Holding

Summoning a material witness under Section 311 Cr.P.C. to obtain evidence essential for a just decision does not constitute filling a lacuna in the prosecution case, and the Sessions Judge’s order was valid.

Summary

The appellant Union Territory of Dadra & Nagar Haveli sought to summon the Collector as a material witness under Section 311 of the Cr.P.C. after the defence had pleaded alibi and presented evidence. The High Court set aside the Sessions Judge’s order, holding that the summons would fill a lacuna in the prosecution case. The Supreme Court examined the scope of Section 311, emphasizing that the power may be exercised at any stage to obtain evidence essential for a just decision, and that such exercise is not prohibited merely because it occurs after the defence evidence is recorded. It held that the Collector’s testimony was necessary to test the alibi and would not prejudice the accused, who had already led supporting evidence. Consequently, the Court restored the Sessions Judge’s order and allowed the appeal.

Issues considered

Whether summoning the Collector under Section 311 Cr.P.C. after the defence evidence amounts to filling a lacuna in the prosecution case.
Whether the exercise of power under Section 311 Cr.P.C. is permissible at the stage when defence evidence has been recorded.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 173, s. 190, s. 207, s. 311, s. 313, s. 397, s. 401, s. 482
Indian Evidence Act, 1872

Subjects

Section 311 Cr.P.C.material witnessalibi defencelacuna in prosecution casecriminal procedureevidencecourt's discretionjustice

Judgment

A U.T. OF DADRA & HA YELi AND ANR.
v.
PATEL SINH MOHANSINH CHAUHAN

AUGUST 14, 2006

B [G.P. MATHUR AND A.K. MATHUR, JJ.]

Code of Criminal Procedure, 1973:

Section 311-Material witness-Summoning of-Power ofCourt-When
C amounts to filling of a lacuna in the prosecution case-Plea of alibi-
Accused was assigned the role of instigation in an incident-In his statement
under S. 313 Cr.P.C. the accused took a plea of alibi that, at the time of the
alleged incident, he was present in the chamber of the Collector as a meeting
had been called there-The Special Public Prosecutor moved an application
D under S. 311 Cr.P.C. for summoning the Collectur to be examined as a
witness-Sessions Judge allowed the applic:ation-But the High Court set
aside the order holding that summoning the Collector under Section 311
Cr.P.C. would result in permilling the prosecution to fill in the lacuna in the
prosecution case-Correctness of-Held: Calling a witness or re-examining
a witness already examined for the purpose offinding out the truth in order
E to enable the Court to arrive at a just decision of the case cannot be dubbed
as "filling in a lacuna in prosecution case"-The evidence of the Collector
would not cause any prejudice to the accused as he had himselfpleaded alibi
and had led evidence to substantiate the same-The High Court clearly erred
in selling a~ide the order pass<!d by the Sessions Judge.
F
The respondent-accused A-7 was assigned the role of instigation in an
incident in which the deceased was assaulted and injuries were caused to some
others. In his statement under Section 313 of the Code of Civil Procednre,
1973 which was recorded after the close of the prosecution evidence, the
respondent took a plea of alibi and submitted that he was a prominent member
G of a political party and at the time of the incident he was present in the chamber
of the Collector as a meeting had been called there. The respondent examined
two witnesses in support of his plea of alibi. The Special Public Prosecutor
moved an application under Section 311 Cr.P.C., for summoning the Collector,
named by the respondent, to be examined as a witness. The Sessions Judge

H 522
UTOFDADRA&HAVELI '" PATELSINH MOHANSINHCHAUHAN 523
allowed the application. A
Being aggrieved, the respondent filed an application under Sections 397/
401/482 Cr.P.C. and Article 227 of the Constitution of India before the High
Court for setting aside the aforesaid order. The High allowed the application
holding that summoning the Collector under Section 311 Cr.P.C. would result
in permitting the prosecution to fill in the lacuna in the prosecution case. B
Hence the appeal.

The following question arose before the Court:-

Whether the order passed by the Sessions Judge comes within the C
parameters of Section 311 of the Code of Criminal Procedure, 1973, which
confers power on the Court to summon a material witness or examine a person
present in Court?

Allowing the appeal, the Court
D
HELD: I. The principle is well-settled that the exercise of power under
Section 311 of the Code of Civil Procedure, 1973 should be resorted to only
with the object offinding out the truth or obtaining proper proofof such facts
which lead to a just and correct decision of the case, this being the primary
duty of a criminal court. Calling a witness or re-examining a witness already
examined for the purpose of finding out the truth in order to enable the Court E
to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna
in prosecution case" unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing
serious prejudice to the accused resulting in miscarriage of justice.
(533-F-HJ F
State of West Bengal v. Tulsidas Mundhra, (1964) 1 Crl. L.J. 443,
Jama/raj Kewalji Govani v. State of Maharashtra, AIR (1968) SC 178,
Mohan/al Shamji Soni v. Union of India, AIR (1991) SC 1346, Rajendra
Prasad v. Narcotic Cell, [1999] 6 SCC IIO and P. Chhaganlal Daga v. M
Sanjay Shaw. (2003] 11 sec 486, relied on. G

Ram Jeet v. State, AIR (1958] All 439, approved.

2. The charge-sheet submitted by the police under Section 173 Cr.P.C.
after completion of investigation contains the statements of the witnesses as H
recorded under Section 161 Cr.P.C. and in a case exclusively triable by court
524 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A of Sessions there is a duty enjoined on a magistrate to furnish to the accused,
free of cost, a copy of the police report including a copy of the FIR, statement
of the witnesses under Section 161 Cr.P.C. and other documents as mentioned
in Section 207 Cr.P.C. It is on the basis of the charge-sheet that the magistrate
takes cognizance of the offence under Section 190(l)(b) Cr.P.C. Normally,
B the investigating agency cannot visualize at that stage what will be the nature
of defence which an accused will take in his statement under Section 313
Cr.P.C. as the said stage comes after the entire prosecution evidence has been
recorded. The prosecution is only required to establish its case by leading
oral and documentary evidence in support thereof. While leading evidence
the prosecution may not be in a position to anticipate or foresee the nature of
C defence which may be taken by the accused and evidence which he may lead
to substantiate the same. Therefore, it is neither expected to lead negative
evidence nor is it possible for it to lead such evidence so as to demolish the
plea which may possibly be taken by the accused in his defence. This being
the normal situation, an application moved by the prosecution for summoning
D a witness under Section 311 Cr.P.C., after the defence evidence has been
recorded, should not be branded as "an attempt by the prosecution to fill in a
lacuna". [534-A-E)

3. In the facts and circumstances of the case, the examination of the
then Collector cannot be termed as filling in a lacuna in the prosecution case.
E The Sessions Judge rightly observed that the evidence of the Collector will
not cause any prejudice to the respondent as he had himself pleaded alibi and
had led evidence to substantiate the same. The High Court clearly erred in
setting aside the order passed by the Sessions Judge. (534-G-H; 535-AJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 834 of
F 2006.

From the Judgment and Order dated 8.10.2004 of the Bombay High
Court in Criminal Application No. 3958 of 2004.

G Ranjit Kumar, Dipesh Mehta, Santosh Paul, Abhisekh K. Rao, Praji K.J.
and M.J. Paul for the Appellants.

Arun Jaitley, Jaideep Gupta, Shivaji M. Jadhav, Himanshu Gupta and
Brij Kishor Sah for the Respondent.

H T. Raja for the Applicant.
U.T OFDADRA&HA VELI v. PATELSINHMOHANSINHCHAUHAN [G.P.MATHUR,J.] 525

The Judgment of the Court was delivered by A
G.P. MATHUR, J. I. Leave granted.

2. This appeal, by special leave, has been preferred against the judgment
and order dated 8.10.2004 of Bombay High Court by which the revision
preferred by the respondent was allowed and the order dated 12.8.2004 passed B
by the learned Sessions Judge, Dadra & Nagar Haveli, Silvassa, summoning
Shri S.P. Marwah, the then Collector, Dadra & Nagar Haveli, Silvassa under
Section 311 Cr. P.C. was set aside.

3. One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on
29.4.1996 at P.S. Khanvel alleging that on the instigation of accused A-7, A- C
8 and A-9 accused A-I to A-6 had assaulted the deceased Bapjibhai Bhoya
and caused injuries to some others. The respondent herein Fatehsinh
Mohansinh Chauhan is A-7 and he was assigned the rcle of instigation -
'Maro Maro, Pakdo Pakdo'. After usual investigation charge sheet was
submitted against all the nine accused and the case was committed to the D
Court of Sessions. In his statement under Section 313 Cr.P.C. which was
recorded after close of the prosecution evidence, the respondent took a plea
of alibi and submitted that he is a prominent member of a political party and
at the time of the incident, he was present in the chamber ofShri S.P. Marwah,
Collector, Dadra & Nagar Have Ii, Silvassa, as a meeting had been called there.
The respondent examined two witnesses, viz., OW.I O.P. Misra, Deputy E
Collector and DW.2 R.N. Parmar, Executive and Sector Magistrate, Dadra, in
support of his plea of alibi that he was present in the chamber of Shri S.P.
Marwah. The Special Public Prosecutor, thereafter, moved an application,
purporting to be one under Section 311 Cr.P.C., praying that Shri S.P. Marwah,
the then Collector of Dadra & Nagar Haveli, Silvassa and currently posted as p
Director, Jal Nigam Board, New Delhi, may be summoned and examined as a
witness. The application was opposed by respondent no. 7 by filing a written
reply on the ground, inter alia, that he had raised a plea of alibi at the very
beginning, which was very well known to the investigating agency, but no
investigation in that direction had been made and the defence taken by him
in his statement under Section 313 Cr.P.C. was not a sudden or unexpected G
one. It was also submitted that the prosecution was not entitled to fill in a
lacuna. by moving an application under Section 311 Cr.P.C for the purpose of
summoning a witness. The learned Sessions Judge, after referring to the
authorities cited by the counsel for the parties, allowed the application moved
by the Special Public Prosecutor by the order dated 12.8.2004 and the relevant H
526 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A part of the order which has a bearing on controversy in dispute is being
reproduced below :-

"The gist of all these authorities is that the best available evidence
should be brought before the Court to prove point in issue. However,
it is kft either to the prosecution or to the defence to establish its
8 respective case by adducing the best available evidence. Under Section
3 11 of the Code of Criminal Procedure it is the duty of the Court not
only to do justice but also to ensure that justice is being done. In
order to enable the Court to find out the truth and render a just
decision, provisions of Section 311 of the Code can be invoked by
C exercising judicial discretion at any stage of enquiry, trial or other
proceeding.

This Court is conscious of the fact that matter is very old and is
lingering on some or the othP.r ground since long. But this alone will
not be sufficient to reject an opportunity to the prosecution particularly
D when the dt:fence has kept behind the best available evidence of the
then Collector who had convened the meeting according to accused
No.7 in which he was present.

Moreover, it will not cause any prejudice to accused no. 7 as alibi
is his own defence. He will have an opportunity to cross-examine the
E witness. Thus in order to find out the truth, evidence of the then
Collector is necessary. In the interest of just and fair decision
application is to be allowed."

4. Feeling aggrieved, the respondent filed an application under Section
397/401/482 Cr.P.C. and Article 227 of the Constitution of India before the
F Bombay High Court for setting aside the order dated 12.8.2004 passed by the
learned Sessions Judge. The High Court held that the respondent had taken
a plea of alibi as far back as in the year 1996 when he had moved an
application for anticipatory bail and also when he opposed the application
moved by the prosecution for giving him on police remand. In the order dated
G 6.5.1996 passed by the learned Sessions Judge granting bail to the respondent,
it was observed that the investigating agency had not considered it appropriate
to place the relevant material or to rebut the plea of alibi taken by the
respond1.:nt. The High Court accordingly held that the grant of the application
moved by the Public Prosecutor for summoning the Collector, Dadra & Nagar
Haveli, Silvassa, under Section 311 Cr.P.C. would inevitably result in permitting
H the prosecution to fill in the lacuna in the prosecution case. It has been
U.T OF DADRA&HA YELi v. PATELSINHMOHANSINHCHAUHAN [G.P.MATHUR, J] 527

further observed that the respondent had already examined two witnesses A
and if the trial Court was of the opinion that the said evidence was insufficient,
a logical conclusion could be drawn for accepting or not accepting the
defence version and merely because the defence has chosen not to examine
one more witness, who should also have been examined by the defence, that
by itself may not be sufficient reason for invoking the powers under Section B
311 Cr.P.C. The application filed by the respondent was accordingly allowed
by the order under challenge and the order dated 12.8.2004 of the learned
Sessions Judge was set aside.

5. Shri Ranjit Kumar, learned senior counsel for the appellant has
submitted that Section 311 Cr.P.C. confers a very wide power on the Court to C
summon any person as a witness or to recall and re-examine any person
already examined 3t any stage of any inquiry, trial or other proceeding and
further the Section casts a duty upon the Court to summon and examine or
recall and re-examine any such person, if his evidence appears to be essential
to the just decision of the case. Learned counsel has further submitted that
the specific defence of the respondent is that at the relevant time he was D
·present in the chamber of Shri S.P. Marwah, the then Collector, Dadra & Nagar
Haveli, Silvassa, where a meeting had been called and, therefore, Shri S.P.
Marwah was the best person to give evidence regarding the said fact. The
learned Sessions Judge had also recorded a finding that in order to find out
the truth, the evidence of the then Collector Shri S.P. Marwah is necessary. E
In such circumstances, the order passed by the learned Sessions Judge was
eminently just and proper and the High Court has erred in interfering with the
said order and setting aside the same.

6. Shri Arun Jaitley, learned senior counsel for the respondent, has on
the other hand submitted that the incident took place on 29 .4.1996 and in the F
application for anticipatory bail moved shortly thereafter, a specific plea was
raised by the respondent that at the alleged time of the incident, he was
present in the meeting which had been convened by the Collector, Dadra &
Nagar Haveli, Silvassa. The respondent was arrested on 2.5.1996 and he was
remanded to police custody for three days and after expiry of the said period, G
an application was moved for extending the police custody, which was opposed
by the respondent on the ground that he was not present at the scene of
commission of crime and was actually present in the meeting in the chamber
0fthe Collector, Dadra & Nagar Haveli. The learned Chief Judicial Magistrate
rejected the prayer of the investigating agency for extending the police
remand by passing a detailed order on 6.5.1996, wherein it was observed that H
528 SlJPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A "the investigating officer should have thwarted out the alibi taken by the
accused at this preliminary stage by recording the statements of concerning
officers" and "it is the inaction or the casual approach of the police which
has disentitled the police to further custody". Shri Jaitley has also submitted
that in the order dated 7.5.1996 passed by the incharge Sessions Judge
granting bail to the respondent, it was specifically observed that the
B investigating officer had not even bothered to record the statement of those
high ranking officers to show that the contention of the accused was palpably
false though the accused even prior to his arrest or at the time of filing the
application for anticipatory bail had made a clear assertion about his being
present with those officers at the time of the incident and the police had not
C bothered to verify this vital fact by recording the statement of the concerned
officers. Learned counsel has also submitted that the entire cross-examination
of the prosecution witnesses had been directed on said line and a categorical
suggestion had been given to the witnesses that at the time of alleged
incident the respondent was present in the meeting which had been called by
the Collector. It has thus been submitted that the prosecuting agency having
D slept over the matter for such a long time it was not entitled to move an
application under Section 311 Cr.P.C. at such a belated stage i.e. on 19.7.2004
to summon the Collector of the Dadra & Nagar Haveli, Silvassa as a witness.
Learned counsel has also submitted that the course adopted by the prosecution
clearly amounts to filling in the lacuna in the prosecution evidence and the
E High Court was, therefore, perfectly justified in setting aside the order passed
by the learned Sessions Judge.

7. We have given our anxious consideration to the submissions made
by the learned counsel for the parties. The order passed by the learned
Sessions Judge shows that while moving the application for summoning the
F Collector of Dadra & Nagar Haveli, Silvassa under Section 311 Cr.P.C. it was
submitted on behalf of the prosecution that as the meeting had been called
in his chamber, he was the best person to depose about the presence of the
respondent, but the respondent had not chosen to examine him as a witness
in his defence and, therefore, to find out the truth, the evidence of Collector
G was necessary. This prayer was opposed on behalf of the respondent
principally on the ground that right from the beginning the plea of the
respondent was that at the time of the incident he was present in the chamber
of the Collector where a meeting had been called but the investigating agency
did not make any investigation in that regard, nor made any attempt to collect
the relevant evidence and at such a belated stage when the entire evidence
H had been recorded and the trial was almost over, the prosecution could not
U.T. OF DADRA & HA YELi v. PATELSINH MOHANSINH CHAUHAN [G.P.MATHUR, J.] 529

\e permitted to fill in the lacuna. The learned Sessions Judge was of the A
opinion that the accused had kept behind the best available evidence of the
Collector who had convened the meeting where he claimed to be present and,
therefore, in the interest of justice and fair decision, the application deserved
to be allowed.

8. What requires consideration, therefore, is whether the order passed B
by the learned Sessions Judge comes within the parameters of Section 311
Cr.P.C., which confers power on the Court to summon a material witness or
examine a person present in Court. Section 311 of Code of Criminal Procedure,
1973 is a verbatim reproduction of Section 540 of Code of Criminal Procedure,
1898 (for short 'old Code'). Section 311 Cr.P.C. reads as under: - C
"311. Power to summon material witness, or examine person present.-
Any Court may, at any stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the Court shall D
summon and examine or recall and re-examine any such person if his
evidence appears to it to be essential to the just decision of the case."

The scope and content of Section 540 of the old Code was considered in
several decisions rendered by the High Courts. A Division Bench of Allahabad
High Court in Ram Jeet and Ors. v. The State, AIR [1958] All 439 examined E
the provisions of the section in considerable detail. In this case after the
entire evidence had been recorded and the arguments had been heard and a
date for pronouncement of judgment had been fixed, the learned Sessions
Judge felt that for the just decision of the case the evidence of certain
persons who had not been examined hitherto was essential. Therefore, on the p
date originally fixed for delivery of judgment, he passed an order for summoning
and examining some persons as witness under Section 540 of the old Code.
The order passed by the learned Sessions Judge was challenged in revision
before the High Court and one of the grounds raised was that the examination
of fresh evidence was tantamount to making good lacunae in the prosecution
case and was, therefore, not justified under Section 540 of the old Code. It G
was held that the Section is manifestly in two parts; the first part gives purely
discretionary authority to the criminal Court; on the other hand, the second
part is mandatory. The discretion given by the first part is very wide and its
very width requires a corresponding caution on the part of the Court. But the
second part does not allow for any discretion; it binds the Court to examine H
530 Sl/PREME COURT REPORTS [2006J SUPP. 4 S.C.R.

A fresh evidence, and the only condition prescribed is that this evidence must
be essential to the just decision of the case. Dealing with the argument that
examination of fresh evidenc.: amounted to filling in lacuna in the prosecution
case. in para 4 of the reports, it was held :-

"The misconception instinct in the applicant's argument is made evident
B by this analysis of the terms of Section 540 and springs from a
disregard of the second part of the section. This part, as should be
plain, casts on the Court the duty of calling fresh evidence whenever
such evidence "appears to it essential to the just decision of the
case". That is to say. the paramount consideration should be the
c doing of justice in the case, and whenever the Court finds that any
evider.ce which is essential for this has not been examined, the law
enjoins it to call and examine it. If this results in what is sometimes
thought to be the "filling of loopholes", that is a purely subsidiary
factor and cannot be taken into account."

D The Bench also took note of illustration (g) of Section I l 4 of the
Evidence Act which says that evidence which could be and is not produced
would, if produced. be unfavourable to the person who withholds it. It was
observed that in the trial of criminal cases the Court should not rely on mere
presumptions when the second part of Section 540 obliges them to summon
E the witness in question, and at least criminal Courts unlike civil Courts (the
analogous provision of Order XVI Rule 14 of the Code of Civil Procedure
gives the civil Court merely discretionary authority) are not entitled to level
the type of criticism just referred to.

9. In State of West Bengal v. Tulsidas Mundhra, ( 1964) I Crl. L.J. 443,
F this Court considered the amplitude of Section 540 of the old Code. The
question which crose for consideration in this case was whether in proceedings
under Section 207A of the old Code (commitment proceedings before a
Magistrate in a case instituted on a police report and which was exclusively
triable by the Court of Sessions) the provision of Section 540 would be
applicable. It was held:-
G
Section 540 confers on criminal Courts very wide powers. It is no
doubt for the court to consider whether the power under this section
should be exercised or not. But if it is satisfied that the evidence of
any person not examined or further evidence of any person already
examined is essential to the just decision of the case, it is its duty to
G
U.T. OFDADRA& HA YELi v. PATELSINHMOHANSINHCHAUHAN [GP.MA THUR,J.] 53 J

take such evidence. The exercise of the power conferred by S. 540 is A
conditioned by the requirement that such exercise would be essential
to the just decision of the case."

10. In Jama/raj Kewalji Govani v. State of Maharashtra, AIR (1968) SC
178 after analysis of the provision of Section it was held as under in para I 0
of the reports : B
"Section 540 is intended to be wide as the repeated use of the word
'any' throughout its length clearly indicates. The section is in two
. parts. The first part gives a discretionary power but the latter part is
mandatory. The use of the word 'may' in the first part and of the word
'shall' in the second firmly establishes this difference. Under the first
c
part, which is permissive, the court may act in one of three ways : (a)
summon any person as a witness, (b) examine any person present in
court although not summoned, and (c) recall or re-examine a witness
already examined. The second part is obligatory and compels the
Court to act in these three ways or any one of them if the just decision D
of the case demands it. As the section stands there is no limitation
on the power of the Court arising from the stage to which the trial may
have reached, provided the Court is bona fide of the opinion that for
the just decision of the case, the step must be taken. It is clear that
the requirement of just decision of the case does not limit the action
to some thing in the interest of the accused only. The action may E
equally benefit the prosecution ................ "

11. In Mohan/al Shan~ii Soni v. Union of India & Anr., AIR (1991) SC
.1346 it was observed 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
F
or the points in issue. But it is left either for the prosecution or for the defence
to establish its respective case by adducing the best available evidence and
the Court is not empowered under the provisions of the Code to compel either
the prosecution or the defence to examine any particular witness or witnesses
on their sides. It is the duty of a Court not only to do justice but also to
ensure that justice is being done. It was further held that the second part of G
the Section does not allow for any discretion but it binds and compels the
Court to take any of the aforementioned two steps if the fresh evidence to
be obtained is essential to the just decision of the case. It was emphasized

-
that power is circumscribed by the principle that underlines Section 311
Cr.P.C., namely, evidence to be obtained should appear to the court essential
H
532 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R .

. /\. to a just decision of the case by getting at the truth by all lawful means.
Further, that the power must be used judicially and not capriciously or
arbitrarily. It was further observed that evidence should not be received as
a disguise for a retrial or to change the nature of the case against either of
the parties and the discretion of the Court must obviou~ly be dictated by
B exigency of the situation and fair play and good sense appear to be the safe
guides and that only the requirement of justice command the examination of
any person which would depend on the facts and circumstances of each case.
Rajendra Prasad v. Narcotic Cell, [ 1999] 6 SCC 110 is a decision where the
contention that the prosecution should not be permitted to fill in lacuna was
examined having regard to the peculiar facts where the exercise of power
C under Section 311 Cr.P.C. second time was challenged and, therefore, it is
necessary to notice the facts of the case in brief. The accused along with
some other persons was facing trial for offences under Sections 21, 25 and
29 of the NDPS Act. The prosecution and the defence closed their evidence
on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after
few more dates, at the instance of the prosecution two witnesses who had
D already been examined were reexamined for the purpose of proving certain
documents for prosecution. After they had been examined and the evidence
had been closed, the case was posted for hearing arguments, which was
heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public
Prosecutor moved an application seeking permission to examine Dalip Singh,
E S.I. and two other persons. Though the application was strongly opposed by
the counsel for the accused, the trial Court allowed the same in exercise of
its power under Section 311 Cr.P.C. and summons were issued to the witnesses.
The challenge raised to the order of the learned Sessions Judge by filing a
revision was dismissed by the High Court. In appeal before this Court it was
contended that in the garb of exercise of power under Section 311 Cr.P.c:, a
F Court cannot allow the prosecution to reexamine prosecution witnesses in
order to fill up lacana in the case specially having regard to the fact that Dalip
Singh witness was never tendered by the prosecution for cross-examination
and PW.4 Suresh Chand Shanna had also not been cross-examined by the
State. Repelling the contention raised on behalf of the accused it was held:
G
"7. 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

H
case". A lacuna in the prosecution is not to be equated with the
fallout of an oversight committed by a Public Prosecutor during trial,
-
U.T. OFDADRA&HA VEU "· PATELSINHMOHANSINHCHAUHAN (G P.MATHUR,J.] 533

either in producing relevant materials or in eliciting relevant answers A
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 !aches or mistakes during the conducting of a case
cannot be understood as a lacuna which a court cannot fill up.

8. Lacuna in the prosecution must be understood as the inherent B
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 C
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."
D
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 !aches only when the defence highlighted them
during arguments. Similar view has been taken in P. Chhaganlal Daga v. M.
Sanjay Shaw, [2003] 11 SCC 486 where permission granted by the Court to
E'
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.
F
12. A conspectus of authorities referred to above would show that the
principle is well settled that the exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding out the truth or obtaining
proper proof of such facts which lead to a just and correct decision of the
case, this being the primary duty of a criminal court. Calling a witness or re-
examining a witness already examined for the purpose of finding out the truth G

-· in order to enable the Court to arrive at a just decision of the case cannot
be dubbed as "filling in a lacuna in prosecution case" unless the facts and
circumstances of the case make it apparent that the exercise of power by the
Court would result in causing serious prejudice to the accused resulting in
miscarriage of justice.
H
534 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 13. The charge-sheet submitted by the police tmder Section 173 Cr.P.C.
after completion of investigation contains the statements of the witnesses as
recorded under Section 161 Cr.P.C. and in a case exclusively triable by court
of Sessions there is a duty enjoined on a magistrate to furnish to the accused,
free of cost, a copy of the police report including a copy of the FIR, statement
B of the witnesses under Section 161 Cr.P.C. and other documents as mentioned
in Section 207 Cr.P.C. It is on the basis of the charge-sheet that the magistrate
takes cognizance of the offence under Section 190( 1)(b) Cr.P.C. Normally, the
investigating agency cannot visualize at that stage what will be the nature of
defence which an accused will take in his statement under Section 313 Cr.P.C.
as the said stage comes after the entire prosecution evidence has been
C recorded. The prosecution is only required to establish its case by leading
oral and documentary evidence in support thereof. While leading evidence
the prosecution may not be in a position to anticipate or foresee the nature
of defence which may be taken by the accused and evidence which he may
lead to substantiate the same. Therefore, it is neither expected to lead negative
D evidence nor it is possible for it to lead such evidence so as to demolish the
plea which may possibly be taken by the accused in his defence. This being
the normal situation, an application moved by the prosecution for summoning
a witness under Section 311 Cr.P.C., after the defence evidence has been
recorded, should not be branded as "an attempt by the prosecution to fill in
a lacuna".
E
14. In the case in hand the respondent has raised a plea of alibi that
at the time of the alleged incident he was present in the chamber of the
Collector, Dadra & Nagar Haveli, Silvassa, who had called a meeting. In fact,
the respondent has led evidence on the said point by examining OW. I and
DW.2. The evidence of the then Collector, Dadra and Nagar Havelf might as
F well support the defence taken by the respondent. In such circumstances if
the learned Sessions Judge was of the opinion that in order to find out the
truth, the evidence of the Collector was necessary, no exception can be taken
to the course adopted by him. It was for the learned Sessions Judge to decide
whether for just and fair decision of the case, the evidence of the Collector
G is necessary or not and he having come to a conclusion that evidence of the
Collector was necessary for just and fair decision of the case, the order
passed by him could not have been set aside by the High Court on the
ground that it would amoun_t to filling in lacuna in the prosecution case. We
are clearly of the opinion that in the facts and circumstances of the case, the
examination of the then Collector, Dadra and Nagar Have Ii cannot be termed
H
UT OF..DADRA&HA VELI v. PATELSINHMOHANSINHCHAUHAN [G.P.MATHUR,J.] 535

as filling in lacuna in the prosecution case. The learned Sessions Judge A
rightly observed that the evidence of the Collector will not cause any prejudice
to the respondent as he had himself pleaded alibi and had led evidence to
substantiate the same. We are, therefore, of the opinion that the High Court
clearly erred in setting aside the order passed by the learned Sessions Judge.

15. In the result, the appeal is allowed and the judgment and order dated B
8.10.2004 passed by the High Court is set aside and the order dated 12.8.2004
of the learned Sessions Judge is restored.

v.s.s. Appeal allowed.

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