Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2191/2022
[Special Leave to Appeal (Crl.) No(s). 6533/2022]
LAKHAN SINGH Appellant
VERSUS
AMARJEET SINGH & ANR. Respondents
O R D E R
Dinesh Maheshwari, J.
Leave granted.
2. By way of this appeal, complainant of the criminal case
arising from FIR No. 211 of 2011 has questioned the order
dated 29.03.2022 passed by the High Court of Delhi at New
Delhi in Crl.M.A. No. 1828 of 2020 in Criminal Appeal No. 453
of 2019, whereby the High Court allowed an application moved
by the accused-applicant (appellant before the High Court-
respondent No.1 herein) with reference to Sections 311 and 391
1
of the Code of Criminal Procedure, 1973 and directed the
Trial Court to take on record the additional evidence and
documents, as mentioned in the subject application; and to
send the file back along with additional evidence.
3. The relevant background aspects of the matter are that
Signature Not Verified
Digitally signed by
Ashwani Kumar
Date: 2022.12.17
13:15:31 IST
Reason:
the said appeal bearing No.453 of 2019 has been filed by the
1 ‘CrPC’, for short.
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applicant-respondent No.1 against the judgment of conviction
dated 15.12.2018 and order on sentence dated 19.12.2018, as
passed by the Additional Sessions Judge, Tis Hazari Courts,
West Delhi in relation to FIR No. 211 of 2011, whereby he was
convicted of the offence punishable under Section 302 of the
2
Indian Penal Code, 1860 and was sentenced to imprisonment for
life with fine of Rs.1 lakh.
4. Looking to the nature of order passed by the High Court
and the order proposed to be passed by us herein, narration of
all the factual aspects is not necessary. Suffice it to notice
for the present purpose that while challenging the judgment
and order leading to his conviction and sentence, the
applicant-respondent No. 1 submitted before the High Court
that on the date of incident, he was of unsound mind and
hence, could not have been tried and convicted in this matter;
and such a relevant fact had not been considered by the Trial
Court. In support of this plea, the applicant sought to rely
upon, amongst others, the OPD Reports dated 12.07.2011 and
19.07.2011 along with the Medical Store Bill dated 12.07.2011;
and to examine the doctor who had attended on him and
prescribed the medicines as also the chemist who had supplied
such medicines. The applicant also made the submission that
he wanted to examine the Director, IHBAS, Dilshad Garden,
Delhi or any doctor from IHBAS to ascertain his medical
2 ‘IPC’, for short.
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condition on the day of incident, as also his father, who was
having the original record of the said OPD Reports and Bill of
medicines.
5. After taking note of the contents of application and
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the provisions of Section 391 CrPC , the High Court noticed
that on behalf of the State, there was no objection to the
recording of evidence in respect of the plea of unsoundness of
mind, which the applicant intended to raise and which was not
considered in the trial; and also observed that the
contentions sought to be urged were going to the root of the
matter. On these considerations and with reference to the
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General Exception provided in Section 84 IPC , the High Court
deemed it appropriate to allow the applicant to lead
additional evidence before the Trial Court. Though the High
Court expressed that the appeal was remanded back but, issued
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Section 391 CrPC reads as under: -
“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.”
4 Section 84 IPC reads as under: -
“84.Act of a person of unsound mind.- Nothing is an
offence which is done by a person who, at the time of doing
it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is
either wrong or contrary to law.”
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directions that the Trial Court shall get the evidence
recorded after giving shortest possible dates and thereafter,
the file shall be returned along with additional evidence.
6. The relevant observations and directions of the High
Court read as under: -
“9.Keeping in view the facts and circumstances of
the case before us and also the fact that the
state has accorded no objection to the recording
of the evidence in respect of the plea of
insanity, which the appellant now intends to
raise, as the same were not considered during the
course of the trial, and also the circumstance
that the contention raised at this stage by the
appellant does go to the root of the matter; the
appellant wants to place on record documents
pertaining to his mental condition as well as
wanting to examine the witnesses in support of
his contention; and the same in our considered
opinion does not amount to filling up the lacuna
in the present case. The plea of insanity is
covered under general exceptions under Section 84
of the Indian Penal Code and the same would
definitely have a bearing on this case. Even
otherwise it is pertinent to observe that the
Applicant/Appellant had in fact raised the issue
of his being of unsound mind at the stage of
trial before the learned Additional Sessions
Judge which was dismissed and declined vide order
dated 20.02.2014. Thus, in this view of the
matter, and in the interest of justice, we
consider it appropriate to allow
applicant/appellant to lead additional evidence
before the learned Trial Court.
10. Appeal is remanded back with the directions
to learned Trial Court to take on record the
additional evidence and documents as mentioned in
the subject application, under Section 311 of
Code of Criminal Procedure, 1973 dated
23.01.2020. Let the file be placed before the
learned District Judge – Tis Hazari Courts to
mark the case to the concerned Trial Court and
the concerned Trial Court shall fix a shortest
possible date for recording of the evidence. The
Trial Court shall not give more than one
opportunity to the applicant/appellant to lead
the additional evidence as prayed for and shall
not give any unnecessary adjournments.
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Thereafter, the file shall be sent back to this
Court along with additional evidence recorded.”
7. Seeking to challenge the order aforesaid, learned
counsel for the complainant-appellant has argued that the
order dated 20.02.2014, as referred to by the High Court in
the order impugned, was indeed considered and affirmed by this
Court in the order dated 12.10.2015 in Criminal Appeal Nos.
1345-1346/2015; and the impugned order, as passed by the High
Court, does not stand in conformity with the order so passed
by this Court.
7.1. Learned counsel has further submitted that during the
course of trial, two-fold submissions were made in the
application dated 17.11.2011 moved on behalf of the accused-
applicant: one about his mental illness at the time of
incident and another about his unsoundness of mind during the
trial; and sought relief in terms of Section 330 CrPC. Learned
counsel would submit that in the order dated 20.02.2014, the
application so made was duly considered by the Trial Court and
then, the same was dismissed with reference to the deposition
of witnesses examined for the purpose. Learned counsel has
pointed out that in the order dated 20.02.2014, the Trial
Court, inter alia , found and held as under:-
“18. I am of the view that in view of medical board
report dated 06.02.2013, the deposition of CW-1 & CW-
2 and in view of further report dated 01.01.2014 of
IHBAS, the accused is fit to face trial. The accused
is not incapable of making his defence. The
application under Section 330 CrPC filed by Sunehera
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Singh father of the accused is without any merits and
same is hereby dismissed. With this application is
disposed off.”
7.2. Learned counsel has further submitted that the said
order came to be specifically affirmed by this Court in the
order dated 12.10.2015, that reads as under: -
“Leave granted.
The instant appeal has been filed by the father-
in-law of the deceased, assailing the orders passed
by the High Court, suspending the trial of the
respondent-Amarjeet Singh. The question which came
to be considered by the High Court, related to the
mental fitness of the respondents to face trial.
Insofar as the instant aspect of the matter is
concerned, the High Court relied on the first medical
evaluation conducted by a Medical Board on
06.02.2013. It also relied on the statement of two
Court witnesses examined by the Trial Court, namely,
CW-1 on 20.07.2013 and CW-2 on 11.10.2013.
In addition to the above, the High Court also
took into consideration a second report of the
Medical Board dated 01.01.2014. In both the
aforementioned Medical Reports, and also, the
statement made before the trial court by the two
court witnesses, respondents had been considered to
be fit to face the trial.
In the above view of the matter and keeping in
mind the opinion/statements of experts on the
subject, we are satisfied that the direction issued
by the High Court on 04.09.2014, to suspend the
trial, was not justified. The impugned order passed
by the High Court is accordingly set aside. The
order passed by the trial court dated 20.02.2014,
affirming the fitness of the respondents to face
trial, is confirmed.
In the above circumstances, the appeals stand
allowed.”
7.3. Learned counsel would submit that both the issues as
regards mental capacity of the applicant-respondent No.1 at
the time of incident as also during the course of trial stand
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concluded by the aforesaid orders; and the High Court has not
been justified in granting opportunity for further evidence on
the very same aspects.
8. Per contra , learned counsel for respondent No.1 has
submitted that in the order dated 20.02.2014 passed by the
Trial Court as also the order dated 12.10.2015 passed by this
Court, only the aspect as regards the mental capacity of the
applicant–respondent No.1 to face the trial came to be
considered and pronounced upon but, his mental capacity at the
time of incident and his capacity to know the nature of his
acts definitely remains a question for consideration and
hence, the High Court has not committed any error in allowing
evidence to be adduced in that regard before the Trial Court.
8.1. Learned counsel would further submit that the High
Court having taken a particular view which remains just and
proper and serves the cause of justice, no interference is
called for.
9. Learned ASG appearing for the State has duly assisted
us with reference to the provisions of Sections 311, 391 and
330 CrPC.
10. Having given thoughtful consideration to the
submissions made and having examined the record, we are
clearly of the view that the order impugned cannot be
sustained for more than one reason.
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11. Insofar as the question of unsoundness of mind of the
respondent No. 1 is concerned, it is noticed that in the
application moved before the Trial Court in reference to
Section 330 CrPC, it was precisely the contention on his
behalf that he was suffering from mental illness during the
period of incident. It was also submitted that being of
unsound mind, he was incapable of making his defence. It is
also noticed that in the earlier round of proceedings, the
High Court set aside the order dated 23.02.2012 passed by the
Trial Court and issued directions for examination of
respondent No.1 from the specialist/medical board. Thereupon,
the file was sent to the concerned Magistrate to get the
applicant examined by the medical board. After receiving
report from the medical board that respondent No. 1 was fit to
stand trial, the Trial Court posted the matter for examination
of witnesses and in fact, examined two Doctors as CW-1 and CW-
2 respectively. After taking note of the entire evidence on
record, the Court found that the respondent No. 1 was fit to
face the trial and was not incapable of making his defence.
Thus, the application was rejected. This Court approved the
order so passed by the Trial Court, particularly in view of
the opinion/statement of the experts and found no
justification in the High Court interfering with the matter.
12. In the given set of facts and circumstances, when the
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evidence was indeed taken for the purpose of dealing with the
plea put forward on behalf of the applicant-respondent No.1;
and a specific view was taken by the Trial Court, which was
affirmed by this Court with reference to the evidence
available on record, we find it difficult to approve the
approach of the High Court in permitting further evidence of
the same nature to be adduced and for that purpose, sending
the matter to the Trial Court.
13. The procedure as adopted in the present matter is
difficult to be approved, more particularly when specific
evidence as regards mental condition of the applicant–
respondent No.1 is already on record and then, it is also seen
that the aspect of his mental incapacity was sought to be put
forward by respondent No.1 himself by entering into witness-
box and getting himself examined as DW-2. The facts and
conclusions in the orders passed by the Trial Court and by
this Court are available before the High Court. The High Court
dealing with the appeal ought to have examined the material on
record before taking a decision as to whether any further
evidence was required in the matter or not. Secondly, if at
all any further evidence was considered requisite, in the
totality of circumstances of the present case and nature of
plea sought to be raised, such evidence could have been taken
by the High Court itself or by directing the registry to do
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the same, of course, after recording specific reasons
therefor.
13.1. Put in a nutshell, it is apparent that while passing
the order dated 29.03.2022, neither the order passed by this
Court on 12.10.2015 has been taken note of by the High Court
nor even the evidence already available on record has been
examined by the High Court.
14. The proposition of taking additional evidence in a
criminal appeal cannot be adopted as a matter of course by the
Appellate Court and in fact, the occasion for the Appellate
Court to take a considered decision on the prayer for adducing
additional evidence in appeal could arrive only after the
appeal itself has been heard on merits and not before. Taking
up an application moved in the appeal for permission to lead
additional evidence and deciding the same without hearing the
parties on merits of the appeal and without examining record
of the case and the reasoning that has prevailed in the Trial
Court, in our view, cannot be countenanced.
15. In the aforesaid view of the matter, the impugned order
dated 29.03.2022 deserves to be and is hereby set aside and
the appeal i.e., Criminal Appeal No.453 of 2019, stands
restored for reconsideration of the High Court in accordance
with law.
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16. Having regard to the circumstances of the case, though
we are not approving the order dated 29.03.2022 but, while
restoring the appeal for consideration on merits, we would
also restore the said application, Cr.M.A. 1828 of 2020, as
moved by the applicant-respondent No.1, which may be
considered at an appropriate stage by the High Court in
accordance with law; and appropriate orders may be passed, as
deemed fit and necessary in the facts and circumstances of the
case.
17. The parties through their respective counsel shall
stand at notice to appear before the High Court in Criminal
Appeal No.453 of 2019 on 10.01.2023.
18. In the totality of the circumstances of the case, the
interim arrangement made by the High Court in its order dated
15.09.2022 during the pendency of the appeal shall continue
until the first date of appearance of the parties before the
High Court i.e., 10.01.2023.
19. It goes without saying that we have not made any
comments on merits of the case either way; and all the aspects
relating to the merits remain open to be argued by the parties
before the High Court.
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20. With the observations, relaxations and requirements
foregoing, the appeal stands allowed.
……………………………………………J.
[DINESH MAHESHWARI]
……………………………………………J.
[SUDHANSHU DHULIA]
New Delhi;
December 6, 2022.
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ITEM NO.30 COURT NO.7 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 6533/2022
(Arising out of impugned final judgment and order dated 29-03-2022
in CRLMA No. 1828/2020 in Crl.A. No. 453/2019 passed by the High
Court Of Delhi At New Delhi)
LAKHAN SINGH Petitioner(s)
VERSUS
AMARJEET SINGH & ANR. Respondent(s)
( IA No. 90524/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT and IA No. 96392/2022 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Date : 06-12-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE SUDHANSHU DHULIA
For Petitioner(s) Mr. Tanmay Mehta, Adv.
Mr. Lakshya Gupta, Adv.
Mr. V. K. Sidharthan, AOR
For Respondent(s) Mr. Roshan Santhalia, AOR
MS. Suruchi Jaiswal, Adv.
Mr. Vikramjeet Banerjee, ASG
Mr. P.V. Yogeswaran, AOR
Ms. Vishakha, Adv.
Mr. Raghav Sharma, Adv.
Mr. Akshit Pradhan, Adv.
Ms. Shruti Agarwal, Adv.
Ms. Janhvi Prakash, Adv.
Mr. Kartik Dey, Adv.
Mr. Gurmeet Singh Makker, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands allowed in terms of the signed reportable
order.
Pending applications also stand disposed of.
(MEENAKSHI KOHLI) (VIDYA NEGI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
[Signed reportable order is placed on the file]
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