What does not amount to filling up lacuna in prosecution case

 Whenever a Court is inclined to exercise powers under Section 311 of the code or Section 165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. If any new material is to come on record can it be forestalled on the premise that would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error "committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err and human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to forclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defences and consequently serious prejudice would be caused to the accused. The Court, while exercising powers under Section 311 of the Code or Section 165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.

1994(1)KLJ54; 1994(3)crimes 1032 kerala

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 2143/93

Decided On: 07.12.1993

Appellants: Suja P. Chacko
Vs.
Respondent: State of Kerala

Hon'ble Judges/Coram:
K.T. Thomas, J.

*Case Note:
Code of Criminal Procedure, 1973 (Central Act 2 of 1974) - Section 311--Scope of--May examine, recall or re-examine any witness without causing prejudice to the defence.

The Petitioner and her husband are now being arraigned before a Judicial Magistrate of the First Class for offences relating to cheating. The Police Officer investigation charge-sheeted the case against them. The trial is reaching its final stages and examination of investigating officers is the next step. It was then that the Assistant Public Prosecutor filed an application for recalling P.W. 1 for the purpose of proving some bills. Overruling the objection from the accused the application was allowed. After P.W. 1 was examined the A.P.P. again filed another application to recall P.W. 2 for further examination. Though it was strongly resisted the learned Magistrate allowed the application. The order is impugned in the petition. Dismissing the application;

Held:

Whenever a Court is inclined to exercise powers under Section 311 of the Code or Section 165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fall out of an error committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err is human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defence and consequently serious prejudice would be caused to the accused. The Court, while exercising powers under Section 311 of the Code or Section 165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.

ORDER

K.T. Thomas, J.

1. This petition is by one of the accused in a criminal case to quash the order of the trial magistrate passed in exercise of powers under Section 311 of the Code of Criminal Procedure (for short 'the Code'). Petitioner characterised the prosecution as adopting filibuster.

2. Petitioner and her husband are now being arraigned before a Judicial Magistrate of first class for offences relating to cheating. The gist of the allegation is that the couple were mountebanks and swindled a jweller by giving a bogus cheque towards price of gold ornaments valuing nearly a lakh of rupees. Police after investigation charge sheeted the case against them. The trial is reaching final stage and examination of investigating officers is the next step. It was then that the Assistant Public Prosecutor filed an application for recalling P.W. 1 for the purpose of proving photo copies of three bills. Learned Magistrate allowed the application in spite of resistence from the accused. But a after P.W. 1 was recalled and further examined, Assistant Public Prosecutor again filed another application to recall P.W. 2 for further examination. Though it was strongly resisted, learned Magistrate allowed the application as per the impugned order.

3. Assistant Public Prosecutor has stated in the application that photo copies of three bills containing the signature of P.W. 2 were marked through P.W. 1, but since the defence has disputed the signatures in the bills it is "highly necessary to examine P.W. 1 again". Learned Magistrate granted it as he felt that for the just decision of the case it is necessary to prove the signatures on the questioned bills. He pointed out that defence has ample opportunity to cross-examine P.W. 2 and also to adduce their evidence.

4. Learned Counsel, who assailed the order, contended that the Court cannot, in exercise of powers under Section 311 of the Code, fill up the lacuna of the prosecution case and what is sought to be done is precisely the same.

5. Counsel invited my attention to the following observations of Ratnavel Pandian, J. in Mohanlal Shamji Soni v. Union of India MANU/SC/0318/1991 : A.I.R. 1991 S.C. 1346 in support of the contention:

Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an Unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.

6. Whenever a Court is inclined to exercise powers under Section 311 of the code or Section 165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. If any new material is to come on record can it be forestalled on the premise that would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error "committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err and human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to forclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defences and consequently serious prejudice would be caused to the accused. The Court, while exercising powers under Section 311 of the Code or Section 165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.

7. In the aforesaid context it has to be pointed out that Supreme Court has only reiterated the principle in Mohanlal Shamji Soni's case quite firmly and eloquantly that "it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue." Their Lordships cautioned all concerned that "if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated".

8. While it is true that it is either for the prosecution or for the defence to establish its respective case by adducing best evidence available, the Court is not expected to remain only as a silent spectator if either of the parties did not bring in the relevant evidence or material in spite of its availability. It is apposite to quote the following observations from the decision in Mohanlal Shamji Soni's case (cited supra),

In such a situation a question that arises; for consideration is whether the presiding officer of a Court should simply sit as a umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court of find out the truth and render a just decision, the salutary provisions of Section 540 of the code (Section 311 of the new code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute.

9. Legal position on this aspect has been pithly stated by Hidayatullah, J. (as the learned Chief Justice then was) in Jamatraj v. State of MaharashtraMANU/SC/0063/1967 : A.I.R. 1968 S.C. 178. The observations made therein were profitably extracted by Ratnavel Pandian, J. in Mohanlal Shamji Soni's case and it has been reiterated thus:

At the risk of repetition it may be said that Section 540 (the present Section 311) allows the Court to invoke its inherent power at any stage, as long as the Court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced anduntil then the Court has power to use this section.

(emphasis supplied)

Chinnappa Reddy, J. has also observed in the same tone in Ram Chander v. State of Hariyana MANU/SC/0206/1981 : A.I.R. 1981 S.C. 1036. This Court has considered a similar objection in Sebastian v. Food Inspector 1987 (1) K.L.T. 130 and stated thus:

The criticism that the Court is trying to fill up lacuna in prosecution evidence when it exercises powers under the section is partly due to an obsolete thinking about the role of the Court in adversary system of trial. It was considered at least in some quarters that the function of a Court is merely to judge the cause after silently observing or watching the performance by the rival sides in a case. Gone are the days when Court was supposed to be only a silent umpire. In a criminal Court, mainly three functionaries involved in the endeavour to reach the final goal, namely, dispensation of criminal justice. Prosecution and the defence are two of them and the Court is the third import (if not the most important) functionary. The Court has to play a dynamic role in the endeavour to reach the final goal. Of course, it must be done by keeping within the bounds provided by law. The language used in Section 165 of the Evidence Act, and the powers envisaged in Section 311 of the Code of Criminal Procedure are sufficiently eloquent informants of the dynamic role, which the Court is expected to function in a trial.

In fact, what their Lordships have stated in Mohanlal Shamji Soni v. Union of India MANU/SC/0318/1991 : A.I.R. 1991 S.C. 1346 was restatement of the legal position more emphatically and in clearer terms. The nub of that decision shall not be twitched by extracting a truncated portion therefrom so as to flit the real message contained in it.

I have absolutely no doubt that the learned Magistrate has adopted the right course in allowing the application made by the Assistant Public Prosecutor.

Accordingly, I dismiss this criminal miscellaneous case.

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