Shahnaz YunusversusThe State of Bihar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                           CRIMINAL REVISION No.890 of 2025
            Arising Out of PS. Case No.-126 Year-1999 Thana- KOTWALI District- Patna
     ======================================================
     Shahnaz Yunus W/o Late Yasub Yunus @ Md. Yasub Yunus, Resident of
     Yunus Campus, S.P. Verma Road, PS- Kotwali, Distt.- Patna.
                                                                ... ... Petitioner
                                     Versus
1.    The State of Bihar.
2.   Yasmin Bano W/o Late Mr. Md. Yusuf Yunus R/o Yunus Campus, S.P.
     Verma Road, P.S.- Kotwali, Distt.- Patna.
3.   Md. Waqar Yunus S/o Late Mr. Md. Yusuf Yunus R/o Yunus Campus, S.P.
     Verma Road, P.S.- Kotwali, Distt.- Patna.
4.    Md. Anzar @ Md. Anzar Imam S/o Late Zafar Imam R/o road no. 8, near
      stepping stone school, Mohalla - Alinagar, P.S.- Phulwarisharif, Distt.-
      Patna, Presently residing at Yunus Campus, S.P. verma Road, P.S.- Kotwali,
      Distt.- Patna.
                                                              ... ... Respondents
     ======================================================
     Appearance :
     For the Petitioner        :       Mr. S.M. Asharaf, Sr. Advocate
                                       Mr. Abu Bakar, Advocate
     For the State             :       Mr. Binod Kumar, APP
     For the O.P. No. 4        :       Mr. Ajay Kumar Sinha, Advocate
                                       Mr. Vishwajeet Kumar, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                           ORAL JUDGMENT
      Date : 16-02-2026

                          Heard learned counsel for the parties.

                          2. The instant revision petition has been filed

      against the order dated 17.07.2025 passed by the learned

      Additional Sessions Judge-VIII, Patna, in Criminal Appeal No.

      164 of 2021 (CIS No. 164 of 2021), arising out of judgment and

      order dated 05.03.2021 in Trial No. 806 of 2021 passed by the

      learned Additional Chief Judicial Magistrate-XIII, Patna, in

      connection with Kotwali P.S. Case No. 126 of 1999, whereby

      and whereunder the learned Appellate Court rejected the
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         application dated 18.06.2025 filed under Section 391 of the

         Code of Criminal Procedure (for brevity, “Cr.P.C.”).

                         3. Brief facts of the case are that the petitioner is

         informant / victim of Kotwali P.S. Case No. 126 of 1999, which

         has been registered with allegation against opposite party nos. 2

         to 4, as the accused persons attacked the informant and her son

         and the assailants also snatched gold chain of the informant

         weighing two bhars. Chargesheet was submitted on 31.05.1999.

         However, cognizance was taken under Section 504 of the Indian

         Penal Code, though FIR was lodged under Sections 452, 324,

         323, 504 and 379 of the Indian Penal Code. On 30.03.2001,

         charges were framed under Section 504 of the Indian Penal

         Code and summons to private witnesses were issued. Four

         private witnesses turned hostile. It also appears that trial

         remained pending from 25.08.2005 till 07.01.2015 stated to be

         due to continuous non-appearance of one of the co-accused

         person, namely Yusuf Yunus. The death report of the accused

         was submitted on 07.01.2015 and thereafter, the matter was

         again posted for prosecution evidence. The learned trial Court

         closed the prosecution evidence on 19.03.2015 and on the same

         day, the prosecution filed an application under Section 311 of

         the Cr.P.C. for summoning and examining three key witnesses.
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         The application was allowed on 30.04.2015 and the witnesses

         named in the application were examined between 16.05.2015

         and 10.09.2015. Learned trial Court thereafter issued order for

         summoning of official witnesses on 28.09.2015, but the actual

         summons were issued much later, on 05.01.2016. No service

         report was received regarding summons. It appears that the

         learned trial Court, thereafter, closed the prosecution evidence

         on 06.04.2016. The petitioner highlighted the approach of the

         learned trial Court by filing another application dated

         27.04.2016 under Section 311 of the Cr.P.C., pointing out that

         the summons to Medical Officer (for brevity, “MO”) failed

         because they were sent to his old address at P.M.C.H., Patna

         while he has been transferred to A.N.M.M.C.H., Gaya.

         However, the learned trial Court rejected the application on

         18.05.2016. Against the said order, the petitioner preferred a

         Criminal Revision No. 348 of 2016, but the same was also

         dismissed on 17.12.2016. On 20.02.2017, the petitioner filed

         application under Section 2016 of the Cr.P.C., seeking alteration

         of the charge to include the graver offences disclosed in the FIR.

         The rejoinder was filed on 19.04.2017 and the learned trial

         Court again rejected the application holding that there was no

         material on record warranting alteration of charges. Aggrieved
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         by this order, the petitioner preferred Criminal Revision No. 438

         of 2017 before the learned Sessions Court, but the said revision

         was subsequently dismissed as withdrawn on 19.07.2017. Again

         the petitioner filed a petition under Section 259 of the Cr.P.C. on

         11.10.2017, which was kept pending for disposal for more than

         two years and was finally rejected on 24.06.2020. Lastly, on

         05.03.2021, the learned Additional Chief Judicial Magistrate-

         XIII, Patna, passed a judgment acquitting the accused persons.

         The judgment of 05.03.2021 was assailed by the informant /

         petitioner before the learned Sessions Court, Patna by filing

         Criminal Appeal No. 164 of 2021. The petitioner filed an

         application before the learned Appellate Court under Sections

         391 of the Cr.P.C. on 18.06.2025. However, the Appellate Court

         by its order dated 17.07.2025, rejected the said application. This

         dismissal order is under challenge before this Court.

                         4. Learned senior counsel appearing on behalf of

         the petitioner submits that the order of the learned Appellate

         Court rejecting the application of the petitioner filed under

         Section 391 of the Cr.P.C. read with Section 132 of B.N.S.S. is

         illegal, perverse and contrary to settled legal principles. The

         learned Appellate Court failed to appreciate that the non-

         examination of Investigating Officer (for brevity, “IO”) and MO
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         was due to the failure of the learned trial Court to ensure proper

         service and is not attributable to the prosecution. The learned

         Appellate Court, further failed to appreciate that non-

         examination of IO and MO, was due to procedural drawback as

         the learned trial Court failed to take any coercive steps under

         Sections 62-67 or Section 70 of Cr.P.C. after summons remained

         unserved. The petitioner, from time to time, filed appropriate

         applications for examination of witnesses and also for alteration

         of charge, though the said applications were not entertained by

         the learned trail Court, except one. The learned trial Court failed

         to act even after prosecution filed an application under Section

         311 of the Cr.P.C., pointing out the correct address of the MO

         and requesting for issuance of fresh summons. But again, this

         application was arbitrarily rejected on 18.05.2016 despite

         correct address provided by the petitioner.

                         5. Learned senior counsel further submits that the

         petitioner has all along been showing due diligence in the matter

         and has taken all steps to put forth his case before the learned

         trial Court. Learned senior counsel further submits that Patna

         High Court in the case of Md. Naseem Raja Rehmani v. State

         of Bihar, reported in 2017 (2) PLJR 382, held that additional

         evidence at appellate stage is permissible, in case of failure of
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         justice. However, such power must be exercised sparingly and

         only in exceptional suitable cases where the Court is satisfied

         that directing additional evidence would serve the interest of

         justice. Such an application for taking additional evidence must

         be decided objectively, just to cure the irregularity. The primary

         objective of Section 391 of the Cr.P.C. is the prevention of

         guilty man’s escape from careless or ignorant action from part

         of the prosecution. Learned Appellate Court further failed to

         appreciate that adducing additional evidence of important

         witnesses will further open the scope of its wide powers under

         Section 386 of the Cr.P.C. read with Section 216, to alter or

         modify charges. The Hon’ble Supreme Court in the case of

         Chandra Pratap Singh v. State of M.P., reported in (2023) 10

         SCC 181, has categorically held that in view of the wide powers

         conferred under Section 386 of the Cr.P.C., even an Appellate

         Court is empowered to invoke Section 216 for altering or

         modifying the charge. Learned senior counsel further submits

         that despite filing timely applications under Section 311 of the

         Cr.P.C. and later on under Section 391 of the Cr.P.C., the

         petitioner was denied justice due to mechanical and non-judicial

         approach of the learned trial Court and the Appellate Court. The

         Court did not consider for a moment that the delay in securing
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         the IO and MO was caused entirely due to trial Court’s failure to

         invoke appropriate provisions of Cr.P.C. to compel their

         attendance.

                         6. Learned senior counsel further refers to the case

         of Ajitsinh Chehuji Rathod v. State of Gujarat & Ors.,

         Criminal Appeal No. 478 of 2024 (Arising out of SLP (Crl.) No.

         16641 of 2023), reported in (2024) 4 SCC 453, and submits that

         law is well settled that power to record additional evidence

         under Section 391 of the Cr.P.C. should only be exercised when

         the party making such request was prevented from presenting

         evidence in the trial despite due diligence being exercised or

         that the facts giving rise to such prayer came to light at a later

         stage during pendency of the appeal and that non-recording of

         such evidence may lead to failure of justice. Learned senior

         counsel thus submits that at every possible occasion, appellant /

         petitioner tried to bring the evidence on record before the

         learned trial Court though she was unsuccessful in her

         endeavour so, it could not be said that there was no due

         diligence.

                         7. Learned senior counsel lastly submits that if the

         evidence is not allowed at this (appellate) stage, the same might

         result in failure of justice. Therefore, the present revision
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         petition needs to be allowed.

                         8. Learned counsel appearing on behalf of opposite

         party nos. 2 to 4 vehemently contends that there is no infirmity

         in the impugned order and the same is appropriate and correct.

         He submits that the petitioner got ample opportunity of

         adducing evidence before the learned trial Court, but failed to

         adduce the evidence. The learned trial Court, after giving ample

         opportunity to the petitioner, closed the evidence. On

         19.03.2015, the petitioner filed an application under Section 311

         of the Cr.P.C., which was allowed. But, even then the petitioner

         failed to adduce evidence and subsequently, due to inability of

         the prosecution to produce the evidence, the evidence was again

         closed on 27.04.2016. The petitioner again filed a petition under

         Section 311 of the Cr.P.C., which was rejected. Against the

         rejection of her petition, the petitioner approached the learned

         Sessions Court by filing a revision petition, which was

         dismissed vide order dated 17.12.2016 by the learned Sessions

         Judge, Patna. Learned counsel further submits that the petitioner

         had employed all tricks in her bag to delay the matter and linger

         on the proceeding. The present revision petition challenging the

         order passed by the learned Appellate Court under Section 391

         of the Cr.P.C. is similar ploy by the petitioner. Learned counsel
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         thus submits that there is no merit in the instant revision petition

         ad the same be dismissed.

                         9. I have given my thoughtful consideration to the

         rival submissions advanced by the parties and perused the

         record. Section 391 of the Cr.P.C. reads as under:

                                “(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.”

                         Thus, this provision empowers the Appellate Court

         to allow additional evidence at the appellate stage by itself or

         direct it to be taken by a Magistrate and when the Appellate

         Court is a High Court, by a Court of Session or a Magistrate,

         provided the Appellate Court thinks additional evidence to be

         necessary.

                         10. In the case of Zahira Habibullah Sheikh &
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         Anr. v. State of Gujarat & Ors., reported in (2004) 4 SCC 158,

         the Hon’ble Supreme Court dealt with the scope of Section 391

         of the Cr.P.C. in extenso and held as follows:

                                 “21. Section 391 of the Code is intended to
                         subserve the ends of justice by arriving at the truth
                         and there is no question of filling of any lacuna in the
                         case on hand. The provision though a discretionary
                         one is hedged with the condition about the
                         requirement to record reasons. All these aspects have
                         been lost sight of and the judgment, therefore, is
                         indefensible. It was submitted that this is a fit case
                         where the prayer for retrial as a sequel to acceptance
                         of additional evidence should be directed. Though,
                         retrial is not the only result flowing from acceptance
                         of additional evidence, in view of the peculiar
                         circumstances of the case, the proper course would be
                         to direct acceptance of additional evidence and in the
                         fitness of things also order for a retrial on the basis of
                         the additional evidence.

                                 47. Section 391 of the Code is another salutary
                         provision which clothes the courts with the power to
                         effectively decide an appeal. Though Section 386
                         envisages the normal and ordinary manner and
                         method of disposal of an appeal, yet it does not and
                         cannot be said to exhaustively enumerate the modes
                         by which alone the court can deal with an appeal.
                         Section 391 is one such exception to the ordinary rule
                         and if the appellate court considers additional
                         evidence to be necessary, the provisions in Section
                         386 and Section 391 have to be harmoniously
                         considered to enable the appeal to be considered and
                         disposed of also in the light of the additional evidence
                         as well. For this purpose it is open to the appellate
                         court to call for further evidence before the appeal is
                         disposed of. The appellate court can direct the taking
                         up of further evidence in support of the prosecution; a
                         fortiori it is open to the court to direct that the
                         accused persons may also be given a chance of
                         adducing further evidence. Section 391 is in the
                         nature of an exception to the general rule and the
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                         powers under it must also be exercised with great
                         care, especially on behalf of the prosecution lest the
                         admission of additional evidence for the prosecution
                         operates in a manner prejudicial to the defence of the
                         accused. The primary object of Section 391 is the
                         prevention of a guilty man's escape through some
                         careless or ignorant proceedings before a court or
                         vindication of an innocent person wrongfully accused.
                         Where the court through some carelessness or
                         ignorance has omitted to record the circumstances
                         essential to elucidation of truth, the exercise of powers
                         under Section 391 is desirable.

                                  49. There is no restriction in the wording of
                         Section 391 either as to the nature of the evidence or
                         that it is to be taken for the prosecution only or that
                         the provisions of the section are only to be invoked
                         when formal proof for the prosecution is necessary. If
                         the appellate court thinks that it is necessary in the
                         interest of justice to take additional evidence, it shall
                         do so. There is nothing in the provision limiting it to
                         cases where there has been merely some formal
                         defect. The matter is one of discretion of the appellate
                         court. As reiterated supra, the ends of justice are not
                         satisfied only when the accused in a criminal case is
                         acquitted. The community acting through the State
                         and the Public Prosecutor is also entitled to justice.
                         The cause of the community deserves equal treatment
                         at the hands of the court in the discharge of its
                         judicial functions.

                                 50. In Rambhau v. State of Maharashtra
                         [(2001) 4 SCC 759 : 2001 SCC (Cri) 812] it was held
                         that the object of Section 391 is not to fill in lacuna,
                         but to subserve the ends of justice. The court has to
                         keep these salutary principles in view. Though wide
                         discretion is conferred on the court, the same has to
                         be exercised judicially and the legislature had put the
                         safety valve by requiring recording of reasons.”

                         11. The Hon’ble Supreme Court in the case of

         Ajitsinh Chehuji Rathod (supra) in paragraph no. 8 held as
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         under:

                                 “8. At the outset, we may note that the law is
                         well-settled by a catena of judgments rendered by this
                         Court that power to record additional evidence under
                         Section 391CrPC should only be exercised when the
                         party making such request was prevented from
                         presenting the evidence in the trial despite due
                         diligence being exercised or that the facts giving rise
                         to such prayer came to light at a later stage during
                         pendency of the appeal and that non-recording of
                         such evidence may lead to failure of justice.”

                         Thus, the Hon’ble Supreme Court interpreted

         Section 391 of the Cr.P.C. in the manner that this exercise of

         allowing additional evidence at appellate stage is permissible

         when the party making such request was prevented from

         presenting the evidence in the trial despite due diligence being

         exercised. Taking on additional evidence is also permissible if

         the facts giving rise to such prayer came to light at a later stage

         during the pendency of appeal with further condition that non-

         recording of such evidence may lead to failure of justice.

                         12. Now, considering the aforementioned decisions

         of the Hon’ble Supreme Court, vis-à-vis the statutory provision,

         it is very much apparent that Section 391 is an exception to

         general rule and for this reason, it should be exercised sparingly.

         This provision appears to be pari materia with Order 41 Rule 27

         of the Code of Civil Procedure, and due diligence is expected

         from parties making the request for additional evidence. In the
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         instant case, the learned senior counsel has addressed the point

         that the petitioner has been diligent all along and has filed

         application under Section 311 of the Cr.P.C. and even went to

         the revisional Court against rejection of her application filed

         under Section 311 of the Cr.P.C. But I am afraid this submission

         is simply misconceived. The petitioner exercised her right and

         made an attempt to get the additional evidence before the

         learned trial Court. But her prayer was rejected and the rejection

         became final. Filing of an application under Section 391 of the

         Cr.P.C. by the petitioner is only trying to achieve something

         indirectly which the petitioner failed to achieve before the

         learned trial Court directly. It appears to be a colourable

         exercise. For this reason, I find merit in the submissions made

         by the learned counsel for the opposite party nos. 2 to 4 that the

         filing of an application under Section 391 of the Cr.P.C. was

         only a ploy to drag the proceedings. Considering the facts that

         the prosecution started way back in the year 1999 after

         institution of FIR in Kotwali P.S. Case No. 126 of 1999. No

         doubt, additional evidence can be allowed at the appellate stage,

         but it has to be in rare and exceptional cases only and not in a

         case where the petitioner had already taken recourse of law in

         appropriate proceeding and lost.
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                                      13. The other condition for allowing additional

                      evidence is not present in this case, i.e. new facts coming to

                      light giving rise to such prayer at a later stage. The learned

                      Appellate Court has considered the conduct of the petitioner and

                      rightly came to the finding that the appellant / petitioner has

                      filed the application only to keep the litigation pending.

                                      14. Hence, in the light of discussion made

                      hereinbefore, I neither find any rare or exceptional case in

                      favour of the petitioner to allow additional evidence nor find

                      any infirmity in the impugned order, so as to interfere with the

                      impugned order.

                                      15. Therefore, I have no hesitation in holding that

                      the present petition is devoid of merit and hence, the same is

                      dismissed.



                                                                      (Arun Kumar Jha, J)

Shahnawaz/-
AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          20.02.2026
Transmission Date       20.02.2026