Saturday, 19 January 2013

Meaning of filling of gap or lacuna in prosecution case

Both the memos have been opposed vehemently on the side of the accused. C.C.262 of 1996 is a case filed under Section 498-A of I.P.C. and Section 4 and 6 of the Dowry Prohibition Act. The Court below rejected the petitions on the side of the prosecution on the premise that it amounted to filling up of the lacunae and that there were latches on the part of the prosecution having not filed those documents at as appropriate stage. In the process, the court below has not considered when exactly it amounts to filling up of the gaps of not. Filling up of the gap is so commonly used without understanding what exactly it is. If the gap is inherent in the case of the prosecution or it is patent wedge in the matrix of the case of the Prosecution, such gaps shall not be permitted to be filled up. The gaps that have arisen on account of inadvertent omissions during the process of the conduct of the trial cannot be considered to be the filling up of the gaps. The interests of justice requires aduction of further evidence so as to unravel the truth. On the ground that the Prosecution is trying to fill up the gap, no evidence can be shut down which is produced before the Court without exactly understanding what is meant by the expression lacunae or gap. The impugned orders, therefore, per se in my considered view, are not correct legal and proper.

Equivalent Citation: 2001(2)CriminalCC96
IN THE HIGH COURT OF ANDHRA PRADESH
Criminal Petition Nos. 5150 and 5151 of 2001
Decided On: 19.12.2001


ORDER
T.Ch. Surya Rao, J.
1. Since the parties are same and as the matter arises out of the same proceedings, both these petitions can be disposed of together.
2. During the course of the trial on behalf of the prosecution the Assistant Public Prosecutor filed a memo annexing there with certain documents, requesting the Court, to receive them as additional evidence since it has come to light about the importance of those documents. At the same time, Additional Public Prosecutor filed a memo under Section 311 of Cr.P.C. requesting the Court to summon two additional witnesses instead of the list witnesses. L.Hanumantha Rao and P.Hanumantha Rao who since died to examine the proposed witnesses being the legal heirs and who were conversant with the facts of the case. Both the applications having been dismissed under the two impugned orders in Crl.M.Ps.1495 of 2000 and 1929 of 2000 respectively in C.C.262 of 1996, the defacto complainant assails those orders in these two criminal proceedings as aforesaid.
3. Initially two separate criminal revision cases have been filed assailing those orders and after having realised that both the impugned orders are in the nature of interlocutory orders sought to convert those revision cases into petitions under Section 482 of Cr.P.C. Such permission having been given for such conversion these petitions have come up for hearing before this Court.
4. Both the memos have been opposed vehemently on the side of the accused. C.C.262 of 1996 is a case filed under Section 498-A of I.P.C. and Section 4 and 6 of the Dowry Prohibition Act. The Court below rejected the petitions on the side of the prosecution on the premise that it amounted to filling up of the lacunae and that there were latches on the part of the prosecution having not filed those documents at as appropriate stage. In the process, the court below has not considered when exactly it amounts to filling up of the gaps of not. Filling up of the gap is so commonly used without understanding what exactly it is. If the gap is inherent in the case of the prosecution or it is patent wedge in the matrix of the case of the Prosecution, such gaps shall not be permitted to be filled up. The gaps that have arisen on account of inadvertent omissions during the process of the conduct of the trial cannot be considered to be the filling up of the gaps. The interests of justice requires aduction of further evidence so as to unravel the truth. On the ground that the Prosecution is trying to fill up the gap, no evidence can be shut down which is produced before the Court without exactly understanding what is meant by the expression lacunae or gap. The impugned orders, therefore, per se in my considered view, are not correct legal and proper. On that ground alone the impugned order in Crl.M.P. 1495 of 2000 is liable to be set aside.
5. Further more, the documents which are sought to be introduced have been annexed to the memo filed on the side of the Prosecution. The Court below has not considered the importance of those documents whether they are necessary for an effective adjudication of the case before it or not. As can be seen from the copies of the documents made available before this Court they are nothing but the correspondence with the bank, the judgment of the suit and plaint filed there in. The relevancy of these documents should be seen first and they can be received if ultimately they are found to be germane for consideration as per the merits of the case.
6. Although the State has not come up before this Court assailing the impugned orders, the locus standi of the defacto complainant cannot now be questioned. Though the revision is not maintainable to render substantial justice in the matter nothing would prevent the exercise of the inherent powers of the Court under Section 482 of Cr.P.C. to rectify the mistake committed by the Courts below. In that view of the matter, I see no legal bar for maintaining these petitions and for receiving the documents filed on the side of the Prosecution as additional evidence. Therefore, criminal petition No.5150 of 2001 is got to be allowed.
7. Apropos the other impugned order in Crl.M.P.1929 of 2000, the prosecution seeks to examine two persons as additional witnesses who are the legal heirs of the two deceased list witnesses of the case. Since both the list witnesses died during the pendency of the proceedings that cannot be a ground for requesting the Court to examine the witnesses who are now proposed to be examined. The previous statements of these witnesses have not been recorded obviously for the reason that there was no opportunity to examine those witnesses by the Investigating Agency during the course of the investigation. Merely because two of the list witnesses died their legal heirs cannot be the relevant witnesses in the case. In that view of the matter the request of the prosecution to examine those witnesses appears to be quite unreasonable. I therefore see no illegality or material irregularity that has been committed by the Court below in having refused to consider the request of the prosecution to examine the additional witnesses under Section 311 of Cr.P.C. For the foregoing reasons the impugned order in Crl.M.P.1929 of 2000 cannot be legitimately set aside.
8. In the result, Crl.P.5150 of 2001 is allowed and the impugned order in Crl.M.P.1495 of 2000 is hereby set aside. Crl.P.5151 of 2001 is dismissed up holding the order passed in Crl.M.P.1929 of 2000.

Print Page

No comments:

Post a Comment

Post a Comment