Godman Asharam's bid to summon cop with 'secret video' rejected by SC

A former police officer wrote a book claiming he filmed the crime scene a day before the official inspection. The convict wanted him in court. The Supreme Court said no.

On an August afternoon in 2013, a minor girl walked into an ashram in Jodhpur. The air inside the 'Kutiya' — the godman's living quarters — was thick with incense and dust. She never walked out the same. By sunset, Asharam Bapu — a self-styled godman with a following stretching from Bollywood to the backstreets of Delhi — had allegedly sexually assaulted her. Eight years later, a special court sentenced him to life imprisonment. But the case did not end there. It took a strange turn when a former police officer's book claimed to contain a mobile phone video of the crime scene — recorded a full day before the official police inspection. The convict wanted that officer summoned as a witness. The Supreme Court had to decide: was the video a missing piece of the puzzle, or just a delay tactic dressed up as evidence?

The book that said nothing

The former police officer — then the Deputy Commissioner of Police (West), Jodhpur — wrote a book years after the incident. In it, he disclosed that on 21 August 2013 — one day before the official site inspection — he had visited the ashram and recorded a video of the crime scene on his mobile phone. The prosecution never denied that police officers had visited the scene on that date. But the book said nothing about the video being shown to the victim. It said nothing about the video being handed over to the investigating officer. It said nothing at all about the video being used to tutor the girl about the layout of the room where the assault allegedly took place.

None of that stopped Asharam's lawyers from filing an application before the Rajasthan High Court. They wanted the officer — Ajay Pal Lamba — summoned as an additional witness under Section 391 of the CrPC (a provision that allows an appellate court to take fresh evidence if it is necessary for a just decision). Their argument: the video proved that the victim had been shown the crime scene before the official inspection, which meant her testimony at trial was tainted. The High Court agreed and allowed the application. The State of Rajasthan — the prosecution — rushed to the Supreme Court.

A video that proved nothing

The Supreme Court bench, comprising Justice Sanjiv Khanna and Justice M.M. Sundresh, did not mince words. The High Court, they said, had erred both in facts and in law. On facts: the police visit to the ashram on 21 August 2013 was never disputed by the prosecution. The book did not claim the video was shown to the victim or given to the investigating officer. So what exactly was the "additional evidence" supposed to prove? On law: the discretion under Section 391 CrPC is more restricted than the power under Section 311 CrPC (the trial court's power to summon any witness at any stage). The appellate court deals with a case after the trial court has already pronounced its verdict. The test is not whether it is impossible to pronounce judgment without the additional evidence. The test is whether there would be a failure of justice without it.

The Court cited its own precedents — Rajeswar Prasad Misra v. State of West Bengal (1966), Zahira Habibulla H. Sheikh v. State of Gujarat (2004), and State (NCT of Delhi) v. Shiv Kumar Yadav (2016) — to underline that the power to take additional evidence in an appeal must be exercised with caution, for good and valid reasons, and only to prevent injustice. It is not a tool to reopen a case eight years after the occurrence, especially when the proposed evidence is irrelevant to the factual matrix.

The Court's reasoning was crisp. It held that the application under Section 391 CrPC — filed years after the incident and after conviction — was an attempt to delay proceedings, not to bring relevant evidence to light. The proposed evidence, the Court noted, could not satisfy the test for allowing additional evidence because it was irrelevant to the factual matrix. The book nowhere stated that the video was shown to the victim or transferred to the investigating officer. The police visit on 21 August 2013 was undisputed. There was no failure of justice to prevent.

In the courtroom, as the bench read out its findings, a stillness settled over the gallery. The book's contents had been laid bare — page after page, line after line — and they had yielded nothing. No mention of the victim. No mention of the investigating officer. Just a former officer's account of a visit that the prosecution had never denied. The silence in the room felt heavier than any argument could have been.

The right to a speedy appeal

The Court went further. It reminded everyone that the right to a speedy trial — including the speedy disposal of an appeal — does not belong only to the accused. It is an obligation the court owes to society in general and to the victim in particular. Asharam's application, filed eight years after the incident and after his conviction, was not a genuine attempt to bring relevant evidence to light. It was an attempt to delay the proceedings and effectively reopen the entire case. The Court set aside the High Court's order and directed the High Court to hear the pending appeal expeditiously.

The judgment, delivered on 17 April 2023, in Criminal Appeal No. 1156 of 2023, arose from a Special Leave Petition filed by the State of Rajasthan. The Court's operative order was clear: the appeal was allowed, the impugned judgment was set aside, and the High Court was requested to take up the appeal for expeditious hearing. The Court also clarified that its observations were limited to the disposal of the issues raised and would not influence the High Court's adjudication of the criminal appeal.

The case file itself felt thin — not in pages, but in substance. The proposed evidence, when weighed against the eight-year delay, did not tip the scales. The bench had seen through the stratagem, recognising that the application under Section 391 CrPC was not about justice but about obstruction.

What this means for you

For criminal lawyers, the message is clear. Section 391 CrPC is not a second chance to fish for evidence after a conviction. It is a narrow window that opens only when the appellate court is convinced that without the additional evidence, the case would suffer a failure of justice. An application that relies on a book that says nothing about the key allegation — that the video was shown to the victim — will not pass muster. And a delay of eight years will only make the court more suspicious.

The Court's ratio decidendi is instructive. The discretion under Section 391 CrPC is somewhat more restricted than the power under Section 311 CrPC at the trial stage, because the appellate court deals with a case after the trial court has already pronounced its decision on guilt or innocence. The power to take additional evidence in an appeal must be exercised to prevent injustice and failure of justice, for good and valid reasons necessitating acceptance of the prayer. The test is not impossibility of pronouncing judgment without the evidence, but whether there would be failure of justice without it. An application that seeks to summon additional evidence which is irrelevant to the factual matrix, filed years after occurrence, and which would effectively reopen the entire case and delay appellate proceedings, does not satisfy the test.

The Court also drew on other precedents to reinforce its stance. In Girish Kumar Suneja v. Central Bureau of Investigation (2017), the Court had held that the power under Section 391 must be exercised sparingly and only in exceptional circumstances. In P. Ponnusamy v. State of Tamil Nadu (2022), the Court had reiterated that the appellate court's discretion is not a carte blanche to reopen settled findings. In State of West Bengal v. Amiya Kumar Biswas (2004) and Ritesh Tewari v. State of Uttar Pradesh (2010), the Court had emphasised that the right to a speedy trial is a constitutional guarantee that extends to appeals as well. Each of these cases, cited by the bench, served as a reminder that the judiciary will not allow procedural tools to be weaponised for delay.

THE PLAY: Before filing an application under Section 391 CrPC, ask yourself: does the proposed evidence directly contradict a fact that the prosecution never denied? If not, the court will see it as a delay tactic — and so should you.

The godman remains in jail, his appeal still pending before the Rajasthan High Court. The video was never produced. The former police officer's book remains just that — a book that said nothing of consequence.