Case Note & Summary
The petitioners, Smt. Theresa D'Souza and Smt. Thelma D'Souza, filed a criminal writ petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging an order dated 30/04/2018 passed by the Court of Sessions, North Goa, Panaji in Criminal Appeal No.135/2017. The impugned order allowed an application filed by the respondent, Mr. Norman W. Albuquerque, under Order XLI Rule 27 of the Code of Civil Procedure, 1908, for production of additional documents. The petitioners had initiated a criminal case against the respondent, and the respondent was appealing against their conviction or order. In the appeal, the respondent sought to introduce additional documents, namely the deposition of the petitioners in a divorce case where one petitioner allegedly admitted that the respondent was not a member of their family, and the cross-examination of the husband of petitioner no.2 who admitted that petitioner no.1 was not related to him by blood and there was no domestic relationship. The respondent claimed that these documents were realized after going through the impugned judgment and order. The learned Additional Sessions Judge allowed the application without recording any satisfaction that the documents could not be produced despite due diligence or that they were necessary for pronouncement of judgment. The High Court held that the appellate court must satisfy the conditions of Order XLI Rule 27 CPC before allowing additional evidence. Since the order failed to record such satisfaction, it was unsustainable. The High Court quashed and set aside the impugned order and allowed the petition.
Headnote
A) Criminal Procedure - Inherent Powers - Section 482 CrPC - Quashing of Order - Petition under Article 227 and Section 482 CrPC challenged order allowing additional evidence in appeal - Court held that the order was passed without satisfying conditions of Order XLI Rule 27 CPC - Held that the appellate court must record satisfaction that the documents could not be produced despite due diligence or that they are necessary for pronouncement of judgment (Paras 2-10). B) Evidence - Additional Evidence in Appeal - Order XLI Rule 27 CPC - Conditions - The respondent sought to produce deposition from divorce case and cross-examination of a witness - The appellate court allowed the application without recording any finding on due diligence or necessity - Held that the order was unsustainable and liable to be set aside (Paras 3-10).
Issue of Consideration
Whether the Additional Sessions Judge was justified in allowing the application under Order XLI Rule 27 CPC for production of additional documents without satisfying the conditions laid down therein.
Final Decision
The High Court allowed the petition, quashed and set aside the order dated 30/04/2018 passed by the Additional Sessions Judge, North Goa, Panaji in Criminal Appeal No.135/2017.
Law Points
- Order XLI Rule 27 CPC
- Section 482 CrPC
- Article 227 Constitution of India
- Additional evidence in appeal
- Due diligence requirement
- Domestic Violence Act
