Asharam Bapu's lawyer wanted a cop's video as evidence. The Supreme Court said no.

A former police officer wrote a book about the case. In it, he said he recorded a video of the crime scene on his phone. The defence called it proof that the victim was coached. There was just one problem.

The book never said the video was shown to anyone.

Could a convicted godman get a new trial because a retired cop's memoir mentioned a phone video that nobody had ever seen? That was the question before the Supreme Court in April 2023. The answer turned on a single, unglamorous rule about when an appeals court can admit new evidence.

The 2:50 a.m. complaint

In August 2013, a 16-year-old girl walked into a police station in Delhi's Kamla Market at 2:50 a.m. She filed a Zero FIR — a complaint that can be registered at any police station, no matter where the crime happened — alleging she had been sexually assaulted at a spiritual retreat in Jodhpur. The FIR was transferred the next day to the Mahila Pashchim police station in Jodhpur, where it became FIR No. 122 of 2013.

The accused was Asharam Bapu, a self-styled godman with a sprawling ashram and a following that ran into lakhs. The prosecution alleged he had raped the minor victim inside his personal quarters, called the 'Kutiya', on the night of August 15-16, 2013.

In April 2018, a special court in Jodhpur, set up under the Protection of Children from Sexual Offences (POCSO) Act, convicted Asharam on multiple charges: trafficking of a minor (Section 370(4) IPC), wrongful confinement (Section 342 IPC), sexual harassment (Section 354-A IPC), rape by a person in a position of authority (Section 376(2)(f) IPC), gang rape (Section 376-D IPC), criminal intimidation (Section 506 IPC), and related offences under the Juvenile Justice Act and POCSO Act. He was sentenced to life imprisonment — for the remainder of his natural life.

The book that said nothing

Asharam appealed to the Rajasthan High Court at Jodhpur. The appeal was pending for nearly five years — a delay that would later matter to the Supreme Court.

During the appeal, Asharam's lawyers filed an application under Section 391 of the Code of Criminal Procedure, 1973 (CrPC) — a provision that allows an appellate court to take additional evidence if it considers it necessary. The application sought to summon a former Deputy Commissioner of Police, Ajay Pal Lamba, as a court witness.

Why Lamba? Because he had written a book about the case. In it, Lamba disclosed that he had recorded a video of the crime scene — the Kutiya — on his mobile phone on August 21, 2013, the day after the FIR was transferred to Jodhpur.

The defence argument was simple: the police had shown this video to the victim to tutor her about the layout of the crime scene. If true, this would have been a serious blow to the prosecution's case — a witness coached by the investigating team.

There was just one catch. The book never said the video was shown to the victim. It never said the video was given to the investigating officer. It only said Lamba had recorded it.

The High Court said yes. The Supreme Court said no.

The Rajasthan High Court allowed the application. It directed that Ajay Pal Lamba be summoned as a court witness. The State of Rajasthan — the prosecution — immediately challenged this order before the Supreme Court.

The question before the bench, comprising Justice Sanjiv Khanna and Justice M.M. Sundresh, was narrow but consequential: Had the High Court correctly exercised its discretion under Section 391 CrPC?

The State argued that the defence was on a fishing expedition. The book contained no allegation that the video had been shared with anyone. The police visit to the crime scene on August 21, 2013, was never disputed by the defence. So what exactly would Lamba's testimony prove?

The defence countered that the mere existence of the video, combined with the fact that the victim had described the crime scene in detail during trial, raised a reasonable suspicion that she had been coached. The appellate court, they argued, had the power to summon any witness whose testimony might affect the outcome of the appeal.

The Supreme Court allowed the State's appeal and set aside the High Court's order. The reasoning was crisp and turned on the nature of the power under Section 391 CrPC.

The court held that the discretion under Section 391 must be exercised more restrictively than the power under Section 311 CrPC (the trial court's power to summon any witness at any stage). The reason is obvious: an appellate court deals with a case after the trial court has already pronounced its verdict on guilt or innocence. The trial is over. The evidence has been recorded, tested by cross-examination, and weighed by a judge. To reopen the evidence at the appellate stage is an exception, not a routine option.

The court found that the proposed evidence — Lamba's testimony about his video — was "inconsequential and irrelevant" to the factual matrix of the case. Neither the book nor any other material established that the video had been shared with the investigating officer or shown to the victim. The fact that the police had visited the crime scene on August 21, 2013, was never in dispute. So what new fact would Lamba's testimony add?

The court also noted that the application was a dilatory tactic. The criminal appeal had been pending before the High Court for nearly five years. The right to a speedy trial, the bench observed, is not the exclusive right of an accused. It is an obligation the court owes to society in general and to the victim in particular. Applications that delay appellate proceedings must be scrutinised with this obligation in mind.

THE PLAY: Before filing a Section 391 application, ask one question: does the proposed evidence directly contradict a fact that the other side has already disputed? If not, the application is a delay tactic, not a legal remedy.

The court ended where it began: with a book that said nothing about what the defence claimed it said.