Miyana Ismailbhai Noormohammed and Others vs State of Gujarat

J.R. Vora, J.—This revision application is filed by the original accused of Sessions Case No. 39 of 2001 pending before the learned Fast Track Court Judge (learned Addl. Sessions Judge), Dhangadhra against an order passed by the said Court on 11-3-2003 rejecting (sic.) allowing an application of the prosecution Exh. 139 u/s 311 of Code of Criminal Procedure to examine additional witness Sattarbhai Adubhai. The applicants are facing trial for the offence punishable u/s 302 of Indian Penal Code.

After the trial was almost over, an application at Exh. 139 came to be filed by the prosecution to examine witness Sattarbhai Adubhai alleged to be an eye-witness of an incident and not shown as witness in the charge-sheet nor his statement u/s 161 of Cr.P.C. came to be recorded by Investigating Officer. Application was objected by the defence and after hearing the parties, the trial Court came to the conclusion that the witness who is proposed to be examined is spn-in-law of deceased and brother-in-law of complainant Mumtazben. In the evidence on record, it is disclosed that the witness might be present at the time of incident. The trial Court further observed that only because I.O. has not examined him u/s 161 of Cr.P.C. or not cited as a witness in the charge-sheet, would not establish the fact that the witness might or might not be the eye-witness of the incident. The trial Court further observed that by summoning witness Sattarbhai Adubhai, no prejudice would cause to the defence.

Learned Advocate Mr. Dagli for the petitioner attacked the order impugned on the ground that the application u/s 311 of Cr.P.C. came to be filed at belated stage when trial was almost over and whole evidence was recorded. It was urged that now summoning and examining the witness Sattarbhai Adubhai great hardship and prejudice is likely to be caused to the accused-present petitioners inasmuch as the defence of the accused in the trial is disclosed. It was further argued that in three-line application, the concerned P.P. in-charge of the prosecution, did not mention any reason to justify to exercise the discretion of the Court u/s 311 of Cr.P.C. It was further argued that had the reason been assigned in the application u/s 311 of Cr.P.C., the defence would have met the same and controverted the reason. It was urged that the defence was deprived of such an opportunity. It was further emphasized that now when the trial is over, to fill up the lacuna in prosecution case, this application is preferred by the prosecution at belated stage which was against the law. Learned Advocate for the petitioners also relied upon the decision of Mysore High Court in the matter of State of Mysore Vs. A.G. Ramaswamy, , the decision of Punjab & Haryana High Court in the matter of Budh Ram Vs. State of Punjab and Others, , the decision of Madras High Court in the matter of Re : N. Krishnaswamy & Ors., reported in 1956 Cri.LJ 583, the decision of the Rajasthan High Court, in the matter of Cheeku Singh v. State of Rajasthan, reported in 1998 (1) Cri 622 (Raj.), and the decision of Bombay High Court in the matter of B.D. Goel Vs. Ebrahim Haji Husen Sanghani and Others, , to substantiate his contention that belated application u/s 311 of the Code of Criminal Procedure and that too fill up the lacuna in prosecution case must not be entertained.

Learned A.P.P. Ms. Shah relying on the scope of Section 311 of Cr.P.C. urged that what is to be seen is interest of justice, She has argued that name of Sattarbhai Adubhai as witness is not unknown to either prosecution or defence. So, many witnesses have referred Sattarbhai Adubhai to be present at the time of incident and in respect of the trial as envisaged u/s 311 of Cr.P.C. discretion used by the trial Court in the interest of justice, may not be upset.

To resolve the controversy raised in this revision application, one has to understand the scope of Section 311 of the Code of Criminal Procedure and what is meant by lacuna in prosecution case.

Examining the scope of Section 311 of the Code of Criminal Procedure, it clearly transpires that in the shape of this provision, the Courts are adequately equipped with aid to prob deep for the search of truth. The Courts which are enjoined pious duty to find out truth and render just decision are enabled by this provision to exercise free discretion at any stage of enquiry, trial or other proceedings to summon any person as witness or examine any person in attendance though not summoned as witness or re-call or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. When a Court of law finds that such an exercise is necessary for just decision of a case, it becomes the duty of the Court to summon such witnesses who would not otherwise be brought before the Court, The Courts are empowered to exercise these powers suo motu Therefore, the provision confers wide discretion on the Courts to act as the exigencies of justice require.

A lacuna in prosecution is not to be equated with the fall-out 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. The Apex Court in the matter of Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, in this respect observed as under in Paras 6 and 7 :

"6. 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 fall-out 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 foreclosed 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."

Therefore, the argument that the application is filed to fill up lacuna in prosecution case is misconceived. There is no inherent weakness in prosecution case which is sought to be corrected by application to examine the witness. It is pertinent to note that P.W. 9 Exh. 103 Sharifaben Ayub, P.W. 11 Exh. 107 Mulbanu Ayubbhai, P.W. 12 Exh. 109 Muniben Ayubbhai have in categorical terms deposed before the Court that Sattarbhai was present when the incident occurred. Failure to record the statement by the Investigating Officer of this witness must not impede the course of justice. It is now settled law that accused must not be profited by the defects of the Investigating Agency, and therefore, that must be the reason for the Legislatures to incorporate beneficial legislation like Section 311 of Cr.P.C. So, in the present case, the application cannot be said to have been filed to fill up the lacuna or gap in the prosecution case as decided by the Apex Court in the above decision of Rajendra Prasad (supra).

So far as the stage is concerned, what is material is the discretion of the Court to come to the conclusion whether certain evidence is necessary to arrive at just decision. In this case, the trial Court has given ample reason for summoning a witness who clearly appears to be a person having knowledge and can depose before the Court to assist in arriving at just decision by the Court. This is only important criteria which is required to be taken into consideration u/s 311 of Cr.P.C. viz a viz stage of the trial. Therefore, the phrase "at any stage" has gained ground and included in the provision. Only because the defence is disclosed no prejudice may be said to have been caused to the accused on summoning witness Sattarbhai Adubhai. The defence shall not be deprived of right to cross-examine such witness and test the veracity. So far as the stage is concerned, in above-mentioned decision of Rajendra Prasad (supra), the Supreme Court observed in Para 11 as under :-

"11. We cannot, therefore, accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for re-summoning certain witnesses, cannot therefore, be spurned down nor frowned at."

Further, if we consider the facts by different angle, the principle of fair trial not only applies to the defence or accused, but the same applies to prosecution as well. u/s 311 of Cr.P.C. as established by the Apex Court, the power of the Court is plenary in summoning the witness, more particularly in this case Sattarbhai appears crystally clear on scenario as a witness. Non-examination by the I. O. of such witness is a defect of the Investigating Agency for which prosecution must not suffer. Refusing to exercise discretion in favour of prosecution would not be only de hors the provisions of Section 311, but the same would also amount to denial of fair trial to the prosecution. Whether witness Sattarbhai was actually eye-witness or not or his credibility etc., will be judged by the trial Court while appreciating his evidence, but undoubtedly summoning him as a witness is necessary for just decision.

True, it is that any move made to any Court must be disciplined move and this is a universally recognised protocol followed by all concerned since centuries in our judicial system. The application at Exh. 139 which P. P. incharge of the trial filed before the trial Court, though may not be so in fact, but certainly gives an impression of perfunctorily submitted. Motions to the Court must be reasoned. P.P. is an important component in justice delivering system. Hope emanates from this Court to the concerned authorities to bring it to the concerned P. P. to be careful in prime duty of dispensation of justice. More detailed application could have been given which is a protocol discipline for the whole system. Though, in the particular case not assigning detailed reasons in the application for summoning the witness would not materially affect result of the case as it appears from the order impugned that reasons were on record of the case and the learned trial Judge considered the same. Further, the Court may exercise suo motu powers in such circumstances.

In this view of the matter, the decision cited by learned Advocate for the applicant would not be helpful to the defence.In the result, for the foregoing reason, this application stands rejected. Notice discharged.