Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. 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[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court 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.”
“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.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“It is a common experience in
criminal courts that defence counsel
would raise objections whenever courts
exercise powers under Section 311 of
the Code or under Section 165 of the
Evidence Act, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
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
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
Lacuna in the prosecution must be
understood as the inherent weakness or
a latent wedge in the matrix of the
prosecution case. The advantage of it
should normally go to the accused in
the trial of the case, but an over sight
in the management of the prosecution
cannot be treated as irreparable lacuna.
No party in a trial can be foreclosed
from correcting errors. If proper
evidence was not adduced or a relevant
material was not brought on record due
to any inadvertence, the court should
be magnanimous in permitting such
mistakes 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.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
CRL. MISC. (PET.) (CRLMP) NO. 3661 of 2015
Sant Shri Asharamji Bapu V/s. State of Rajasthan
DATED : November 3, 2016
MR. JUSTICE P.K. LOHRA
