IMPORTANT POINT
Exercise of power u/s 311 Cr.P.C. should be resorted to only with object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case and an application by prosecution for summoning a witness after the defence had been recorded would not in all situation be branded as attempt to fill in a lacuna.

Headnote:Criminal Procedure Code, 1973 — Section 311 — Power to summon material witness — Exercise of power should be restored to only with object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision — An application moved by prosecution for summoning a witness u/s 311 Cr.P.C. after defence evidence had been recorded, should not be branded as “an attempt by prosecution to fill in a lacuna” in all situations — Respondent-accused as A7 faced trial for offence of assault and injuries to imformant with other accused — Respondent took a plea of alibi that he was present in chamber of Collector as a meeting had been called and examined two witnesses on that defence — Application by prosecution to summon and examine the then collector — Sessions Court allowed the application — High Court set aside the order holding that respondent had taken a plea of alibi as far back as in year 1996 when he moved anticipatory bail application and grant of application of prosecution would result in permitting prosecution to fill in lacuna in its case — Appeal — In the facts and circumstances, examination of the then Collector could not be termed as filling in lacuna in prosecution case and will not cause any prejudice to respondent — High Court erred in setting aside the order of Session Court.
       Held : A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. (Para 12)
       While leading evidence the prosecution may not be in a position to anticipate or foresee the nature of defence which may be taken by the accused and evidence which he may lead to substantiate the same. Therefore, it is neither expected to lead negative evidence nor it is possible for it to lead such evidence so as to demolish the plea which may possibly be taken by the accused in his defence. This being the normal situation, an application moved by the prosecution for summoning a witness under Section 311 Cr.P.C., after the defence evidence has been recorded, should not be branded as "an attempt by the prosecution to fill in a lacuna". (Para 13)
       In the case in hand the respondent has raised a plea of alibi that at the time of the alleged incident he was present in the chamber of the Collector, Dadra & Nagar Haveli, Silvassa, who had called a meeting. In fact, the respondent has led evidence on the said point by examining 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 to substantiate the same. We are, therefore, of the opinion that the High Court clearly erred in setting aside the order passed by the learned Sessions Judge. (Para 14)

JUDGMENT

G.P. Mathur, J. — 1. Leave granted.

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

3. One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of accused A-7, A-8 and A-9 accused A-1 to A-6 had assaulted the deceased Bapjibhai Bhoya and caused injuries to some others. The respondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was assigned the 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 summoned and examined as a witness. The application was opposed by respondent No.7 by filing a written reply on the ground, inter alia, that he had raised a plea of alibi at the very beginning, which was very well known to the investigating agency, but no investigation in that direction had been made and the defence taken by him in his statement under Section 313 Cr.P.C. was not a sudden or unexpected one. It was also submitted that the prosecution was not entitled to fill in a lacuna by moving an application under Section 311 Cr.P.C for the purpose of summoning a witness. The learned Sessions Judge, after referring to the authorities cited by the counsel for the parties, allowed the application moved by the Special Public Prosecutor by the order dated 12.8.2004 and the relevant part of the order which has a bearing on controversy in dispute is being reproduced below:-

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

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

Moreover, it will not cause any prejudice to accused no.7 as alibi is his own defence. He will have an opportunity to cross-examine the witness. Thus in order to find out the truth, evidence of the then Collector is necessary.

In the interest of just and fair decision application is to

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2006 Supreme(SC) 728

Cases Referred (5)