The court emphasized the duty of the court to find the truth and administer justice, highlighting the importance of exercising discretionary authority to summon witnesses or recall and re-examine persons to ensure that justice is being done.

This petition is by one of the accused in a criminal case to quash the order of the trial magistrate passed in exercise of powers under S.311 of the Code of Criminal Procedure (for short 'the Code'). Petitioner characterised the prosecution as adopting filibuster.

2. Petitioner and her husband are now being arraigned before a judicial magistrate of first class for offences relating to cheating. The gist of the allegation is that the couple were mountebanks and swindled a jeweller by giving a bogus cheque towards price of gold ornaments valuing nearly a lakh of rupees. Police after investigation charge sheeted the case against them. The trial is reaching final stage and examination of investigating officers is the next step. It was then that the Assistant Public Prosecutor filed an application for recalling P.W.1 for the purpose of proving photo copies of three bills. Learned magistrate allowed the application in spite of resistence from the accused. But after P.W.1 was recalled and further examined, Assistant Public Prosecutor again filed another application to recall P.W.2 for further examination. Though it was strongly resisted, learned magistrate allowed the application as per the impugned order.

3. Assistant Public Prosecutor has stated in the application that photo copies of three bills containing the signature of P.W.2 were marked through P.W.1, but since the defence has disputed the signatures in the bills it is "highly necessary to examine P.W.1 again". Learned magistrate granted it as he felt that for the just decision of the case it is necessary to prove the signatures on the questioned bills. He pointed out that defence has ample opportunity to cross-examine P.W.2 and also to adduce their evidence.

4. Learned counsel, who assailed the order, contended that the court cannot, in exercise of powers under S.311 of the Code, fill up the lacuna of the prosecution case and what is sought to be done is precisely the same.

5. Counsel invited my attention to the following observations of Rat navel Pandian, J. in Mohanlal Shamji Soni v. Union of India (AIR 1991SC 1346) in support of the contention:

"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".

6. Whenever a court is inclined to exercise powers under S.311 of the Code or S.165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. If any new material is to come on record, can it be forestalled on the premise that it would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err is human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defence and consequently serious prejudice would be caused to the accused. The court, whi