Kamlesh vs State of U.P. and Another

B.K. Rathi, J.—Heard Sri Pradeep Chandra, learned Counsel for the applicant and the learned A.G.A.

The applicant is an accused in Sessions Trial No. 69 of 2001 pending in the Court of Fast Track-I, Kanpur Nagar. The argument of the case concluded and the case was reserved for judgment. Thereafter, the prosecution moved an application to call scribe of the F.I.R. u/s 311, Criminal Procedure Code for evidence. The said application has been allowed. Aggrieved by it, the present petition has been preferred.

It is contended that the witness cannot be summoned to fill up the lacunae. Learned Counsel in support of his argument has referred two decisions: (1) B.D. Goel Vs. Ebrahim Haji Husen Sanghani and Others, (Bombay High Court) and (2) Danday Knit Garments and Another Vs. Subiksha Spinners (P.) Ltd., (Madras High Court). However, it is not necessary to refer the law laid down in these cases.

The Apex Court in a recent decision of Rajendra Prasad v. Narcotic Cell 1999 (2) ACR 1575 (SC): 1999 (XXXX) ACC 333, has laid down a clear law on the point and also explained as to what amount to filling up the lacunae. Paragraphs 6 and 7 of the judgment are material which are as follows:

It is a common experience in criminal courts that defence counsel would raise objections whenever Courts exercise powers u/s 311 of the Code or u/s 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial either in producing relevant materials or in eliciting relevant answers from witnesses. The adage ''to err is human'' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.

Considering the arguments and the law laid by the Apex Court in this case, I do not find any illegality in the order of the trial court in summoning the witness u/s 311, Criminal Procedure Code It cannot be accepted that the prosecution had to fill up lacuna.

The petition fails and is hereby dismissed.