Sharad Agnihotri vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
nd
ON THE 2 OF SEPTEMBER, 2026
MISC. CRIMINAL CASE No. 27902 of 2026
SHARAD AGNIHOTRI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manu Maheshwari - Advocate for the petitoiner through Video-
conferencing .
Shri Dinesh Prasad Patel - Government Advocate for the
respondent/State.
ORDER
This application under Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short, “BNSS”) has been preferred by the petitioner
seeking quashment of the order dated 23.05.2026 passed by the learned
Additional Sessions Judge, Bhopal in Criminal Appeal No.121/2023,
whereby the application preferred by the petitioner under Section 391 of the
Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) seeking permission
to adduce additional evidence has been rejected.
2. The prosecution case, in brief, is that a complaint dated
27.10.2009 was lodged by Ramnarayan Lal, claiming himself to be the
President of Amarnath Grih Nirman Sahakari Sanstha, alleging that the
petitioner, while functioning as President of the Society, fraudulently re-
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06

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allotted/resold Plot No.38, Khasra No.17/1/2, Gram Damkheda, Bhopal, in

favour of Sunita Kushwaha on 06.05.2009, although the said plot had earlier
been allotted to the complainant in the year 1997. On the basis of the
complaint, an FIR was registered at Police Station Kolar Road, Bhopal. After
investigation, charge-sheet was filed and the petitioner faced trial. The
learned Judicial Magistrate First Class, Bhopal, vide judgment dated
28.01.2023 passed in R.C.T. No.805963/2011, convicted the petitioner for
offences under Sections 420 and 421 of the IPC and sentenced him to
undergo simple imprisonment for one year under each section, besides
imposing fine of Rs.5,000/- under each section.
3. The petitioner thereafter preferred Criminal Appeal No.121/2023
before the learned Additional Sessions Judge, Bhopal. During pendency of
the appeal, the petitioner moved an application under Section 391 Cr.P.C.
seeking permission to adduce certain documents as additional evidence,
principally the notices issued by the Society, newspaper publications,
proceedings/minutes of the Society and other connected documents relating
to cancellation of the complainant's allotment. According to the petitioner,
the documents could not be formally exhibited on account of an inadvertent
omission on the part of the then defence counsel. The application under
Section 391 Cr.P.C. was rejected by the learned appellate Court vide order
dated 23.05.2026, principally on the ground that the accused had sufficient
opportunity during the long-drawn trial to produce the documents and get
them proved either through the prosecution witnesses or by leading his own
evidence, but such opportunity was not availed. The said order is assailed in
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06

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the present application.

4. Learned counsel appearing for the petitioner submits that the
learned appellate Court has adopted an unduly technical approach while
considering the application under Section 391 Cr.P.C. It is contended that the
documents sought to be brought on record are not fresh or fabricated
documents and were already part of the record of the trial Court. Learned
counsel submits that the trial Court itself noticed the relevant notices in
paragraph 34 of its judgment, but the same were not formally exhibited due
to an inadvertent omission of the defence counsel. It is argued that the very
documents sought to be adduced have a direct bearing upon the finding of
the trial Court that there was no material to establish that notices had been
issued to the complainant before cancellation of the allotment or that a
decision had been taken by the Society for such cancellation. It is therefore
submitted that refusal to permit formal proof of such documents would result
in serious prejudice to the petitioner and may lead to an erroneous
adjudication of the appeal. Learned counsel has also submitted that the
documents are official records and newspaper publications and their
authenticity was never seriously disputed by the complainant. It is further
argued that Section 391 Cr.P.C. is intended to advance the cause of justice
and not to punish an accused for an omission on the part of his counsel.
Reliance has been placed upon the settled principles governing exercise of
appellate power to receive additional evidence and it is submitted that the
impugned order deserves to be set aside.
5 . Per contra learned counsel for the State has opposed the
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
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application and supported the impugned order. It is submitted that the

petitioner had ample opportunity during the trial, which continued for several
years, to produce and prove the documents now sought to be relied upon.
According to the State, Section 391 Cr.P.C. cannot be invoked merely to fill
up a lacuna in the defence case after the accused has suffered conviction. It is
contended that the appellate Court has exercised its discretion after
considering the relevant circumstances and there is no perversity or
jurisdictional error warranting interference under the inherent jurisdiction of
this Court.
6. Heard learned counsel for the parties and perused the material
available on record. The question which falls for consideration is whether, in
the facts of the present case, the learned appellate Court was justified in
rejecting the application under Section 391 Cr.P.C. merely on the ground that
the petitioner had an earlier opportunity to produce the documents during
trial.
7. Section 391 Cr.P.C. confers a discretionary power upon the
appellate Court to take further evidence or direct it to be taken when such
evidence is found to be necessary for a just decision of the case. The power is
undoubtedly not intended to provide an accused with an opportunity to fill
up a lacuna deliberately left during the trial. At the same time, the provision
is a salutary enabling provision intended to prevent failure of justice. The
determinative consideration is not merely whether the evidence could have
been produced earlier, but whether its consideration at the appellate stage is
necessary for arriving at a just decision.
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06

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8. In the present case, the material placed before this Court indicates

that the documents sought to be exhibited relate directly to the defence of the
petitioner regarding cancellation of the complainant's allotment. The
petitioner has specifically relied upon notices dated 23.02.2008, 13.11.2009,
15.12.2009 and 26.12.2009, newspaper publications and the
proceedings/minutes of the Society. The petitioner has further asserted that
the trial Court itself noticed the relevant notices and documents in paragraph
34 of its judgment. This aspect assumes considerable significance because
the trial Court, while recording conviction, appears to have drawn an adverse
inference from the absence of material demonstrating that notices had been
issued to the complainant before cancellation and that a decision had been
taken by the Society for cancellation of the allotment.
9. The case, therefore, is not one where the petitioner seeks to
introduce an altogether new factual foundation or an entirely new defence at
the appellate stage. The proposed evidence pertains to the very transaction
which was the subject matter of the trial and, according to the petitioner, the
documents were already available in the trial Court record. The fact that the
documents were not formally exhibited cannot, by itself, be treated as
conclusive against the petitioner if their consideration is otherwise necessary
for a just determination of the appeal.
10. The appellate Court has principally rejected the application on
the ground that sufficient opportunity was available to the petitioner during
the trial. Such consideration is relevant, but is not by itself determinative of
an application under Section 391 Cr.P.C. The appellate Court is required to
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06

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examine whether the additional evidence is necessary for a proper and

effective adjudication of the appeal. If the evidence has a direct bearing on a
material finding recorded by the trial Court and its exclusion may result in an
incomplete adjudication, the mere fact that the accused or his counsel failed
to formally prove the material at the trial stage ought not to stand in the way
of the Court exercising its statutory power in the interest of justice.
11. It is also material that the documents are stated to have been
prepared contemporaneously with the events in question and relate to the
affairs of the Society. The petitioner is not seeking to introduce evidence
concerning a wholly subsequent event so as to alter the nature of the
prosecution case. The proposed evidence is intended to explain and
substantiate the circumstances in which the allotment of the plot was
cancelled. Whether these documents are genuine, whether they were duly
issued, whether they were proved in accordance with law and what
evidentiary value is to be attached to them are matters which can
appropriately be considered by the appellate Court after affording due
opportunity to the prosecution to contest the same.
12. The apprehension that the application may amount to filling up a
lacuna can also be adequately addressed by directing the appellate Court to
permit the additional evidence only to the extent necessary for a just
adjudication and by granting the prosecution full opportunity of cross-
examination, rebuttal and objection. The power under Section 391 Cr.P.C. is
to be exercised cautiously, but it is equally well settled that procedural rules
should not be applied in a manner which prevents the Court from
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
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considering material evidence having a direct bearing on the guilt or

innocence of an accused.
13. In the considered opinion of this Court, the present case falls
within the category where consideration of the documents may assist the
appellate Court in arriving at the correct conclusion. The issue is not whether
the petitioner was negligent during the trial; rather, the issue is whether,
despite such omission, the appellate Court should shut out material which
may have a direct bearing upon the correctness of the conviction. In a
criminal proceeding, the paramount consideration is that the appellate Court
should have before it all material necessary to arrive at a just decision.
14. It is also relevant that the petitioner has not sought a retrial in its
entirety. The prayer is confined to permitting formal proof and exhibition of
documents which, according to the petitioner, were already available on the
record. The rights of the prosecution can be adequately safeguarded by
permitting it to raise all objections regarding admissibility, relevancy,
genuineness and mode of proof and by granting an opportunity to rebut the
additional evidence.
15. Consequently, this Court is of the view that the learned appellate
Court adopted a restrictive approach in rejecting the application under
Section 391 Cr.P.C. solely on the ground that the petitioner had an
opportunity to produce the documents during trial. The impugned order
dated 23.05.2026, therefore, cannot be sustained.
16. Accordingly, the application is allowed. The order dated
23.05.2026 passed by the learned Additional Sessions Judge, Bhopal, in
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06

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Criminal Appeal No.121/2023 is hereby set aside. The application preferred

by the petitioner under Section 391 Cr.P.C. is allowed. The learned appellate
Court shall permit the petitioner to produce and prove the documents
mentioned in the said application, subject to the provisions of law. The
prosecution shall be afforded full and effective opportunity to raise
objections as to their admissibility, genuineness and mode of proof and, if
necessary, to cross-examine the witness/witnesses through whom such
documents are sought to be proved and to lead evidence in rebuttal in
accordance with law.
17. It is made clear that this Court has not expressed any opinion on
the genuineness, admissibility or evidentiary value of the documents sought
to be produced, nor on the merits of Criminal Appeal No.121/2023. The
learned appellate Court shall consider the additional evidence and the appeal
independently and strictly in accordance with law.
(HIMANSHU JOSHI)
JUDGE
Prachi
Signature Not Verified
Signed by: REENA
HIMANSHU SHARMA
Signing time: 07-09-2026
17:58:06