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2017 Supreme(Pat) 1578
IN THE HIGH COURT OF JUDICATURE AT PATNA
Hon'ble SHIVAJI PANDEY, J.
Dina Nath Chamar & Ors.
Versus
State of Bihar & Anr.
Cri. Misc. No. 3048 of 2016. Decided on 7th March, 2017.
Mr. Chandra Mauli Chaurasia, For the Petitioners; Mr. Ram Sevak Choudhary, For the State; Mr. Bachan Jee Ojha, For the O.P. No.2.
Headnote:
(A) Criminal Procedure Code, 1973 – Section 311 – Summoning of witness – While exercising Section 311 of Cr.P.C., Court should not be oblivious that prosecution should not be allowed to fill up lacuna left by prosecution – Section 311 is meant to advance justice and to suppress mischief and arrive to a right conclusion – Section 311 of Cr.P.C. will not be allowed to be used for filling up lacuna left by prosecution – Lacuna in prosecution must be understood as inherent weakness or a latent wedge in matrix of prosecution case and advantage of it should normally go to accused in trial of case – But an oversight in management of prosecution cannot be treated as irreparable lacuna and no party in trial can be foreclosed from correcting errors – When proper evidences are not brought on record due to inadvertence, court should be magnanimous in permitting such mistakes to be rectified. (Paras 10 and 11)
(B) Criminal Procedure Code, 1973 – Section 311 – Summoning of witness – Provision of Section 311 of Cr.P.C. is a general section which applies to all proceedings, enquiries and trials under the Code and empowers trial court to issue summon to any witness at any stage of such proceedings, trial or enquiry – Fair trial for a criminal offence consists not only in technical observance of frame and forms of law but also in recognition and just application of its principles in substance, to find out truth and prevent miscarriage of justice – Trial court should find out realty of truth by allowing witnesses to disclose real materials involved in commission of crime – This power cannot be exercised for aid of prosecutor – Best available evidence would be brought before Court to prove fact or point in issue with a liberty to prosecution and defence to establish their respective cases by adducing best evidence but Court has not been empowered to compel either prosecution or defence to examine of witness or witnesses on their side – 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 re-examine any person in attendance. (Paras 12, 14, 15 and 16)
(C) Criminal Procedure Code, 1973 – Sections 311 and 91 – Production of document – Trial court is not bereft of power to call witness as well as material document for its admission during course of trial – Section 311 of Cr.P.C. is couched in widest term – When court below has already directed for examination of licence holder including production of gun license, interference with order of court below will not sub serve justice – Application dismissed. (Paras 22 and 23)
Shivaji Pandey, J. – Heard learned counsel for the petitioners and counsel for the State as also counsel for the opposite party no.2.
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.
3. 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.
4. 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.
5. 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
