The very usage of the words such as 'any court', 'at any
stage', or 'of any enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells out that this
section is expressed in the widest possible terms and do
not limit the discretion of the Court in any way. However,
the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies
of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of 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."
Identical question was raised in the case of Rajendra
Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. There the Court has
said that Section 311 of the Cr.P.C. will not be allowed to be used for
filling up the lacuna left by the prosecution. The Court has held that
lacuna in prosecution must be understood as inherent weakness or a
latent wedge in the matrix of 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 an no party in the trial can be foreclosed from
correcting errors. When the proper evidences are not brought on
record due to inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. It will be relevant to quote
paragraph nos. 7 & 8 of the judgment which reads as follows:-
"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 by saying that the Court
could not 'fill the lacuna in the prosecution case'. A
lacuna in 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 proved. A corollary of any
such latches or mistakes during the conducting of a case
cannot be understood as the lacuna which a court cannot
fill up.
8. 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 over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can before-closed
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.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.3048 of 2016
Dina Nath Chamar
V
The State of Bihar.
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
Date: 07-03-2017
Heard learned counsel for the petitioners and counsel for
the State as also counsel for the opposite party no.2.
The court below vide order dated 1.12.2015 allowed the
petition of the prosecution under Section 311 Cr.P.C. to mark license
of the gun as exhibit filed by Gajadhar Singh and also to examine
Gajadhar Singh in this case in the interest of justice and repelled the
argument of the respondent that the license of Gajadhar Singh which
was known to the prosecution and the prosecution has not brought at
the appropriate stage but at the belated stage is noting but a filing up
the lacuna in the prosecution and so much so that Section 311 Cr.P.C.
does not envisage that the document will be exhibited as a piece of
evidence at the stage of final argument.
In the present case, in the First Information Report, an
allegation has been made by one Ram Vinay Singh, son of Ram
Briksh Singh that on 8.6.1989 at 5 PM while he was standing at the
Fodder Machine, about 6 to 6.15 PM, an alarm was raised that some
dacoits have entered into the house of Ram Chandra Singh whereupon
he started rushing to his house, found that instead of the house of Ram
Chandra Singh, the unlawful persons entered into his house, some
persons were standing outside the house whereupon he had gone to
roof of the house and started brick bating against the dacoits, the
dacoits after taking gun from his house, fled away towards northern
side, raising slogan of Naxalwadi Jindabad Jindabad. He identified
some persons, namely, Dina Nath Chama, Shivjatan Sao, Bhola Sao,
Bhola Sao, Gama Sao who were holding gun and also identified
Vishnu Deo Varai, Kameshwar Mochi, Narain Paswan wearing Lungi
and Ganji and took away double barrel gun of his brother Gajadhar
Singh bearing licence no. 8102391.
After investigation, the police submitted charge-sheet
against the petitioners and put them on trial. The trial commenced
after commitment, the case was registered as Sessions Trial No. 23 of,
2014. The charge was framed, the petitioners are facing trial.
Altogether 7 P.Ws. have been examined. On 16.8.2014, the court gave
last chance to the prosecution to examine the rest witness and on
10.9.2014, the evidence of the prosecution witness was closed. On
18.11.2014, the court recorded the statement of accused under Section
313 Cr.P.C. and the defence was given time to examine the witness.
The defence did not examine any witness in support of the case. It
also appears that in between 5.10.2015 to 8.10.2015, the prosecution
argued the case, from 28.10.2015 to 29.10.2015 the argument on
behalf of the defence was led and the same was closed on 4.11.2015.
5.11.2015 was fixed for reply of the prosecution. On 6.11.2015, the
prosecution made argument and the case was posted for further
argument of prosecution on 10.11.2015.
On 10.11.2015, the prosecution filed an application under
Section 311 Cr.P.C. making a prayer that Gajadhar Singh be
examined as a prosecution witness along with the license of the gun.
The defence raised objection. It has been raised that the said license
was all through with Gajadhar Singh. Sufficient opportunities were
given to the State to bring all prosecution witness and document in
support of the case but, the same was not brought by the prosecution
nor the license was exhibited. When the license is of the year 1982,
after lapse of so much time, the same cannot be allowed to be used by
prosecution to prove the case against the petitioners. Learned counsel
has raised a point that the license was all through along with Gajadhar
Singh and, after such a delay, the prosecution cannot be allowed either
to examine Gajadhar Singh or to exhibit the document in support of
his case, raised a plea that the prosecution cannot, by way of
examining the witness, fill up the lacuna left by the prosecution which
is not permissible in the eye of law. Third point was raised that
Section 311 Cr.P.C. does not envisage for the exhibition of document
in exercise of power under Section 311 Cr.P.C.
To decide the present case, it will be apt to consider the
parameter and contour of Section 311 of the Code of Criminal
Procedure which empowers the trial court to summon any material
witness for examine or re-examine the witness who has already been
examined in the court. It will be relevant to quote Section 311 of the
Cr.P.C. which reads as follows:-
"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 reexamine
any person already examined; and the
Court shall 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."
Section 311 of the Cr.P.C. has two parts. The first part
grants discretion to the criminal court to enable it at any stage on
enquiry, trial or other proceeding under the Code to act on three ways
namely, (i) to summon any person as a witness, or (ii) to examine any
person in attendance, though not summoned as a witness, or (iii) to
recall and re-examine any person already examined.
The second part of section which is mandatory in nature
imposes an obligation to the court to summon or examine or recall
and re-examine any such person if it appears to be essential for the
just decision of the case.
In the first part, the word "may" has been used and in the
second part the word "shall" has been mentioned which itself indicates
that the first part gives discretion to the court in a just and proper case
applying the rationality may call upon the witnesses to examine him
in the trial and the second part which qualifies with the word "shall"
denotes that the same is no longer a discretion when the court arrives
to a finding that it is essential for examination or re-examination of
witnesses for the just decision of the case. In the second, the word has
been used "any court", "at any stage", or "of any enquiry, trial or other
proceedings", "any person" and "any such person" clearly indicates
that the section is couched with widest possible terms and does not
circumscribe the discretion of the court in any manner. While
exercising the power, Section 311 of the Cr.P.C. gives widest
discretion to the court with the corresponding caution that the said
power should be invoked for expediency of justice, requires exercise
judicially with the circumspection in terms of provision of the Code.
The discretion does not stand in the second part but it compels the
court to take any of the aforesaid two steps if the fresh evidence to be
obtained is found to be essential for just decision of the case. It will be
relevant to examine some judgments of the Hon'ble Supreme Court
and this Court for the purpose of better elucidation.
While exercising Section 311 of the Cr.P.C., the Court
should not be oblivious that the prosecution should not be allowed to
fill up the lacuna left by the prosecution. Section 311 is meant to
advance justice and to suppress mischief, and arrive to a right
conclusion. 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 has
delineated the power and function of the trial court in the matter of
exercising the power under Section 311 of the Cr.P.C. It will be
relevant to quote paragraph nos. 7, 8 and 9 of the aforesaid judgment
which reads as follows:-
"7. Section 540 was found in Chapter XLVI of the old Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 7
Code of 1898 under the heading 'Miscellaneous'. But the
present corresponding Section 311 of the new Code is
found among other Sections in Chapter XXIV under the
heading 'General Provisions as to Enquiries and Trials'.
Section 311 is an almost verbatim reproduction of
Section 540 of the old Code except for the insertion of the
words 'to be' before the word "essential" occurring in the
old Section. This section is manifestly 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.
8. 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.
9. The very usage of the words such as 'any court', 'at any
stage', or 'of any enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells out that this
section is expressed in the widest possible terms and do
not limit the discretion of the Court in any way. However,
the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies
of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of 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."
Identical question was raised in the case of Rajendra
Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. There the Court has
said that Section 311 of the Cr.P.C. will not be allowed to be used for
filling up the lacuna left by the prosecution. The Court has held that
lacuna in prosecution must be understood as inherent weakness or a
latent wedge in the matrix of 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 an no party in the trial can be foreclosed from
correcting errors. When the proper evidences are not brought on
record due to inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. It will be relevant to quote
paragraph nos. 7 & 8 of the judgment which reads as follows:-
"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 by saying that the Court
could not 'fill the lacuna in the prosecution case'. A
lacuna in 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 proved. A corollary of any
such latches or mistakes during the conducting of a case
cannot be understood as the lacuna which a court cannot
fill up.
8. 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 over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can before-closed
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.
In the case of Zahira Habibullah Sheikh (5) & Anr. Vs. State of
Gujarat & Ors. reported in (2006) 3 SCC 374, the Hon'ble Supreme Court
has considered the object and scope of exercising the power under
Section 311 of the Cr.P.C. The Court has said that the object Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 10
underlying Section 311 Cr.P.C. is that there may not be failure of
justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The section is
not limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the court to summon a witness
under the section merely because the evidence supports the case of the
prosecution and not that of the accused. The provision of Section 311
of the Cr.P.C. is a general section which applies to all proceedings,
enquiries and trials under the Code and empowers the trial court to
issue summon to any witness at any stage of such proceedings, trial or
enquiry. The fair trial for a criminal offence consists not only in
technical observance of the frame, and forms of law, but also in
recognition and just application of its principles in substance, to find
out the truth and prevent miscarriage of justice. It will be relevant to
quote paragraph nos. 27, 28 and 30 of the aforesaid judgment which
reads as follows:-
"27. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative
factor is whether it is essential to the just decision of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 11
case. The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the
powers of the Court to summon a witness under the
Section merely because the evidence supports the case
for the prosecution and not that of the accused. The
section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any witness at
any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is "at
any stage of inquiry or trial or other proceeding under
this Code". It is, however, to be borne in mind that
whereas the section confers a very wide power on the
Court on summoning witnesses, the discretion conferred
is to be exercised judiciously, as the wider the power the
greater is the necessity for application of judicial mind.
28. As indicated above, the Section is wholly
discretionary. The second part of it imposes upon the
Magistrate an obligation: it is, that the Court shall
summon and examine all persons whose evidence
appears to be essential to the just decision of the case. It
is a cardinal rule in the law of evidence that the best
available evidence should be brought before the Court.
Sections 60, 64 and 91 of the Indian Evidence Act, 1872
(in short, 'Evidence Act') are based on this rule. 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
side. This must be left to the parties. But in weighing the
evidence, the Court can take note of the fact that the best
available evidence has not been given, and can draw an Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 12
adverse inference. The Court will often have to depend
on intercepted allegations made by the parties, or on
inconclusive inference from facts elicited in the evidence.
In such cases, the Court has to act under the second part
of the section. Sometimes the examination of witnesses as
directed by the Court may result in what is thought to be
"filling of loopholes". That is purely a subsidiary factor
and cannot be taken into account. Whether the new
evidence is essential or not must of course depend on the
facts of each case, and has to be determined by the
Presiding Judge.
30. Right from the inception of the judicial system it has
been accepted that discovery, vindication and
establishment of truth are the main purposes underlying
existence of Courts of justice. The operative principles
for a fair trial permeate the common law in both civil and
criminal contexts. Application of these principles involves
a delicate judicial balancing of competing interests in a
criminal trial, the interests of the accused and the public
and to a great extent that of the victim have to be
weighed not losing sight of the public interest involved in
the prosecution of persons who commit offences."
The principle of Section 311 came for consideration in
the case of State of Haryana Vs. Ram Mehar & Ors. reported in (2016) 8
SCC 762 has exposited the framework of Section 311. While
examining the formulation, contour and terms of the said section, a
markable ethos has been provided as a guideline of the basic thought
of the criminal trial. The Court has said in the following manner:-Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 13
"Every criminal trial is a voyage of discovery in which
truth is the quest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover the
truth and to advance the cause of justice. For that purpose
he is expressly invested by Section 165 of the Evidence
Act with the right to put questions to witnesses. Indeed
the right given to a Judge is so wide that he may, ask any
question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or
irrelevant. Fundamentally, a fair and impartial trial has a
sacrosanct purpose. It has a demonstrable object that the
accused should not be prejudiced. A fair trial is required
to be conducted in such a manner which would totally
ostracise injustice, prejudice, dishonesty and
favouritism.”
The Court has considered all the earlier judgments on the
principle of fairness of trial and has put an emphasis that the trial
court should find out the realty of the truth by allowing the witnesses
to disclose the real materials involved in the commission of the crime.
Our judicial system should behave in such a manner to earn reputation
of faith of the people and the society, that they would get justice in the
criminal adjudicatory process. It will be relevant to quote paragraph Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 14
nos. 28, 30, 31, 32, 33, 34 and 35 of the aforesaid judgment which
reads as follows:-
"28. In the said authority the Court referred to the earlier
pronouncements in Rameshwar Dayal and others v. State
of U.P. [(1978) 2 SCC 518], State of W. B. v. Tulsidas
Mundhra [(1963) 2 SCJ 204], Jamatraj Kewalji Govani v.
State of Maharashtra [AIR 1968 SC 178] and proceeded to
opine that:-
“The principle of law that emerges from the views
expressed by this Court in the above decisions is
that the criminal court has ample power to summon
any person as a witness or recall and re-examine
any such person even if the evidence on both sides is
closed and the jurisdiction of the court must
obviously be dictated by exigency of the situation,
and fair play and good sense appear to be the only
safe guides and that only the requirements of justice
command the examination of any person which
would depend on the facts and circumstances of
each case.”
[Emphasis supplied]
It is important to note here in the said case, it was also
observed that:-
“Though Section 540 (Section 311 of the new Code)
is, in the widest possible terms and calls for no
limitation, either with regard to the stage at which
the powers of the court should be exercised, or with
regard to the manner in which they should be
exercised, that power is circumscribed by the
principle that underlines Section 540, namely,
evidence to be obtained should appear to the court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 15
essential to a just decision of the case by getting at
the truth by all lawful means. Therefore, it should be
borne in mind that the aid of the section should be
invoked only with the object of discovering relevant
facts or obtaining proper proof of such facts for a
just decision of the case and it must be used
judicially and not capriciously or arbitrarily
because any improper or capricious exercise of the
power may lead to undesirable results. 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”.
[emphasis supplied]
29. In Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110
occasion arose to appreciate the principles stated in Mohanlal
Shamji Soni (supra). The two-Judge Bench took note of the
observations made in the said case which was to the effect that
while exercising the power Under Section 311 of Code of Criminal
Procedure, the court shall not use such power "for filling up the
lacuna left by the prosecution". Explaining the said observation
Thomas, J. speaking for the Court observed:
"8. 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 Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 16
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.
(Emphasis added)
30. After so stating the two-Judge bench referred to the
exigencies of the situation and the ample power of the
court as has been laid in Mohanlal Shamji Soni (supra) [
1991 Supp (1) SCC 271] and further referred to the
authority in Jamatraj Kewalji Govani (supra) [AIR 1968
SC 178] and opined thus:-
“12. We cannot therefore accept the contention of
the appellant as a legal proposition that the court
cannot exercise power of resummoning any witness
if once that power was exercised, nor can the power
be whittled down merely on the ground that the
prosecution discovered laches only when the
defence highlighted them during final arguments.
The power of the court is plenary to summon or
even recall any witness at any stage of the case if
the court considers it necessary for a just decision.
The steps which the trial court permitted in this case
for resummoning certain witnesses cannot therefore
be spurned down or frowned at.”
[Emphasis supplied]
31. The aforesaid decision has to be appropriately Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 17
understood. It reiterates the principle stated in Mohanlal
Shamji Soni’s case. It has only explained the sphere of
lacuna by elaborating the same which has taken place due
to oversight and non-production of material evidence due
to inadvertence. It is significant to note that it has also
reiterated the principle that such evidence is necessary for
a just decision by the Court.
32. In U.T. of Dadra & Nagar Haveli and another v.
Fatehsinh Mohansinh Chauhan [(2006) 7 SCC 529], the
Court was dealing with an order passed by the High court
whereby it had allowed the revision and set aside the order
passed by the learned trial judge who had exercised the
power under Section 311 CrPC to summon certain
witnesses. The Court referred to the earlier authorities and
ruled that it is well settled that the exercise of power under
Section 311 CrPC 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, as it is 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 to arrive at a just decision of the case cannot be
dubbed as “filling in a lacuna in the 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. Be it stated, in the said case the
court came to held that summoning of the witnesses was
necessary for just and fair decision of the case and
accordingly it allowed the appeal and set aside the order
passed by the High court.
33. In Rajaram Prasad Yadav v. State of Bihar and Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 18
another [(2013) 14 SCC 461], the Court after referring to
Section 311 CrPC and Section 138 of the Evidence Act
observed that Section 311 CrPC vest widest powers in the
court when it comes to the issue of summoning a witness or
to recall or re-examine any witness already examined.
Analysing further with regard to “trial”, “proceeding”,
“person already examined”, the Court ruled that
invocation of Section 311 CrPC and its application in a
particular case can be ordered by the court, only by
bearing in mind the object and purport of the said
provision, namely, for achieving a just decision of the case.
The Court observed that the power vested under the said
provision is made available to any court at any stage in
any inquiry or trial or other proceeding initiated under the
Code for the purpose of summoning any person as a
witness or for examining any person in attendance, even
though not summoned as witness or to recall or re-examine
any person already examined. Insofar as recalling and reexamination
of any person already examined is concerned,
the court must necessarily consider and ensure that such
recall and re-examination of any person, appears in the
view of the court to be essential for the just decision of the
case. The learned Judges further ruled that the paramount
requirement is just decision and for that purpose the
essentiality of a person to be recalled and re-examined has
to be ascertained. It was also stated that while such a
widest power is invested with the court, exercise of such
power should be made judicially and also with extreme
care and caution.
34. The Court referred to the earlier decisions and culled
out certain principles which are to be kept in mind while
exercising power under Section 311 CrPC. We think it Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 19
seemly to reproduce some of them: (Rajaram Prasad case,
SCC pp. 473-74, para 17)
“17.2. The exercise of the widest discretionary
power under Section 311 CrPC should ensure that
the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts,
as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court
to be essential to the just decision of the case, it is
the power of the court to summon and examine or
recall and re-examine any such person.
17.4. The exercise of power under Section 311
CrPC should be resorted to only with the object of
finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct
decision of the case.
17.5. The exercise of the said power cannot be
dubbed as filling in a lacuna in a 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.
17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in every
respect essential to examine such a witness or to
recall him for further examination in order to arrive
at a just decision of the case.
* * *
17.10. Exigency of the situation, fair play and good
sense should be the safeguard, while exercising the
discretion. The court should bear in mind that no Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 20
party in a trial can be foreclosed from correcting
errors and that 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.
17.11. The court should be conscious of the position
that after all the trial is basically for the prisoners
and the court should afford an opportunity to them
in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than
protecting the prosecution against possible
prejudice at the cost of the accused. The court
should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
* * *
17.14. The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid reasons
and the same must be exercised with care, caution
and circumspection. The court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of
fair and proper opportunities to the persons
concerned, must be ensured being a constitutional
goal, as well as a human right.”
[Emphasis supplied]
35. Recently in Shiv Kumar Yadav (supra) [(2016) 2 SCC
402], the Court reproduced the principles culled out in
Rajaram Prasad Yadav’s case [(2013) 14 SCC 461 and Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 21
thereafter referred to the authority in Hoffman Andreas
(supra) [(2000) 10 SCC 430] wherein it has been laid
down that:-
“The counsel who was engaged for defending the
appellant had cross-examined the witnesses but he
could not complete the trial because of his death.
When the new counsel took up the matter he would
certainly be under the disadvantage that he could
not ascertain from the erstwhile counsel as to the
scheme of the defence strategy which the
predeceased advocate had in mind or as to why he
had not put further questions on certain aspects. In
such circumstances, if the new counsel thought to
have the material witnesses further examined the
Court could adopt latitude and a liberal view in the
interest of justice, particularly when the Court has
unbridled powers in the matter as enshrined in
Section 311 of the Code. After all the trial is
basically for the prisoners and courts should afford
the opportunity to them in the fairest manner
possible”.
The Court in Shiv Kumar Yadav (supra) case explained
the said authority by opining thus:-
“15. …..While advancement of justice remains the
prime object of law, it cannot be understood that
recall can be allowed for the asking or reasons
related to mere convenience. It has normally to be
presumed that the counsel conducting a case is
competent particularly when a counsel is appointed
by choice of a litigant. Taken to its logical end, the
principle that a retrial must follow on every change
of a counsel, can have serious consequences on Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 22
conduct of trials and the criminal justice system.
The witnesses cannot be expected to face the
hardship of appearing in court repeatedly,
particularly in sensitive cases such as the present
one. It can result in undue hardship for the victims,
especially so, of heinous crimes, if they are required
to repeatedly appear in court to face crossexamination.”
We respectfully agree with the aforesaid exposition of
law."
This Court in the case of Rajendra Pd. Singh alias Khiru
Singh & Ors. Vs. Ramuchit Singh alias Chhotan Singh reported in 1984
BBCJ 657 has held that Section 311 of the Cr.P.C., cannot used for
filling up the lacuna in the prosecution case. Power under Section 311
can only be exercised if the Court while hearing the case deems fit
and proper to examine some witness in the ends of justice and to
appreciate the prosecution case and to clarify any doubt in his mind.
This power cannot be exercised for the aid prosecutor. This Court has
opined the view that in order to outdo the arguments of the defence,
the Court seeks to examine a material witness. It is relevant to quote
paragraph nos. 2 & 3 of the aforesaid judgment which reads as
follows:-
"2. It is well settled that the jurisdiction conferred under
section 311 of the Code of Criminal Procedure cannot
be used for filling up the lacuna in the prosecution
case in view of the decision of the Supreme Court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 23
reported in 1980 Criminal Law Reports, 84. Learned
counsel for the petitioners has also cited other
decisions of the different High Courts. The power
under section 311 of the Code of Criminal Procedure
can only be exercised if the Court while hearing the
case deems fit and proper to examine some witness in
the ends of justice and to appreciate the prosecution
case and to clarify any doubt in his mind. This power
cannot be exercised for the prosecutor.
3. It is submitted on behalf of the petitioners that oral
arguments have already been made, written arguments
filed and the date for judgment was also fixed, but on
the date fixed for delivering the judgment, the
impugned order has been passed. This clearly shows
that in order to outdo the arguments of the defence, the
Court seeks to examine a material witness. This is
impermissible."
The extent of exercise of power of Section 311 of the
Cr.P.C. again came for consideration before this Court in the case of
Keshav Choudhary & Ors. Vs. The State of Bihar reported in 2000(3) PLJR
220, there the Court held that the cardinal principle in law of evidence
that the best available evidence would be brought before the Court to
prove the fact or the point in issue with a liberty to the prosecution
and defence to establish their respective cases by adducing the best
evidence but the Court has not been empowered to compel either the
prosecution or the defence to examine of witness or witnesses on their
side. It is the duty of the Court not only to do justice but also ensure Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 24
that the justice is being done. The duty of the Court is to find out the
truth and render a just decision. The salutary provision of Section 311
are enacted wherefrom and whereunder any court by exercising its
discretionary jurisdiction 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
reexamine any person in attendance. That is the second part of
Section, does not allow for any discretion by its binds and compels the
Court to take any of the aforesaid two steps if the fresh evidence to be
obtained is essential to just decision of the case. The Court has
concluded that Section 311 is meant for the just decision of the case.
For just decision in the case, it means just decision for both on the
point of view of the prosecution as well as for the accused. Section
311 of the Cr.P.C. does not give a long rope to prosecution to make it
a tool for harassment of the accused to be used or abused in any
manner that they like. It has also been held that 311 of the Cr.P.C.
cannot be exercised to fill up the lacuna left by the prosecution. In this
case, only formal witnesses were examined, even after lapse of long
time, the prosecution has not brought the material witness and later on
the application of Section 311 Cr.P.C. was filed to examine the
prosecution witness after waking up from the deep slumber and the
Court has held that by and large the Sessions Judge should not have Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 25
recalled the earlier order closing the case of prosecution exercising the
power under Section 311 of the Code. It is relevant to quote paragraph
no.6 of the aforesaid judgment which reads as follows:-
"6. It, thus, becomes clear that this provision under
Section 311 of the Code has been made for the just
decision of the case. A just decision in a case will
mean just decision both from the point of view of the
prosecution as well as the accused. Section 311 of
the Code does not give a long rope to the
prosecution to make it a tool for the harassment of
the accused to be used or abused in any manner
that they like. In the present case it, however,
appears that the charge sheet in this case was
submitted on 15-6-1993 and thereafter 24-6-1993,
25-6-1993, 26-6-1993 and 28-6-1993 were the
dates fixed for the examination of the witnesses. In
spite of so many dates not a single witness turned
up. By the orders dated 3-2-1994, 11-1-1995 and 7-
3-1995 bailable as also non-bailable warrants of
arrest were issued against the witnesses. The
warrants of arrest were issued through the
Superintendent of Police, Samastipur but in spite of
these attempts made by the Court not a single
witness turned up for his examination for more than
two years. From the impugned order it appears that
lastly only a formal witness was examined to prove
the FIR (Ext. 1). When in spite of non-bailable
warrants of arrest not, a single witness could be
produced before the learned trial Court it was left
with no alternative but to close the case of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 26
prosecution on 31-5-1995 and it proceeded to
record the statements of the accused persons under
Section 313 of the Code. Under the aforesaid
circumstances it is clear that the action of the
prosecution as also of the police machinery can be
said to be highly negligent and the prosecution
singularly failed to produce any witness in spite of
the non-bailable warrants of arrest issued against
them. Under the aforesaid circumstances I do not
think that the provision of Section 311 of the Code
could be attracted. It is not one of those cases in
which some important witnesses on the question of
fact could not be examined for any reason
whatsoever. In the present case except for a formal
witnesses not a single witness could be examined. It
is only after the examination of the accused under
Section 313 of the Code that the prosecution has
come forward with a prayer to examine prosecution
witnesses after waking up from the deep slumber. It
is well settled that the jurisdiction conferred under
Section 311 of the Code cannot be used for filling
up a lacuna in the prosecution case. The power
under Section 311 of the Code can only be
exercised if the Court while hearing the case deems
fit and proper to examine some witnesses for the
ends of justice, to appreciate the prosecution case
and to clarify any doubt in his mind. This power
cannot be exercised with the aid of the prosecutor
this view finds support from the case of Rajendra
Prasad Singh alias Khiru Singh v. Ramuchit Singh
alias Chhotak Singh 1984 BBCJ 657."Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 27
In the case of Vindyawashini Prasad @ Vindhyawashini Pd.
Verma Vs. Shashi Kant Verma and Anr. reported in 2002 (1) PLJR 236, the
Court held that there is no mention in the provision for the production
of document. As a matter of fact, the Section does not at all refer to
any document or documentary evidence. Under this circumstance, can
it be said that the Court can order production of document in exercise
of power conferred by this Section. It is obvious that this could not be
done as there is no provision in this case for recalling of any of the
document whatsoever. The entire Section is only for examination of a
person as an witness not production of witness but held that in a
situation when the Court feels that examination of witness is essential
to the just decision of the case, it is the duty of the Court to summon
and examine or recall or re-examine any such person and the Court
has set aside the order of the court below giving direction for
production of the document in exercise of power under Section 311 of
the Cr.P.C. It is relevant to quote relevant portion of the aforesaid
judgment which reads as follows:-
"16. ------ Perusal of this section will clearly show that
under its provisions the law authorises the Court to
examine any witness or any person in attendance or
to recall and e-examination any person already
examined. There is no mention of production of any
document in this section. As a matter of fact this
section does not at all refer to any document or Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 28
documentary evidence. Under this circumstance can
it be said that a Court can order the production of a
document in exercise of the powers conferred by
this section? it is obvious that this could not be done
inasmuch as there is no provision in this section for
calling for any document whatsoever. The whole
section mentions only the examination of any
person as a witness and not of production of any
document.
20. Also reliance has been placed on the case of Raj Deo
Sharma v. State of Bihar (A.I.R. 1899 S.C. 3524). It
appears that in this case direction for speedy trial of
criminal case was given by Hon'ble Supreme Court in
the main judgment in the case of Rajdeo Sharma v.
State of Bihar (A.I.R. 1998 SC 3281 : 1998 (3) PLJR
(SC) 57). In view of the directions given by the Hon'ble
Supreme Court for the speedy trial the prosecution
case was closed. However, subsequently it was found
that the evidence of some other witnesses was
essential. A petition was filed before the Hon'ble
Supreme Court for clarification and modification of
the directions given in the case of Raj Deo Sharma
(supra) (A.I.R. 1998 SC 3281 : 1998 (3) PLJR (SC)
57). The Hon'ble Supreme Court observed that the
directions given in the said case do not curtail the
power of the Court under Section 311 of the Code. It
was further held that if evidence of any witness
appears to the Court to be essential to the just decision
of the case it is the duty of the Court to summon and
examine or recall and re-examine any such person. In
this decision also the question before the Court was to
examine further witnesses under Section 311 of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 29
Code and not the production and proving of any
document. Hence this decision is also of no help. In
Paragraph 9 of the judgment it has been observed as
follows:
"We make it clear that if evidence of any
witness appears to the Court to be essential to
the just decision of the case it is the duty of the
Court to summon and examine or recall and reexamine
any such person."
21. In this connection a reference may also be
made to a judgment delivered by me in the case
of Keshab Choudhary v. State of Bihar [2000
(2) B.B.C.J. 276 : 2000 (3) PLJR 220]. Here in
this case also I had examined the scope of
Section 311 of the Code and it was held that
under the facts and circumstances of the said
case the provisions of Section 311 of the Code
were not attracted.
22. From the detailed discussions made above it
becomes clear that the learned trial Court had
exceeded his power under Section 311 of the
Code by calling for certain documents from the
parties and the registration office since under
the provisions of Section 311 of the Code
documents could not be called, produced or
prove in a trial. In my judgment in Cr. Revision
No. 684/96 also I had taken the same view. I
had held in Paragraph 5 of that judgment that
Section 311 of the Code does not empower the
Court to call for any documentary evidence."Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 30
In the case of Nesar Ahmed @ Nasser @ Ors. Vs. The State of
Bihar & Anr. reported in 2007 (1) PLJR 216, the Court has held that
Section 311 of the Cr.P.C. consists two parts firstly giving a discretion
to the Court to examine the witness at any stage and secondly the
mandatory portion which compels the Court to examine a witness if
his evidence appears to be essential to the just decision of the Court.
Though the discretion given to the Court is very wide, the very wide
power casts duty to exercise the power with circumspection and
judicially but the Court has held that Section 311 Cr.P.C. does not
give power to direct production of documentary evidence. It is
relevant to quote paragraph no.4 and 5 of the aforesaid judgment
which reads as follows:-
"4. Section 311 of Cr.P.C. consists of two parts i.e. (i)
giving a discretion to the court to examine the
witness at any stage, and (ii) the mandatory
portion which compels the court to examine a
witness if his evidence appears to be essential to
the just decision of the court. Though the discretion
given to the court is very wide the very width
requires a corresponding caution --that the
discretionary powers should be invoked, as the
exigencies of justice require, and exercised
judicially with circumspection and consistently
with the provisions of the Code. Therefore, this
power has to be exercised in exceptional case or
extraordinary situation. The second part of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 31
section does not allow any discretion but obligates
and binds the court to take necessary steps if the
fresh evidence to be obtained is essential to the just
decision of the case.
5. What calls for pointed attention is the language of
Section 311 of Cr.P.C. What the Section says is
that the court may 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 summon and examine or recall and reexamine
any such person if his evidence appears to
it to be essential to the just decision of the case
(underlining is mine for emphasis). Therefore,
what Section 311 of Cr.P.C. talks of is the evidence
of the witnesses and evidence would mean material
evidence and does not include documentary
evidence."
Again in the case of Gangu Ram & Ors. Vs. State of Bihar
reported in 2009 (2) PLJR 481 the Court has reiterated the same issue
and held that it cannot be used to fill up the lacuna. It would be
relevant to quote paragraph no.4 of the aforesaid judgment which
reads as follows:-
"3. As observed by the Supreme Court in the case of
Jahira Habibulla vs. State of Gujarat, reported in
2004(4) SCC 158 it was held that the power under
Section 311 Cr.P.C. is exercised and the evidence
is examined neither to help the prosecution nor the
defence and the object of the section is to enable Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 32
the Court to arrive at the truth, irrespective of the
fact that the prosecution or the defence has failed
to adduce some evidence which is necessary for a
just and proper disposal of the case and to uphold
the truth and if the prosecutor is remiss in
someway the court can control the proceedings
effectively so that the ultimate object of truth is
arrived at. It is also well established that the power
under Section 311 Cr.P.C. can be exercised at any
stage of the proceeding provided the examination
of such person is essential for just decision of the
case. However, the same cannot be used to fill up
the lacuna or loopholes in either prosecution or
defence case."
In the present case, the point has been raised by the
petitioner that an application has been filed at a very belated stage
after closure of the evidence including argument of the defence.
Second ground has been taken that the trial court cannot exercise the
power to fill up lacuna left by the prosecution including the court does
not hold power to give direction for allowing the prosecution to
produce the license of the gun when the same was all through
available with the prosecution and they have not produced the same
when the plea of absence of licence was taken by the defence, then an
application has been filed which is impermissible in law. Let us
examine the case in the light of principle enunciated in the judgments
explained herein above. Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 33
The very emphasis has been given by the petitioner that
the argument on behalf of the defence was finally closed on
5.11.2015. The prosecution made part argument on 6.11.2015. The
cased was placed for final argument on 10.11.2015 but on that day,
the application under Section 311 of the Cr.P.C. was filed. The thrust
of the submission of the petitioner is that the alleged offence has been
committed on 8.6.1989, the prosecution had sufficient opportunity
rather the document was very much available with Sri Gajadhar
Singh. It is not the case he had gone outside or was not available but
the prosecution deliberately neither examined Gajadhar Singh nor the
license of gun was produced. So the application was filed with an
intention to fill up the lacuna. In view of the judgment as cited
hereinabove, Section 311 Cr.P.C. is in two parts and second part is
mandatorily required that when the court feels for the end justice the
evidence of witness is required to be recorded, in such circumstances,
he is mandatorily obliged to take evidence of such witness. In the
present case, the order which has been passed indicates that the court
below in his impugned order has specifically mentioned that though
much time had already elapsed but the document is an important one
for just decision of the case and owner of the aforesaid licence is
essential for just decision of the case. So this order has been passed in
exercise of second part of Section 311 of the Cr.P.C. and this Court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 34
and the Hon'ble Apex Court has held that in a case when the Court
feels for the examination of the witness is for end of justice, he or she
can be examined at any stage of the trial. So this argument of the
petitioner cannot be accepted.
In the present case, the second question has been raised
that Section 311 Cr.P.C. does not envisage for calling the document
for being exhibited but only talks about the examination of the witness
and he has placed reliance on the two judgments this Court as has
been explained hereinabove which is not required to be repeated again
but in view of the judgment of the Hon'ble Apex Court in the case of
Ram Mehar (supra) wherein in the case of Rajendra Prasad (supra),
the Hon'ble Apex Court has held that if proper evidence was not
adduced or relevant material was not brought on record due to
inadvertence, the court should be magnanimous in permitting such
mistake to be rectified. This part of excerpts of judgment of the
Hon'ble Apex Court itself indicates that Section 311 Cr.P.C. includes
power for examining the witnesses as well as admitting the relevant
material which were not brought on record. This view is also
supported by Section 91 of the Cr.P.C. which empowers the court to
give direction for production of any document or other thing which is
necessary or desirable for the purpose of investigation, enquiry or
other proceeding under the Code or before such court or officer. So if Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 35
Section 311 of the Cr.P.C. is read with Section 91 of the Cr.P.C. in
that circumstances, it cannot be said that the trial court is bereft of
power to call the witness as well as material document for its
admission during course of trial. Section 311 of the Cr.P.C. is couched
in widest term which has been interpreted by the Hon'ble Apex Court
that at any stage this power can be used for the ends of justice. In such
circumstances, when the court below has already directed for
examination of the licence holder including production of the gun
license, in such circumstances, the interference with the order of the
court below will not sub serve the justice.
In that view of the matter, this Court does not find any
merit in this case. Accordingly, the present application is dismissed
with a direction to the court below to conclude the trial within a
period of three months from the date of receipt/production of a copy
of this order. If the witness is produced along with the record, the
other side will have a liberty to cross-examine the witness.
Rishi/-
(Shivaji Pandey, J)
AFR/NAFR NAFR
CAV DATE 04.02.2017
Uploading Date08.03.2017
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stage', or 'of any enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells out that this
section is expressed in the widest possible terms and do
not limit the discretion of the Court in any way. However,
the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies
of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of 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."
Identical question was raised in the case of Rajendra
Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. There the Court has
said that Section 311 of the Cr.P.C. will not be allowed to be used for
filling up the lacuna left by the prosecution. The Court has held that
lacuna in prosecution must be understood as inherent weakness or a
latent wedge in the matrix of 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 an no party in the trial can be foreclosed from
correcting errors. When the proper evidences are not brought on
record due to inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. It will be relevant to quote
paragraph nos. 7 & 8 of the judgment which reads as follows:-
"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 by saying that the Court
could not 'fill the lacuna in the prosecution case'. A
lacuna in 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 proved. A corollary of any
such latches or mistakes during the conducting of a case
cannot be understood as the lacuna which a court cannot
fill up.
8. 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 over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can before-closed
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.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.3048 of 2016
Dina Nath Chamar
V
The State of Bihar.
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
Date: 07-03-2017
Heard learned counsel for the petitioners and counsel for
the State as also counsel for the opposite party no.2.
The court below vide order dated 1.12.2015 allowed the
petition of the prosecution under Section 311 Cr.P.C. to mark license
of the gun as exhibit filed by Gajadhar Singh and also to examine
Gajadhar Singh in this case in the interest of justice and repelled the
argument of the respondent that the license of Gajadhar Singh which
was known to the prosecution and the prosecution has not brought at
the appropriate stage but at the belated stage is noting but a filing up
the lacuna in the prosecution and so much so that Section 311 Cr.P.C.
does not envisage that the document will be exhibited as a piece of
evidence at the stage of final argument.
In the present case, in the First Information Report, an
allegation has been made by one Ram Vinay Singh, son of Ram
Briksh Singh that on 8.6.1989 at 5 PM while he was standing at the
Fodder Machine, about 6 to 6.15 PM, an alarm was raised that some
dacoits have entered into the house of Ram Chandra Singh whereupon
he started rushing to his house, found that instead of the house of Ram
Chandra Singh, the unlawful persons entered into his house, some
persons were standing outside the house whereupon he had gone to
roof of the house and started brick bating against the dacoits, the
dacoits after taking gun from his house, fled away towards northern
side, raising slogan of Naxalwadi Jindabad Jindabad. He identified
some persons, namely, Dina Nath Chama, Shivjatan Sao, Bhola Sao,
Bhola Sao, Gama Sao who were holding gun and also identified
Vishnu Deo Varai, Kameshwar Mochi, Narain Paswan wearing Lungi
and Ganji and took away double barrel gun of his brother Gajadhar
Singh bearing licence no. 8102391.
After investigation, the police submitted charge-sheet
against the petitioners and put them on trial. The trial commenced
after commitment, the case was registered as Sessions Trial No. 23 of,
2014. The charge was framed, the petitioners are facing trial.
Altogether 7 P.Ws. have been examined. On 16.8.2014, the court gave
last chance to the prosecution to examine the rest witness and on
10.9.2014, the evidence of the prosecution witness was closed. On
18.11.2014, the court recorded the statement of accused under Section
313 Cr.P.C. and the defence was given time to examine the witness.
The defence did not examine any witness in support of the case. It
also appears that in between 5.10.2015 to 8.10.2015, the prosecution
argued the case, from 28.10.2015 to 29.10.2015 the argument on
behalf of the defence was led and the same was closed on 4.11.2015.
5.11.2015 was fixed for reply of the prosecution. On 6.11.2015, the
prosecution made argument and the case was posted for further
argument of prosecution on 10.11.2015.
On 10.11.2015, the prosecution filed an application under
Section 311 Cr.P.C. making a prayer that Gajadhar Singh be
examined as a prosecution witness along with the license of the gun.
The defence raised objection. It has been raised that the said license
was all through with Gajadhar Singh. Sufficient opportunities were
given to the State to bring all prosecution witness and document in
support of the case but, the same was not brought by the prosecution
nor the license was exhibited. When the license is of the year 1982,
after lapse of so much time, the same cannot be allowed to be used by
prosecution to prove the case against the petitioners. Learned counsel
has raised a point that the license was all through along with Gajadhar
Singh and, after such a delay, the prosecution cannot be allowed either
to examine Gajadhar Singh or to exhibit the document in support of
his case, raised a plea that the prosecution cannot, by way of
examining the witness, fill up the lacuna left by the prosecution which
is not permissible in the eye of law. Third point was raised that
Section 311 Cr.P.C. does not envisage for the exhibition of document
in exercise of power under Section 311 Cr.P.C.
To decide the present case, it will be apt to consider the
parameter and contour of Section 311 of the Code of Criminal
Procedure which empowers the trial court to summon any material
witness for examine or re-examine the witness who has already been
examined in the court. It will be relevant to quote Section 311 of the
Cr.P.C. which reads as follows:-
"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 reexamine
any person already examined; and the
Court shall 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."
Section 311 of the Cr.P.C. has two parts. The first part
grants discretion to the criminal court to enable it at any stage on
enquiry, trial or other proceeding under the Code to act on three ways
namely, (i) to summon any person as a witness, or (ii) to examine any
person in attendance, though not summoned as a witness, or (iii) to
recall and re-examine any person already examined.
The second part of section which is mandatory in nature
imposes an obligation to the court to summon or examine or recall
and re-examine any such person if it appears to be essential for the
just decision of the case.
In the first part, the word "may" has been used and in the
second part the word "shall" has been mentioned which itself indicates
that the first part gives discretion to the court in a just and proper case
applying the rationality may call upon the witnesses to examine him
in the trial and the second part which qualifies with the word "shall"
denotes that the same is no longer a discretion when the court arrives
to a finding that it is essential for examination or re-examination of
witnesses for the just decision of the case. In the second, the word has
been used "any court", "at any stage", or "of any enquiry, trial or other
proceedings", "any person" and "any such person" clearly indicates
that the section is couched with widest possible terms and does not
circumscribe the discretion of the court in any manner. While
exercising the power, Section 311 of the Cr.P.C. gives widest
discretion to the court with the corresponding caution that the said
power should be invoked for expediency of justice, requires exercise
judicially with the circumspection in terms of provision of the Code.
The discretion does not stand in the second part but it compels the
court to take any of the aforesaid two steps if the fresh evidence to be
obtained is found to be essential for just decision of the case. It will be
relevant to examine some judgments of the Hon'ble Supreme Court
and this Court for the purpose of better elucidation.
While exercising Section 311 of the Cr.P.C., the Court
should not be oblivious that the prosecution should not be allowed to
fill up the lacuna left by the prosecution. Section 311 is meant to
advance justice and to suppress mischief, and arrive to a right
conclusion. 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 has
delineated the power and function of the trial court in the matter of
exercising the power under Section 311 of the Cr.P.C. It will be
relevant to quote paragraph nos. 7, 8 and 9 of the aforesaid judgment
which reads as follows:-
"7. Section 540 was found in Chapter XLVI of the old Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 7
Code of 1898 under the heading 'Miscellaneous'. But the
present corresponding Section 311 of the new Code is
found among other Sections in Chapter XXIV under the
heading 'General Provisions as to Enquiries and Trials'.
Section 311 is an almost verbatim reproduction of
Section 540 of the old Code except for the insertion of the
words 'to be' before the word "essential" occurring in the
old Section. This section is manifestly 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.
8. 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.
9. The very usage of the words such as 'any court', 'at any
stage', or 'of any enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells out that this
section is expressed in the widest possible terms and do
not limit the discretion of the Court in any way. However,
the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies
of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of 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."
Identical question was raised in the case of Rajendra
Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. There the Court has
said that Section 311 of the Cr.P.C. will not be allowed to be used for
filling up the lacuna left by the prosecution. The Court has held that
lacuna in prosecution must be understood as inherent weakness or a
latent wedge in the matrix of 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 an no party in the trial can be foreclosed from
correcting errors. When the proper evidences are not brought on
record due to inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified. It will be relevant to quote
paragraph nos. 7 & 8 of the judgment which reads as follows:-
"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 by saying that the Court
could not 'fill the lacuna in the prosecution case'. A
lacuna in 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 proved. A corollary of any
such latches or mistakes during the conducting of a case
cannot be understood as the lacuna which a court cannot
fill up.
8. 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 over sight in
the management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can before-closed
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.
In the case of Zahira Habibullah Sheikh (5) & Anr. Vs. State of
Gujarat & Ors. reported in (2006) 3 SCC 374, the Hon'ble Supreme Court
has considered the object and scope of exercising the power under
Section 311 of the Cr.P.C. The Court has said that the object Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 10
underlying Section 311 Cr.P.C. is that there may not be failure of
justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The section is
not limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the court to summon a witness
under the section merely because the evidence supports the case of the
prosecution and not that of the accused. The provision of Section 311
of the Cr.P.C. is a general section which applies to all proceedings,
enquiries and trials under the Code and empowers the trial court to
issue summon to any witness at any stage of such proceedings, trial or
enquiry. The fair trial for a criminal offence consists not only in
technical observance of the frame, and forms of law, but also in
recognition and just application of its principles in substance, to find
out the truth and prevent miscarriage of justice. It will be relevant to
quote paragraph nos. 27, 28 and 30 of the aforesaid judgment which
reads as follows:-
"27. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative
factor is whether it is essential to the just decision of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 11
case. The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the
powers of the Court to summon a witness under the
Section merely because the evidence supports the case
for the prosecution and not that of the accused. The
section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any witness at
any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is "at
any stage of inquiry or trial or other proceeding under
this Code". It is, however, to be borne in mind that
whereas the section confers a very wide power on the
Court on summoning witnesses, the discretion conferred
is to be exercised judiciously, as the wider the power the
greater is the necessity for application of judicial mind.
28. As indicated above, the Section is wholly
discretionary. The second part of it imposes upon the
Magistrate an obligation: it is, that the Court shall
summon and examine all persons whose evidence
appears to be essential to the just decision of the case. It
is a cardinal rule in the law of evidence that the best
available evidence should be brought before the Court.
Sections 60, 64 and 91 of the Indian Evidence Act, 1872
(in short, 'Evidence Act') are based on this rule. 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
side. This must be left to the parties. But in weighing the
evidence, the Court can take note of the fact that the best
available evidence has not been given, and can draw an Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 12
adverse inference. The Court will often have to depend
on intercepted allegations made by the parties, or on
inconclusive inference from facts elicited in the evidence.
In such cases, the Court has to act under the second part
of the section. Sometimes the examination of witnesses as
directed by the Court may result in what is thought to be
"filling of loopholes". That is purely a subsidiary factor
and cannot be taken into account. Whether the new
evidence is essential or not must of course depend on the
facts of each case, and has to be determined by the
Presiding Judge.
30. Right from the inception of the judicial system it has
been accepted that discovery, vindication and
establishment of truth are the main purposes underlying
existence of Courts of justice. The operative principles
for a fair trial permeate the common law in both civil and
criminal contexts. Application of these principles involves
a delicate judicial balancing of competing interests in a
criminal trial, the interests of the accused and the public
and to a great extent that of the victim have to be
weighed not losing sight of the public interest involved in
the prosecution of persons who commit offences."
The principle of Section 311 came for consideration in
the case of State of Haryana Vs. Ram Mehar & Ors. reported in (2016) 8
SCC 762 has exposited the framework of Section 311. While
examining the formulation, contour and terms of the said section, a
markable ethos has been provided as a guideline of the basic thought
of the criminal trial. The Court has said in the following manner:-Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 13
"Every criminal trial is a voyage of discovery in which
truth is the quest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover the
truth and to advance the cause of justice. For that purpose
he is expressly invested by Section 165 of the Evidence
Act with the right to put questions to witnesses. Indeed
the right given to a Judge is so wide that he may, ask any
question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or
irrelevant. Fundamentally, a fair and impartial trial has a
sacrosanct purpose. It has a demonstrable object that the
accused should not be prejudiced. A fair trial is required
to be conducted in such a manner which would totally
ostracise injustice, prejudice, dishonesty and
favouritism.”
The Court has considered all the earlier judgments on the
principle of fairness of trial and has put an emphasis that the trial
court should find out the realty of the truth by allowing the witnesses
to disclose the real materials involved in the commission of the crime.
Our judicial system should behave in such a manner to earn reputation
of faith of the people and the society, that they would get justice in the
criminal adjudicatory process. It will be relevant to quote paragraph Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 14
nos. 28, 30, 31, 32, 33, 34 and 35 of the aforesaid judgment which
reads as follows:-
"28. In the said authority the Court referred to the earlier
pronouncements in Rameshwar Dayal and others v. State
of U.P. [(1978) 2 SCC 518], State of W. B. v. Tulsidas
Mundhra [(1963) 2 SCJ 204], Jamatraj Kewalji Govani v.
State of Maharashtra [AIR 1968 SC 178] and proceeded to
opine that:-
“The principle of law that emerges from the views
expressed by this Court in the above decisions is
that the criminal court has ample power to summon
any person as a witness or recall and re-examine
any such person even if the evidence on both sides is
closed and the jurisdiction of the court must
obviously be dictated by exigency of the situation,
and fair play and good sense appear to be the only
safe guides and that only the requirements of justice
command the examination of any person which
would depend on the facts and circumstances of
each case.”
[Emphasis supplied]
It is important to note here in the said case, it was also
observed that:-
“Though Section 540 (Section 311 of the new Code)
is, in the widest possible terms and calls for no
limitation, either with regard to the stage at which
the powers of the court should be exercised, or with
regard to the manner in which they should be
exercised, that power is circumscribed by the
principle that underlines Section 540, namely,
evidence to be obtained should appear to the court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 15
essential to a just decision of the case by getting at
the truth by all lawful means. Therefore, it should be
borne in mind that the aid of the section should be
invoked only with the object of discovering relevant
facts or obtaining proper proof of such facts for a
just decision of the case and it must be used
judicially and not capriciously or arbitrarily
because any improper or capricious exercise of the
power may lead to undesirable results. 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”.
[emphasis supplied]
29. In Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110
occasion arose to appreciate the principles stated in Mohanlal
Shamji Soni (supra). The two-Judge Bench took note of the
observations made in the said case which was to the effect that
while exercising the power Under Section 311 of Code of Criminal
Procedure, the court shall not use such power "for filling up the
lacuna left by the prosecution". Explaining the said observation
Thomas, J. speaking for the Court observed:
"8. 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 Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 16
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.
(Emphasis added)
30. After so stating the two-Judge bench referred to the
exigencies of the situation and the ample power of the
court as has been laid in Mohanlal Shamji Soni (supra) [
1991 Supp (1) SCC 271] and further referred to the
authority in Jamatraj Kewalji Govani (supra) [AIR 1968
SC 178] and opined thus:-
“12. We cannot therefore accept the contention of
the appellant as a legal proposition that the court
cannot exercise power of resummoning any witness
if once that power was exercised, nor can the power
be whittled down merely on the ground that the
prosecution discovered laches only when the
defence highlighted them during final arguments.
The power of the court is plenary to summon or
even recall any witness at any stage of the case if
the court considers it necessary for a just decision.
The steps which the trial court permitted in this case
for resummoning certain witnesses cannot therefore
be spurned down or frowned at.”
[Emphasis supplied]
31. The aforesaid decision has to be appropriately Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 17
understood. It reiterates the principle stated in Mohanlal
Shamji Soni’s case. It has only explained the sphere of
lacuna by elaborating the same which has taken place due
to oversight and non-production of material evidence due
to inadvertence. It is significant to note that it has also
reiterated the principle that such evidence is necessary for
a just decision by the Court.
32. In U.T. of Dadra & Nagar Haveli and another v.
Fatehsinh Mohansinh Chauhan [(2006) 7 SCC 529], the
Court was dealing with an order passed by the High court
whereby it had allowed the revision and set aside the order
passed by the learned trial judge who had exercised the
power under Section 311 CrPC to summon certain
witnesses. The Court referred to the earlier authorities and
ruled that it is well settled that the exercise of power under
Section 311 CrPC 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, as it is 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 to arrive at a just decision of the case cannot be
dubbed as “filling in a lacuna in the 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. Be it stated, in the said case the
court came to held that summoning of the witnesses was
necessary for just and fair decision of the case and
accordingly it allowed the appeal and set aside the order
passed by the High court.
33. In Rajaram Prasad Yadav v. State of Bihar and Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 18
another [(2013) 14 SCC 461], the Court after referring to
Section 311 CrPC and Section 138 of the Evidence Act
observed that Section 311 CrPC vest widest powers in the
court when it comes to the issue of summoning a witness or
to recall or re-examine any witness already examined.
Analysing further with regard to “trial”, “proceeding”,
“person already examined”, the Court ruled that
invocation of Section 311 CrPC and its application in a
particular case can be ordered by the court, only by
bearing in mind the object and purport of the said
provision, namely, for achieving a just decision of the case.
The Court observed that the power vested under the said
provision is made available to any court at any stage in
any inquiry or trial or other proceeding initiated under the
Code for the purpose of summoning any person as a
witness or for examining any person in attendance, even
though not summoned as witness or to recall or re-examine
any person already examined. Insofar as recalling and reexamination
of any person already examined is concerned,
the court must necessarily consider and ensure that such
recall and re-examination of any person, appears in the
view of the court to be essential for the just decision of the
case. The learned Judges further ruled that the paramount
requirement is just decision and for that purpose the
essentiality of a person to be recalled and re-examined has
to be ascertained. It was also stated that while such a
widest power is invested with the court, exercise of such
power should be made judicially and also with extreme
care and caution.
34. The Court referred to the earlier decisions and culled
out certain principles which are to be kept in mind while
exercising power under Section 311 CrPC. We think it Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 19
seemly to reproduce some of them: (Rajaram Prasad case,
SCC pp. 473-74, para 17)
“17.2. The exercise of the widest discretionary
power under Section 311 CrPC should ensure that
the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts,
as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court
to be essential to the just decision of the case, it is
the power of the court to summon and examine or
recall and re-examine any such person.
17.4. The exercise of power under Section 311
CrPC should be resorted to only with the object of
finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct
decision of the case.
17.5. The exercise of the said power cannot be
dubbed as filling in a lacuna in a 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.
17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in every
respect essential to examine such a witness or to
recall him for further examination in order to arrive
at a just decision of the case.
* * *
17.10. Exigency of the situation, fair play and good
sense should be the safeguard, while exercising the
discretion. The court should bear in mind that no Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 20
party in a trial can be foreclosed from correcting
errors and that 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.
17.11. The court should be conscious of the position
that after all the trial is basically for the prisoners
and the court should afford an opportunity to them
in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than
protecting the prosecution against possible
prejudice at the cost of the accused. The court
should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
* * *
17.14. The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid reasons
and the same must be exercised with care, caution
and circumspection. The court should bear in mind
that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of
fair and proper opportunities to the persons
concerned, must be ensured being a constitutional
goal, as well as a human right.”
[Emphasis supplied]
35. Recently in Shiv Kumar Yadav (supra) [(2016) 2 SCC
402], the Court reproduced the principles culled out in
Rajaram Prasad Yadav’s case [(2013) 14 SCC 461 and Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 21
thereafter referred to the authority in Hoffman Andreas
(supra) [(2000) 10 SCC 430] wherein it has been laid
down that:-
“The counsel who was engaged for defending the
appellant had cross-examined the witnesses but he
could not complete the trial because of his death.
When the new counsel took up the matter he would
certainly be under the disadvantage that he could
not ascertain from the erstwhile counsel as to the
scheme of the defence strategy which the
predeceased advocate had in mind or as to why he
had not put further questions on certain aspects. In
such circumstances, if the new counsel thought to
have the material witnesses further examined the
Court could adopt latitude and a liberal view in the
interest of justice, particularly when the Court has
unbridled powers in the matter as enshrined in
Section 311 of the Code. After all the trial is
basically for the prisoners and courts should afford
the opportunity to them in the fairest manner
possible”.
The Court in Shiv Kumar Yadav (supra) case explained
the said authority by opining thus:-
“15. …..While advancement of justice remains the
prime object of law, it cannot be understood that
recall can be allowed for the asking or reasons
related to mere convenience. It has normally to be
presumed that the counsel conducting a case is
competent particularly when a counsel is appointed
by choice of a litigant. Taken to its logical end, the
principle that a retrial must follow on every change
of a counsel, can have serious consequences on Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 22
conduct of trials and the criminal justice system.
The witnesses cannot be expected to face the
hardship of appearing in court repeatedly,
particularly in sensitive cases such as the present
one. It can result in undue hardship for the victims,
especially so, of heinous crimes, if they are required
to repeatedly appear in court to face crossexamination.”
We respectfully agree with the aforesaid exposition of
law."
This Court in the case of Rajendra Pd. Singh alias Khiru
Singh & Ors. Vs. Ramuchit Singh alias Chhotan Singh reported in 1984
BBCJ 657 has held that Section 311 of the Cr.P.C., cannot used for
filling up the lacuna in the prosecution case. Power under Section 311
can only be exercised if the Court while hearing the case deems fit
and proper to examine some witness in the ends of justice and to
appreciate the prosecution case and to clarify any doubt in his mind.
This power cannot be exercised for the aid prosecutor. This Court has
opined the view that in order to outdo the arguments of the defence,
the Court seeks to examine a material witness. It is relevant to quote
paragraph nos. 2 & 3 of the aforesaid judgment which reads as
follows:-
"2. It is well settled that the jurisdiction conferred under
section 311 of the Code of Criminal Procedure cannot
be used for filling up the lacuna in the prosecution
case in view of the decision of the Supreme Court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 23
reported in 1980 Criminal Law Reports, 84. Learned
counsel for the petitioners has also cited other
decisions of the different High Courts. The power
under section 311 of the Code of Criminal Procedure
can only be exercised if the Court while hearing the
case deems fit and proper to examine some witness in
the ends of justice and to appreciate the prosecution
case and to clarify any doubt in his mind. This power
cannot be exercised for the prosecutor.
3. It is submitted on behalf of the petitioners that oral
arguments have already been made, written arguments
filed and the date for judgment was also fixed, but on
the date fixed for delivering the judgment, the
impugned order has been passed. This clearly shows
that in order to outdo the arguments of the defence, the
Court seeks to examine a material witness. This is
impermissible."
The extent of exercise of power of Section 311 of the
Cr.P.C. again came for consideration before this Court in the case of
Keshav Choudhary & Ors. Vs. The State of Bihar reported in 2000(3) PLJR
220, there the Court held that the cardinal principle in law of evidence
that the best available evidence would be brought before the Court to
prove the fact or the point in issue with a liberty to the prosecution
and defence to establish their respective cases by adducing the best
evidence but the Court has not been empowered to compel either the
prosecution or the defence to examine of witness or witnesses on their
side. It is the duty of the Court not only to do justice but also ensure Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 24
that the justice is being done. The duty of the Court is to find out the
truth and render a just decision. The salutary provision of Section 311
are enacted wherefrom and whereunder any court by exercising its
discretionary jurisdiction 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
reexamine any person in attendance. That is the second part of
Section, does not allow for any discretion by its binds and compels the
Court to take any of the aforesaid two steps if the fresh evidence to be
obtained is essential to just decision of the case. The Court has
concluded that Section 311 is meant for the just decision of the case.
For just decision in the case, it means just decision for both on the
point of view of the prosecution as well as for the accused. Section
311 of the Cr.P.C. does not give a long rope to prosecution to make it
a tool for harassment of the accused to be used or abused in any
manner that they like. It has also been held that 311 of the Cr.P.C.
cannot be exercised to fill up the lacuna left by the prosecution. In this
case, only formal witnesses were examined, even after lapse of long
time, the prosecution has not brought the material witness and later on
the application of Section 311 Cr.P.C. was filed to examine the
prosecution witness after waking up from the deep slumber and the
Court has held that by and large the Sessions Judge should not have Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 25
recalled the earlier order closing the case of prosecution exercising the
power under Section 311 of the Code. It is relevant to quote paragraph
no.6 of the aforesaid judgment which reads as follows:-
"6. It, thus, becomes clear that this provision under
Section 311 of the Code has been made for the just
decision of the case. A just decision in a case will
mean just decision both from the point of view of the
prosecution as well as the accused. Section 311 of
the Code does not give a long rope to the
prosecution to make it a tool for the harassment of
the accused to be used or abused in any manner
that they like. In the present case it, however,
appears that the charge sheet in this case was
submitted on 15-6-1993 and thereafter 24-6-1993,
25-6-1993, 26-6-1993 and 28-6-1993 were the
dates fixed for the examination of the witnesses. In
spite of so many dates not a single witness turned
up. By the orders dated 3-2-1994, 11-1-1995 and 7-
3-1995 bailable as also non-bailable warrants of
arrest were issued against the witnesses. The
warrants of arrest were issued through the
Superintendent of Police, Samastipur but in spite of
these attempts made by the Court not a single
witness turned up for his examination for more than
two years. From the impugned order it appears that
lastly only a formal witness was examined to prove
the FIR (Ext. 1). When in spite of non-bailable
warrants of arrest not, a single witness could be
produced before the learned trial Court it was left
with no alternative but to close the case of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 26
prosecution on 31-5-1995 and it proceeded to
record the statements of the accused persons under
Section 313 of the Code. Under the aforesaid
circumstances it is clear that the action of the
prosecution as also of the police machinery can be
said to be highly negligent and the prosecution
singularly failed to produce any witness in spite of
the non-bailable warrants of arrest issued against
them. Under the aforesaid circumstances I do not
think that the provision of Section 311 of the Code
could be attracted. It is not one of those cases in
which some important witnesses on the question of
fact could not be examined for any reason
whatsoever. In the present case except for a formal
witnesses not a single witness could be examined. It
is only after the examination of the accused under
Section 313 of the Code that the prosecution has
come forward with a prayer to examine prosecution
witnesses after waking up from the deep slumber. It
is well settled that the jurisdiction conferred under
Section 311 of the Code cannot be used for filling
up a lacuna in the prosecution case. The power
under Section 311 of the Code can only be
exercised if the Court while hearing the case deems
fit and proper to examine some witnesses for the
ends of justice, to appreciate the prosecution case
and to clarify any doubt in his mind. This power
cannot be exercised with the aid of the prosecutor
this view finds support from the case of Rajendra
Prasad Singh alias Khiru Singh v. Ramuchit Singh
alias Chhotak Singh 1984 BBCJ 657."Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 27
In the case of Vindyawashini Prasad @ Vindhyawashini Pd.
Verma Vs. Shashi Kant Verma and Anr. reported in 2002 (1) PLJR 236, the
Court held that there is no mention in the provision for the production
of document. As a matter of fact, the Section does not at all refer to
any document or documentary evidence. Under this circumstance, can
it be said that the Court can order production of document in exercise
of power conferred by this Section. It is obvious that this could not be
done as there is no provision in this case for recalling of any of the
document whatsoever. The entire Section is only for examination of a
person as an witness not production of witness but held that in a
situation when the Court feels that examination of witness is essential
to the just decision of the case, it is the duty of the Court to summon
and examine or recall or re-examine any such person and the Court
has set aside the order of the court below giving direction for
production of the document in exercise of power under Section 311 of
the Cr.P.C. It is relevant to quote relevant portion of the aforesaid
judgment which reads as follows:-
"16. ------ Perusal of this section will clearly show that
under its provisions the law authorises the Court to
examine any witness or any person in attendance or
to recall and e-examination any person already
examined. There is no mention of production of any
document in this section. As a matter of fact this
section does not at all refer to any document or Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 28
documentary evidence. Under this circumstance can
it be said that a Court can order the production of a
document in exercise of the powers conferred by
this section? it is obvious that this could not be done
inasmuch as there is no provision in this section for
calling for any document whatsoever. The whole
section mentions only the examination of any
person as a witness and not of production of any
document.
20. Also reliance has been placed on the case of Raj Deo
Sharma v. State of Bihar (A.I.R. 1899 S.C. 3524). It
appears that in this case direction for speedy trial of
criminal case was given by Hon'ble Supreme Court in
the main judgment in the case of Rajdeo Sharma v.
State of Bihar (A.I.R. 1998 SC 3281 : 1998 (3) PLJR
(SC) 57). In view of the directions given by the Hon'ble
Supreme Court for the speedy trial the prosecution
case was closed. However, subsequently it was found
that the evidence of some other witnesses was
essential. A petition was filed before the Hon'ble
Supreme Court for clarification and modification of
the directions given in the case of Raj Deo Sharma
(supra) (A.I.R. 1998 SC 3281 : 1998 (3) PLJR (SC)
57). The Hon'ble Supreme Court observed that the
directions given in the said case do not curtail the
power of the Court under Section 311 of the Code. It
was further held that if evidence of any witness
appears to the Court to be essential to the just decision
of the case it is the duty of the Court to summon and
examine or recall and re-examine any such person. In
this decision also the question before the Court was to
examine further witnesses under Section 311 of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 29
Code and not the production and proving of any
document. Hence this decision is also of no help. In
Paragraph 9 of the judgment it has been observed as
follows:
"We make it clear that if evidence of any
witness appears to the Court to be essential to
the just decision of the case it is the duty of the
Court to summon and examine or recall and reexamine
any such person."
21. In this connection a reference may also be
made to a judgment delivered by me in the case
of Keshab Choudhary v. State of Bihar [2000
(2) B.B.C.J. 276 : 2000 (3) PLJR 220]. Here in
this case also I had examined the scope of
Section 311 of the Code and it was held that
under the facts and circumstances of the said
case the provisions of Section 311 of the Code
were not attracted.
22. From the detailed discussions made above it
becomes clear that the learned trial Court had
exceeded his power under Section 311 of the
Code by calling for certain documents from the
parties and the registration office since under
the provisions of Section 311 of the Code
documents could not be called, produced or
prove in a trial. In my judgment in Cr. Revision
No. 684/96 also I had taken the same view. I
had held in Paragraph 5 of that judgment that
Section 311 of the Code does not empower the
Court to call for any documentary evidence."Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 30
In the case of Nesar Ahmed @ Nasser @ Ors. Vs. The State of
Bihar & Anr. reported in 2007 (1) PLJR 216, the Court has held that
Section 311 of the Cr.P.C. consists two parts firstly giving a discretion
to the Court to examine the witness at any stage and secondly the
mandatory portion which compels the Court to examine a witness if
his evidence appears to be essential to the just decision of the Court.
Though the discretion given to the Court is very wide, the very wide
power casts duty to exercise the power with circumspection and
judicially but the Court has held that Section 311 Cr.P.C. does not
give power to direct production of documentary evidence. It is
relevant to quote paragraph no.4 and 5 of the aforesaid judgment
which reads as follows:-
"4. Section 311 of Cr.P.C. consists of two parts i.e. (i)
giving a discretion to the court to examine the
witness at any stage, and (ii) the mandatory
portion which compels the court to examine a
witness if his evidence appears to be essential to
the just decision of the court. Though the discretion
given to the court is very wide the very width
requires a corresponding caution --that the
discretionary powers should be invoked, as the
exigencies of justice require, and exercised
judicially with circumspection and consistently
with the provisions of the Code. Therefore, this
power has to be exercised in exceptional case or
extraordinary situation. The second part of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 31
section does not allow any discretion but obligates
and binds the court to take necessary steps if the
fresh evidence to be obtained is essential to the just
decision of the case.
5. What calls for pointed attention is the language of
Section 311 of Cr.P.C. What the Section says is
that the court may 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 summon and examine or recall and reexamine
any such person if his evidence appears to
it to be essential to the just decision of the case
(underlining is mine for emphasis). Therefore,
what Section 311 of Cr.P.C. talks of is the evidence
of the witnesses and evidence would mean material
evidence and does not include documentary
evidence."
Again in the case of Gangu Ram & Ors. Vs. State of Bihar
reported in 2009 (2) PLJR 481 the Court has reiterated the same issue
and held that it cannot be used to fill up the lacuna. It would be
relevant to quote paragraph no.4 of the aforesaid judgment which
reads as follows:-
"3. As observed by the Supreme Court in the case of
Jahira Habibulla vs. State of Gujarat, reported in
2004(4) SCC 158 it was held that the power under
Section 311 Cr.P.C. is exercised and the evidence
is examined neither to help the prosecution nor the
defence and the object of the section is to enable Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 32
the Court to arrive at the truth, irrespective of the
fact that the prosecution or the defence has failed
to adduce some evidence which is necessary for a
just and proper disposal of the case and to uphold
the truth and if the prosecutor is remiss in
someway the court can control the proceedings
effectively so that the ultimate object of truth is
arrived at. It is also well established that the power
under Section 311 Cr.P.C. can be exercised at any
stage of the proceeding provided the examination
of such person is essential for just decision of the
case. However, the same cannot be used to fill up
the lacuna or loopholes in either prosecution or
defence case."
In the present case, the point has been raised by the
petitioner that an application has been filed at a very belated stage
after closure of the evidence including argument of the defence.
Second ground has been taken that the trial court cannot exercise the
power to fill up lacuna left by the prosecution including the court does
not hold power to give direction for allowing the prosecution to
produce the license of the gun when the same was all through
available with the prosecution and they have not produced the same
when the plea of absence of licence was taken by the defence, then an
application has been filed which is impermissible in law. Let us
examine the case in the light of principle enunciated in the judgments
explained herein above. Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 33
The very emphasis has been given by the petitioner that
the argument on behalf of the defence was finally closed on
5.11.2015. The prosecution made part argument on 6.11.2015. The
cased was placed for final argument on 10.11.2015 but on that day,
the application under Section 311 of the Cr.P.C. was filed. The thrust
of the submission of the petitioner is that the alleged offence has been
committed on 8.6.1989, the prosecution had sufficient opportunity
rather the document was very much available with Sri Gajadhar
Singh. It is not the case he had gone outside or was not available but
the prosecution deliberately neither examined Gajadhar Singh nor the
license of gun was produced. So the application was filed with an
intention to fill up the lacuna. In view of the judgment as cited
hereinabove, Section 311 Cr.P.C. is in two parts and second part is
mandatorily required that when the court feels for the end justice the
evidence of witness is required to be recorded, in such circumstances,
he is mandatorily obliged to take evidence of such witness. In the
present case, the order which has been passed indicates that the court
below in his impugned order has specifically mentioned that though
much time had already elapsed but the document is an important one
for just decision of the case and owner of the aforesaid licence is
essential for just decision of the case. So this order has been passed in
exercise of second part of Section 311 of the Cr.P.C. and this Court Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 34
and the Hon'ble Apex Court has held that in a case when the Court
feels for the examination of the witness is for end of justice, he or she
can be examined at any stage of the trial. So this argument of the
petitioner cannot be accepted.
In the present case, the second question has been raised
that Section 311 Cr.P.C. does not envisage for calling the document
for being exhibited but only talks about the examination of the witness
and he has placed reliance on the two judgments this Court as has
been explained hereinabove which is not required to be repeated again
but in view of the judgment of the Hon'ble Apex Court in the case of
Ram Mehar (supra) wherein in the case of Rajendra Prasad (supra),
the Hon'ble Apex Court has held that if proper evidence was not
adduced or relevant material was not brought on record due to
inadvertence, the court should be magnanimous in permitting such
mistake to be rectified. This part of excerpts of judgment of the
Hon'ble Apex Court itself indicates that Section 311 Cr.P.C. includes
power for examining the witnesses as well as admitting the relevant
material which were not brought on record. This view is also
supported by Section 91 of the Cr.P.C. which empowers the court to
give direction for production of any document or other thing which is
necessary or desirable for the purpose of investigation, enquiry or
other proceeding under the Code or before such court or officer. So if Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 35
Section 311 of the Cr.P.C. is read with Section 91 of the Cr.P.C. in
that circumstances, it cannot be said that the trial court is bereft of
power to call the witness as well as material document for its
admission during course of trial. Section 311 of the Cr.P.C. is couched
in widest term which has been interpreted by the Hon'ble Apex Court
that at any stage this power can be used for the ends of justice. In such
circumstances, when the court below has already directed for
examination of the licence holder including production of the gun
license, in such circumstances, the interference with the order of the
court below will not sub serve the justice.
In that view of the matter, this Court does not find any
merit in this case. Accordingly, the present application is dismissed
with a direction to the court below to conclude the trial within a
period of three months from the date of receipt/production of a copy
of this order. If the witness is produced along with the record, the
other side will have a liberty to cross-examine the witness.
Rishi/-
(Shivaji Pandey, J)
AFR/NAFR NAFR
CAV DATE 04.02.2017
Uploading Date08.03.2017
Transmission
Date
08.03.2017
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