Prem Choudhary v. The State Of Bihar & Anr.

An FIR was lodged on 2nd January 1991 for the offences u/s 141,341, 323, 325, 307 and 379 IPC . Later on after death of victim, Section 302 IPC was also added. Upto 13th April 2007, six witnesses were examined by the prosecution and prosecution has closed its evidence on 11th September 2007. On 28th September 2007 the accused persons were examined u/s 313 Cr.P.C. and on the same day, an application u/s 311 Cr.P.C. was filed by the APP pointing out that the I.O. and the doctor who are important witnesses have not been examined and the same was allowed vide order dated 27th July 2009, when the I.O. and the doctor did not 2 Patna High Court Cr.Misc. No.10530 of 2011 (2) dt.03-07-2012 appear for their examination, ultimately, the case was closed. In course of argument, when it was pointed out that the I.O. and the doctor have not been examined an application filed u/s 311 Cr.P.C. on 28th February 2011 was allowed by the court below. Counsel for the petitioner submits that now more than one year has crossed, even after passing of the impugned order the doctor and the I.O. have not been examined. He further submits that it is nothing but to fill up the lacuna by the prosecution which is not permissible in law and the court below has wrongly exercised the power u/s 311 Cr.P.C. Learned counsel for the State has contradicted the argument and stated that the court below can exercise the power u/s 311 Cr.P.C. at any stage. It is well known principle of law that the power u/s 311 an be exercised at any stage of trial, as has been enunciated by the Hon’ble Supreme Court in 2007(1) PLJR 10 (SC) (U.T.of Dadra & Haweli v. Fatehsinh Mohansinh Chauhan) and the Hon’ble Supreme Court dealt with power in the following terms: “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 3 Patna High Court Cr.Misc. No.10530 of 2011 (2) dt.03-07-2012 Act, 1872 by say 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 Pubic 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 4 Patna High Court Cr.Misc. No.10530 of 2011 (2) dt.03-07-2012 to be rectified. After all, function of the criminal court is administration of criminal justice and not to court errors committed by the parties or to find out and declare who among the parties performed better.” Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P.Chhaganlal Daga vs. M. Sanay Shaw (2003) 11 SCC 486 where permission granted by the Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna”. Here a case u/s 302 IPC has been lodged where the court below has found that the evidence of I.O. and the doctor are necessary for ends of justice. The evidence of the doctor and the I.O. could not amount to filling up the lacuna, as the doctor will explain the nature of injury and the I.O. will explain as to what he 5 Patna High Court Cr.Misc. No.10530 of 2011 (2) dt.03-07-2012 found during the investigation. In absence of aforesaid two material evidences, the prosecution would suffer a great loss. In this view of the matter, I do not find any error in the order of the court below This petition is, accordingly, dismissed. However, it is directed that the court below will conclude the trial at any cost within four months from the date of receipt/production of copy of this order and it is expected that the court below will exercise all powers as provided under the Code of Criminal Procedure for procuring the attendance of the Doctor and the I.O., even the Court can take coercive measures for their attendance. (Shivaji Pandey, J) Jay/-