TMI Blog2006 (8) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the deceased Bapjibhai Bhoya and caused injuries to some others. The respondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was assigned the role of instigation -'Maro Maro, Pakdo Pakdo'. After usual investigation charge sheet was submitted against all the nine accused and the case was committed to the Court of Sessions. In his statement under Section 313 Cr.P.C. which was recorded after close of the prosecution evidence, the respondent took a plea of alibi and submitted that he is a prominent member of a political party and at the time of the incident, he was present in the chamber of Shri S.P. Marwah, Collector, Dadra Nagar Haveli, Silvassa, as a meeting had been called there. The respondent examined two witnesses, viz., DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar, Executive and Sector Magistrate, Dadra, in support of his plea of alibi that he was present in the chamber of Shri S.P. Marwah. The Special Public Prosecutor, thereafter, moved an application, purporting to be one under Section 311 Cr.P.C., praying that Shri S.P. Marwah, the then Collector of Dadra Nagar Haveli, Silvassa and currently posted as Director, Jal Nigam Board, New Delhi, may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.8.2004 passed by the learned Sessions Judge. The High Court held that the respondent had taken a plea of alibi as far back as in the year 1996 when he had moved an application for anticipatory bail and also when he opposed the application moved by the prosecution for giving him on police remand. In the order dated 6.5.1996 passed by the learned Sessions Judge granting bail to the respondent, it was observed that the investigating agency had not considered it appropriate to place the relevant material or to rebut the plea of alibi taken by the respondent. The High Court accordingly held that the grant of the application moved by the Public Prosecutor for summoning the Collector, Dadra Nagar Haveli, Silvassa, under Section 311 Cr.P.C. would inevitably result in permitting the prosecution to fill in the lacuna in the prosecution case. It has been further observed that the respondent had already examined two witnesses and if the trial Court was of the opinion that the said evidence was insufficient, a logical conclusion could be drawn for accepting or not accepting the defence version and merely because the defence has chosen not to examine one more witness, who should also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed order on 6.5.1996, wherein it was observed that the investigating officer should have thwarted out the alibi taken by the accused at this preliminary stage by recording the statements of concerning officers and it is the inaction or the casual approach of the police which has disentitled the police to further custody . Shri Jaitley has also submitted that in the order dated 7.5.1996 passed by the incharge Sessions Judge granting bail to the respondent, it was specifically observed that the investigating officer had not even bothered to record the statement of those high ranking officers to show that the contention of the accused was palpably false though the accused even prior to his arrest or at the time of filing the application for anticipatory bail had made a clear assertion about his being present with those officers at the time of the incident and the police had not bothered to verify this vital fact by recording the statement of the concerned officers. Learned Counsel has also submitted that the entire cross-examination of the prosecution witnesses had been directed on said line and a categorical suggestion had been given to the witnesses that at the time of alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a verbatim reproduction of Section 540 of Code of Criminal Procedure, 1898 (for short 'old Code'). Section 311 Cr.P.C. reads as under: 311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case. The scope and content of Section 540 of the old Code was considered in several decisions rendered by the High Courts. A Division Bench of Allahabad High Court in Ram Jeet and Ors. v. The State AIR1958All439 examined the provisions of the section in considerable detail. In this case after the entire evidence had been recorded and the arguments had been heard and a date for pronouncement of judgment had been fixed, the learned Sessions Judge felt that for the just decision of the case the evidence of certain persons who had not been examined hitherto was essential. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil Court merely discretionary authority) are not entitled to level the type of criticism just referred to. 9. In State of West Bengal v. Tulsidas Mundhra, this Court considered the amplitude of Section 540 of the old Code. The question which arose for consideration in this case was whether in proceedings under Section 207A of the old Code (commitment proceedings before a Magistrate in a case instituted on a police report and which was exclusively triable by the Court of Sessions) the provision of Section 540 would be applicable. It was held: Section 540 confers on criminal Courts very wide powers. It is no doubt for the court to consider whether the power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by S. 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. 10. In Jamatraj Kewalji Govani v. State of Maharashtra 1968CriLJ231 after analysis of the provision of Section it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case. Rajendra Prasad v. Narcotic Cell 1999CriLJ3529 is a decision where the contention that the prosecution should not be permitted to fill in lacuna was examined having regard to the peculiar facts where the exercise of power under Section 311 Cr.P.C. second time was challenged and, therefore, it is necessary to notice the facts of the case in brief. The accused along with some other persons was facing trial for offences under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were reexa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. Chhaganlal Daga v. M. Sanjay Shaw (2003)11SCC486 where permission granted by the Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna. 12. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent has led evidence on the said point by examining DW.1 and DW.2. The evidence of the then Collector, Dadra and Nagar Haveli might as well support the defence taken by the respondent. In such circumstances if the learned Sessions Judge was of the opinion that in order to find out the truth, the evidence of the Collector was necessary, no exception can be taken to the course adopted by him. It was for the learned Sessions Judge to decide whether for just and fair decision of the case, the evidence of the Collector is necessary or not and he having come to a conclusion that evidence of the Collector was necessary for just and fair decision of the case, the order passed by him could not have been set aside by the High Court on the ground that it would amount to filling in lacuna in the prosecution case. We are clearly of the opinion that in the facts and circumstances of the case, the examination of the then Collector, Dadra and Nagar Haveli cannot be termed as filling in lacuna in the prosecution case. The learned Sessions Judge rightly observed that the evidence of the Collector will not cause any prejudice to the respondent as he had himself pleaded alibi and had led evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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