The power to receive additional evidence under Section 311 of the Cr.P.C., 1973, can be exercised even after the completion of the trial, if it is essential for the just decision of the case, even if it is intended to fill a lacuna in the prosecution case.

Pushpendra Singh Bhati, J.

The petitioner has preferred this misc. petition under section 482 of Cr.P.C., 1973 against the order dated 25.11.2016 passed by learned Additional District & Sessions Judge No. 2, Barmer, in Criminal Revision No. 53/15 (31/13, 98/12, 54/12), who whereby dismissed the revision petition and upheld the order dated 16.07.2012, passed by learned Chief Judicial Magistrate, Barmer, in Criminal Misc. Petition No. 193/2003, who whereby dismissed the application of the petitioner filed under section 311 of Cr.P.C., 1973.

2. No one has put in appearance on behalf of the respondent even after the service is compete.

3. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by this Court in Ganpat Lal Choudhary v. State of Rajasthan & Anr. (Criminal misc. Petition No. 2142/2015) decided on 24.04.2017.

4. This Court on 24.04.2017 has passed the following order in Ganpat Lal Choudhary v. State & Anr. (Supra):-

1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 20.07.2015 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No. 2, Jodhpur Metropolitan in criminal complaint case No. 381/2013 whereby learned trial court has rejected the application filed by the petitioner under Section 311 Cr.P.C., 1973 for his re-examination.

2. No one has put in appearance on behalf of the respondent even after the service is complete.

3. Counsel for the petitioner has relied upon the judgment of P. Chhaganlal Daga v. M. Sanjay Shaw reported in (2003) 11 SCC 486. The relevant portion of the judgment reads as under:

"3. In a prosecution launched by the appellant under section 138 of the Negotiable Instruments Act, 1881, the appellant completed the evidence including his own examination, cross-examination and re-examination. During such cross-examination the respondent-accused contested the question of service of notice envisaged under section 138 of the Negotiable Instruments Act. The acknowledgement card produced by the complainant contained a signature which the accused disowned as his. After the arguments concluded and the case was posted for judgment the complainant moved the trial court for reception of additional material (by producing a postal receipt) in exercise of the powers under section 311 of the Code of Criminal Procedure, 1973. The trial court felt that the said material was necessary for the just decision of the case and hence allowed the same to come on record. The said order of the trial magistrate was challenged by the accused before the High Court.

4. In the impugned judgment a learned single judge of the High Court held that production of the postal receipt at the said belated stage was only "to fill up the lacuna" and hence the same is impermissible in law. He, therefore, interfered with the order passed by the trial court and permission to produce the postal receipt was countermanded. The learned single judge has stated the following regarding that aspect :

After the trial is over, if the petitioner is permitted to produce the postal receipt, that would only prejudice the right of the accused. Further, the postal receipt is sought to be produced only to fill up the lacuna or letting in corroboration of the evidence, if any available regarding this aspect. I consider that the respondent cannot be allowed to adopt such a course."

5. In Rajendra Prasad v. Narcotic Cell, this court has explained what is meant by lacuna in the prosecution case. The following passage of the said decision will be apposite in this contest: (page 113) :

"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 fall out of an oversight commit