State Of Madhya Pradesh vs Ashish @ Golu

This revision has been filed under Section 397/401 of Cr.P.C. against the order dated 12/06/2013 passed by learned First Additional Judge to the Court of First Additional Sessions Judge Panna in S.T.No.23/2008 whereby learned Additional Sessions Judge rejected the applicant/State's application filed under section 311 of the Code of Criminal Procedure (further referred to as "the Code") to allow the prosecution to produce the handwriting expert in his evidence.

Brief facts of the case which are relevant for disposal of this petition are that the non-applicant/accused Ashish @ Golu is facing trial in ST No.23/2008 which is pending before First Additional Session Judge, Panna for the offences punishable under Section 364, 394 and 302 of the IPC. During trial of the case, after hearing the final arguments learned trial court fixed the case for judgement on 10/09/2008. However, on that date learned trial court instead of passing judgement, observing that it was necessary in the interest of justice to find out the owner of the bike found on the spot, directed that the said information be called from Road Transport Department. On that, information was received that said motorcycle was sold by the Satna Automobile to Ashish Sharma resident of Panna. In this regard learned trial court also recorded the statement of Mamta & Santosh Khare as court witness and thereafter took an additional examination of non-applicant/accused under Section 313 of "the Code". At this stage on 20/2/2009, non-applicant/accused Ashish @ Golu filed an application before trial Court to allow him to produce Handwriting Expert in his defence. Learned trial Court allowed that application. Thereafter recorded the statement of handwriting expert Kunj Bihari Agrawal (DW-1) as a defence witness and on 11/5/2019 after hearing the final argument learned trial court again fixed the case for judgment on 18/4/2009. On that date, the prosecution filed an application under Section 311 of "the Code" and requested to permit it to produce the handwriting expert as a prosecution witness. Learned trial Court allowed that application and permitted the prosecution to produce handwriting expert as a prosecution witness.

Thereafter, the prosecution produced Awadhesh Kumar Puranic (PW-17) as handwriting Expert learned trial court recorded his statement as a prosecution witness. Thereafter, learned trial Court fixed the case for additional examination of accused and after examining the applicant under section 313 of the Code learned trial court fixed the case for additional defense evidence on 29/7/2011. On that date non applicant/accused closed his defense evidence and the matter was fixed for final argument on 16/08/11. Against the order dated 18/5/2009 whereby learned trial Court permitted the prosecution to produce the handwriting expert, as prosecution witness non-applicant/accused preferred a petition which was registered as M.Cr.C.No.7662/2011 and was disposed of by this Court vide order dated 01/10/2011. By that order, this Court set aside the trial Court's order dated 18/5/2009 and directed the trial court to again pass a speaking order on that application after giving an opportunity of hearing to the non-applicant/accused.

That order was produced by the applicant before trial Court on 06.06.2013. Before receiving that order learned trial court had already recorded the statement of handwriting expert produced by the prosecution. On receiving the order learned Trial Court again heard both the parties on the application dated 18/5/2009 filed by the prosecution and vide order dated 12/6/2013 learned trial court rejected application observing that once the case was fixed for final arguments, Court has no jurisdiction to entertain any application. The Court is bound to pass the judgment. Being aggrieved from that order, applicant/State filed this petition.

Learned counsel for the applicant/State submitted that application under Section 311 of "the Code" can be entertained by the court at any stage before pronouncing of the judgement in the case. When trial Court after fixing the case for judgment recorded the statement of handwriting expert produced by the non applicant/accused in defence, in that case, learned trial Court is also bound to record the statement of handwriting expert produced by the prosecution, so order passed by the trial Court is not sustainable.

This Court has gone through the record and arguments put forth by the learned counsel for the applicant.

In the case of Mohanlal Shamji Soni Vs. Union of India & Anr. reported in 1991 Supp. (1) SCC 271, the Hon'ble Apex Court has interpreted the provision of Section 311 of the Cr.P.C. and held "This section is manifested in two parts. Whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. The second part which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

In the light of the above pronouncement of the Apex Court it is clear that the second part of Section 311 of the Code of Criminal Procedure imposes upon the judge an obligation, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case.

The application under section 311 of the code can be entertained at any stage of the trial before pronouncing of the judgement as held by the Divisional bench of this court in the case of Khoob Singh vs The State Of Madhya Pradesh (MCRC No. 26900 of 2017) order dated 08/03/2018 held "an application under Section 311 of the Code can be filed at any stage of trial even after conclusion of the argument as the trial is complete only after the judgment is announced. Section 353 of the Code contemplates that the judgment in every trial shall be pronounced in an open Court immediately after termination of the trial. Though the recording of the witnesses may be complete but the trial concludes only after pronouncement of the judgment."

So in the considered opinion of this court learned trial committed mistake in rejecting applicant's application on the basis that it has been filed after hearing final arguments in the case.

Apex court in the case of Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 held "It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the 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 prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a 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."

So only on the basis that prosecution filed the application after conclusion of final argument it can not be said that the prosecution filed the application for filing up a lacuna.

In the instant case learned trial Court after fixing the case for judgment on the request of non-applicant/accused gave him the opportunity to produce handwriting expert as a defence witness. In these circumstances, in the interest of justice, it is obligatory for trial Court to give the opportunity to the prosecution to file evidence of handwriting expert and only on the basis that prosecution filed that application at the date of judgment, the same could not be rejected.

Hence, the order passed by trial court dated 12/06/2013 is set aside and the application of prosecution dated 05/09/2019 is hereby allowed and the prosecution is permitted to produce handwriting expert as a witness in his evidence.

Here it is pertinent to note that in the light of said application the prosecution has already produced handwriting expert as a witness before the trial Court and trial Court has already examined that witness. So there is no need to give an extra opportunity to the prosecution to produce handwriting expert again. Learned counsel for the prosecution also admitted that he did not want to produce a new witness as a handwriting expert. It is sufficient that the statement of handwriting expert earlier produced by the prosecution be read in the prosecution evidence. Therefore, it is directed that the statement of handwriting expert Awadhesh Kumar Puranic (PW-19) recorded by trial Court earlier be read in evidence as prosecution witnesses.

Petition is disposed off accordingly

Copy of this order along with the record of the case be sent to the trial Court for necessary information.