B. R. ARORA, J. - (1.) THIS miscellaneous petition is directed against the judgment dated July l,1991, passed by Sessions Judge Bikaner, by which the learned Sessions Judge directed the learned Munsif and Judicial Magistrate, Loonkaransar, to recall PW 9 Gyan Prakash, record his statement and tender the report of the State Forensic Science Laboratory in evidence.
(2.) PETITIONER Bhagwan Das was tried by the learned Munsif and Judicial Magistrate, Loonkaransar, for the offences under Sections 420, 460 and 473 I. P. C. The learned Magistrate, after trial, convicted and sentenced the accused for the offences under Sections 420, 460 and 473 I. P. C. "dissatisfied with the judgment dated March 27, 1987, passed by the learned Magistrate, convicting and sentencing the accused, the accused preferred an appeal before the learned Sessions Judge, Bikaner. In the course of arguments in appeal, it was noted by the learned Sessions Judge that though the reports dated 21-9-1983 and 12-10-83 of the State Forensic Science Laboratory were produced by the prosecution before the learned Magistrate, but they were not exhibited. In the course of arguments, it was agitated that as the reports have not been exhibited therefore, they cannot be read in evidence. It was further argued that the investigating officer PW 9 Gyan Prakash was examined on 20-6-83, but he did not prove these reports. The learned Sessions Judge, while exercising the powers under Sections 391 Cr. P. C, directed the learned Magistrate to recall PW 9 Gyan Prakash and tender the reports of the State Forensic Science Laboratory in evidence. Section 391 Cr. P. C. authorises the appellate Court to take further evidence in the case or direct it to be taken by the trial Court if the Court thinks that the additional evidence is necessary to be taken. It is true that though the powers are vested in the appellate Court to take additional evidence in a suitable case, but this discretion should not be exercised in order to fill-up the gap or the lacuna left by the prosecution. PW 9 Gyan Prakash, in his statement before the trial Court, has stated that the articles were sent for F. S. L. examination, they were kept duly sealed and the hand-writing of the accused was, also, sent, but it appears that due to some inadvertance, the documents could not be exhibited. The discretion whether to take any additional evidence or not, is with the trial Court and the Court is to act in the exercise of the jurisdiction judiciously and in accordance with the sound principle. In the present case, the discretion exercised by the learned trial Court cannot be said to be in any way arbitrary or unjust. The order, passed by the learned trial Court thus, does not require any interference. In the result, I do not find any merit in this miscellaneous petition and the same is hereby dismissed. .;