  in  support  of  this  

submission relied upon a decision of this Court in Mishrilal v. State of M.P.,   

(2005) 10 SCC 701. In that case, one of the prosecution witnesses (PW.2)  

had  supported  the  prosecution  case  before  the  trial  court  but  before  the  

Juvenile Court that was trying some of the juvenile accused in the same case  

he did not support the prosecution case and as a result, the juvenile accused  

were acquitted of the charge under Section 307 IPC for having made an  

attempt on the life of this witness. After his evidence before the Juvenile  

Court,  he  was  again  summoned  before  the  trial  court  where  the  other  

accused were facing trial and was confronted with the evidence he had given  

before  the  Juvenile  Court.  This  Court  found and held that  the  procedure  

adopted  by  the  Sessions  Judge  was  not  in  accordance  with  law  and  in  

paragraphs 5 and 6 of the judgment observed and held as follows:

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“5. The learned Counsel for the appellants seriously attacked the  evidence of PW.2 Mokam Singh. This witness was examined by  the Sessions Judge on 6-2-1991 and cross-examined on the same  day by the defence counsel. Thereafter, it seems, that on behalf of  the accused persons an application was filed and PW.2 Mokam  Singh  was  recalled.  PW.2  was  again  examined  and  cross- examined on 31-7-1991. It may be noted that some of the persons  who were allegedly involved in this incident were minors and their  case was tried by the Juvenile Court. PW.2 Mokam Singh was also  examined as a witness in the case before the Juvenile Court. In the  Juvenile  Court,  he  gave evidence  to  the  effect  that  he  was  not  aware of the persons who had attacked him and on hearing the  voice of the assailants, he assumed that they were some Banjaras.  Upon  recalling,  PW.2  Mokam  Singh  was  confronted  with  the  evidence he had given later before the Juvenile Court on the basis  of which the accused persons were acquitted of the charge under  Section 307 IPC for having made an attempt on the  life  of  this  witness.

6. In our opinion, the procedure adopted by the Sessions Judge  was not  strictly  in  accordance  with  law.  Once the  witness  was  examined-in-chief and cross-examined fully, such witness should  not have been recalled and re-examined to deny the evidence he  had already given before the court, even though that witness had  given an inconsistent statement before any other court or forum  subsequently. A witness could be confronted only with a previous  statement  made  by  him.  At  the  time  of  examination  of  PW.2  Mokam Singh on 6.2.1991, there was no such previous statement  and the defence counsel did not confront him with any statement  alleged  to  have  been made previously.  This  witness  must  have  given some other version before the Juvenile Court for extraneous  reasons and he should not have been given a further opportunity at  a later stage to completely efface the evidence already given by  him under oath. The courts have to follow the procedures strictly  and cannot allow a witness to escape the legal action for giving  false evidence before the court on mere explanation that he had  given it under the pressure of the police or for some other reason.  Whenever  the  witness  speaks  falsehood  in  the  court,  and  it  is  proved satisfactorily, the court should take a serious action against  such witnesses.”

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23. The decision in Mishrilal was followed in Hanuman Ram v. State of   

Rajasthan and others, (2008) 15 SCC 652.   The case of Mishrilal had come  

to  this  Court  after  the  appeal  court  had  maintained  the  conviction  and  

sentence  passed  against  the  accused.  But  Hanuman  Ram came  at  the  

intermediate stage when the trial court was directed by the High Court to  

recall  two prosecution witnesses  under  Section 311 of  the  Cr.P.C.  under  

similar circumstances. In  Hanuman Ram too, two of the witnesses (PWs 3  

and 5) who had supported the prosecution case before the trial court did not  

support the case of the prosecution before the Children’s Court where one of  

the accused in the case who was a minor was being tried. Before the trial  

court an application was made under Section 311 Cr.P.C. for summoning  

those two witnesses for cross-examination with reference to their statements  

before the Children’s Court. The trial court did not accept the prayer and  

rejected  the  petition.  On  an  application  in  revision,  the  High  Court  

intervened in favour of the accused and directed the trial court to recall and  

re-examine the two witnesses. In appeal against the High Court order, this  

Court following the earlier decision in Mishrilal, held that there was no legal  

foundation for  recalling  the  witnesses  under  Section 311 Cr.P.C.  and set  

aside the High Court judgment.  

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24. At first sight, the decisions in  Mishrilal and  Hanuman Ram seem to  

clinch the issue arising in the case. But, on a deeper examination, it would  

appear that the decision in  Mishrilal did not interpret Section 311 Cr.P.C.  

defining the import, scope and ambit of the provision contained therein. It  

rather said that on the facts of the case, the provision had no application and  

the procedure adopted by the trial court was not strictly in accordance with  

law. Now, the interpretation of a legal provision and its application to a set  

of  facts  are  two  different  exercises  requiring  different  approaches.  

“Interpretation” means the action of explaining the meaning of something.  

For interpreting a statutory provision, the court is required to have an insight  

into the provision and unfold its meaning by means of the well-established  

canons of interpretation, having regard to the object, purpose, historicism of  

the law and several other well-known factors. But, what is important to bear  

in mind is that the interpretation of a legal provision is always independent  

of  the  facts  of  any given  case.  “Application”  means  the  practical  use  or  

relevance  (of  something  to  something);  the  application  of  a  statutory  

provision,  therefore,  is  by  definition  case  related  and  as  opposed  to  

interpretation,  the  application  or  non-application  of  a  statutory  provision  

would always depend on the exact facts of a given case. Anyone associated  

with  the  process  of  adjudication  fully  knows  that  even  the  slightest  

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difference in the facts of two cases can make a world of difference on the  

question whether or not a statutory provision can be fairly and reasonably  

applied to it.  Keeping in mind what is  said here if  we read  Mishrilal, it  

would  be  evident  that  in  the  over  all  facts  of  that  case,  the  Court  was  

satisfied that the statement of the witness (PW.2, Mokam Singh) before the  

Juvenile Court was for some extraneous reasons and, therefore, he should  

not  have  been allowed an  opportunity  to  completely  efface  the  evidence  

already given by him under oath. The Court with its vast experience of the  

way  criminal  justice  system  works  in  our  country  was  in  a  manner  

commenting upon the serious and widespread malady of prosecution witness  

being won over by the accused.  Once the Court  came to realise  that  the  

witness was gained over before he was examined in the Juvenile Court, it  

naturally felt that at least he should not have been allowed to spoil the other  

case  too  and  it  would,  therefore,  logically  follow that  his  recall  and re-

examination in the trial of the other accused before the Sessions Court was  

an abuse of Section 311 of the Cr.P.C. To us, it appears that it was mainly  

due to that reason that the Court frowned upon the latter evidence of PW.2  

taken by the Sessions Court on his recall after his examination before the  

Juvenile Court.

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25. Moreover,  in  Mishrilal the question that came up for consideration  

before the Court was whether the deposition of Mokam Singh (PW.2) before  

the Juvenile Court would come within the meaning of “previous statement”  

under Section 145 of the Evidence Act so as to justify his recall for further  

cross-examination confronting him with his deposition before the Juvenile  

Court. The Court answered the question in the negative pointing out that at  

the time of his examination earlier before the Sessions Court there was no  

such statement with which he could be confronted by the defence.   

26. In  Hanuman Ram,  on identical  facts  and for  the  same reasons  the  

Court simply followed the decision in Mishrilal.

27. The  facts  of  the  case  before  us  are  quite  different.  It  is  not  only  

Vikram who is making diametrically opposite statements but the CBI and  

the State (CID) seem to be at loggerheads with the one accusing the other of  

manipulating and using Vikram for its own designs. It is an unusual case by  

any reckoning.  

28. It is obvious that one of the two statements of Vikram is false. But  

unlike  Mishrilal or  Hanuman  Ram where  the  Court  was  able  to  sense  

without difficulty that the witnesses’ depositions before the Juvenile Court  

and the Children’s Court respectively were false, it is very difficult to say at  

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this stage which of the statements is true and which of the statement was  

made under the influence,  threat  or coercion by the State officials or the  

CBI.  The  position  may  be  clear  in  case  he  is  subjected  to  further  

examination  with  reference  to  his  statement  made  in  Danapur  jail  on  

September 30, 1978.

29. The matter may be looked at from another angle. Section 391 of the  

Cr.P.C. provides as follows:

“391. Appellate Court may take further evidence or direct it  to be taken.– (1) In dealing with any appeal under this Chapter,  the  Appellate  Court,  if  it  thinks  additional  evidence  to  be  necessary,  shall  record  its  reasons  and  may  either  take  such  evidence itself, or direct it to be taken by a Magistrate, or, when  the Appellate Court is a High Court, by a Court of Session or a  Magistrate.

(2) When the additional evidence is taken by the Court of Session  or  the  Magistrate,  it  or  he  shall  certify  such  evidence  to  the  Appellate  Court,  and  such  Court  shall  thereupon  proceed  to  dispose of the appeal.

(3) The accused or his pleader shall have the right to be present  when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to  the provisions of Chapter XXIII, as if it were an inquiry. ”

30. It is, thus, to be seen that the provision is not limited to recall of a  

witness  for  further  cross-examination  with  reference  to  his  previous  

statement.  The  Appellate  Court  may feel  the  necessity  to  take additional  

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evidence for any number of reasons to arrive at the just decision in the case.  

The law casts a duty upon the court to arrive at the truth by all lawful means.  

This is another reason why we feel any reliance on Mishrilal that considered  

the recall of a witness in the context of Section 145 of the Evidence Act is  

quite misplaced in the facts of this case.   

31. Mr. Dey contended that Vikram’s statement that he is alleged to have  

made in jail has no legal sanctity and it came to be made and recorded in a  

manner  completely  unknown  to  law.  Mr  Dey  may  be  right  but  on  that  

ground alone it would not be correct and proper to deny the application of  

Section 391 of the Cr.P.C. Take the case where, on the testimony of the  

Approver, a person is convicted by the trial  court  under Section 302 and  

120-B etc.  of the Penal  Code and is sentenced to a life term.  After the  

judgment and order passed by the trial court and while the convict’s appeal  

is pending before the High Court, the ‘Approver’ is found blabbering and  

boasting among his friends that he was able to take the Court for a ride and  

settled his personal score with the convict by sending him to jail to rot at  

least for 14 years. Such a statement would also be completely beyond the  

legal framework but can it be said that in light of such a development the  

convicted accused may not ask the High Court for recalling the Approver for  

further examination.

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32. As a matter of fact, if some later statement, has come to be made in  

some legal ways, it may be admissible on its own without any help from  

Section  311  or  Section  391  of  the  Cr.P.C.  It  is  only  such  statement  or  

development which is otherwise not within the legal framework that would  

need the exercise of the Court’s jurisdiction to bring it before it as part of the  

legal record.

33. In  light  of  the  discussions  made  above,  we  have  no  hesitation  in  

holding that the High Court was in error in refusing to summon Vikram, the  

Approver (PW.1) for his further examination as prayed for on behalf of the  

appellants.  We, accordingly, set aside that part of the High Court order and  

direct the High Court to summon Vikram (PW.1) for his further examination  

by the appellants and if so desired by the CBI.  For the sake of convenience,  

the  High  Court  may  direct  a  member  of  the  Registry  of  the  rank  of  a  

Sessions Judge/Additional Sessions Judge to record the additional evidence  

of Vikram (PW.1).  The examination of the witness by the appellants and the  

CBI must not go beyond two working days each so that the recording of his  

evidence  should  be  complete  in  not  more  than  four  days.  The  Registrar  

recording the evidence would certify it and place before the Court and the  

Court shall then proceed to dispose of the appeals.

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34. The appeals are thus allowed.

35. Before parting with the record of the case we are constrained to say  

that  we are distressed beyond words to find that  the case relating to the  

attempt on the life of the CJI remains stuck up at the stage of the appeal even  

after about 37 years of the occurrence. We are informed that the other case  

of the killing of Shri L.N. Mishra is still mired before the trial court. We do  

not wish to make any comment on that case as that is the subject matter of  

Writ  Petition (Criminal)  Nos. 200 and 203 of 2011 that remains pending  

before this  Court.  But so far as the present case is  concerned, we would  

request the Chief Justice of the Delhi High Court with all the strength at our  

command  to  take  notice  of  the  inordinately  long  time  for  which  these  

appeals (Criminal Appeal Nos.436 & 443 of 1996) are pending before the  

High Court and to put a tab on them so as to ensure that the appeals are  

disposed of  without  any further  delay and in any case not  later  than six  

months from the date of the receipt/production of a copy of this order.  

……………………………..J. (Aftab Alam)

……………………………..J. New Delhi,            (Ranjana Prakash Desai) January 19, 2012.

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