Important Points
1. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case.
2. It cannot be said as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments.

Headnote:Criminal Procedure Code, 1973 — Section 311—Resummon/ recall of witness—Power of Court—Scope of — Court cannot permit prosecution to fill up lacuna in evidence—Lacuna in prosecution case, connotation of—Lacuna in prosecution is not to be equated with fallout of an oversight committed by a public prosecutor during trial either in producing relevant materials or in eliciting relevant answers from witnesses—Lacuna must be understood as inherent weakness or a latent wedge in the matrix of prosecution case—Power of Court is plenary—It can summon or recall witness at any stage—Exercise of power once made is not a bar to exercise power of re-summoning.
       Held : 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 by saying that the court could not ‘fill the lacuna in the prosecution case’. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage ‘to err is human’ is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. (Para 7)
       Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the 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. (Para 8)
       We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. (Para 11)
       Result : Appeal dismissed.

Judgment

Thomas, J.—Leave granted.

2. Can a trial Court permit lacuna in prosecution evidence filled up? The conventional concept is that the court should not do so. But then, what is meant by lacuna in a prosecution case, has to be understood before deciding the said question one way or the other.

3. The present case provides an occasion to decide the said question. Appellant is now facing trial along with certain other persons before a court of sessions for offences under Sections 21, 25 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Appellant is now on bail pursuant to an order granted by the High Court of Delhi. As the trial proceeded almost to the end when the prosecution and the defence closed their evidence on 19.9.1997, the case was posted for further steps. Nevertheless, subsequently, the case stood posted to some other days also. On 7.3.1998, at the instance of the prosecution two of the witnesses, who were already examined, were re-summoned for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments. It appears that arguments were heard in piece-meal on different days. On 7.6.1998, the Public Prosecutor moved an application seeking permission to examine PW-21 (Dalip Singh-S1) and two other persons. Though the application was stoutly opposed by the accused’s counsel the trial Court allowed it in exercise of its power under Section 311 of the Code of Criminal Procedure (for short ‘the Code’) and summons were issued to the witnesses as per its order dated 8.1.1999.

4. The relevant portion of that order of the trial Court is the following :

“In order to find out whether the CFSL Form accompanied the sample packed or not, it has been repeatedly held by the Hon’ble High Court that the Road Certificate should be produced to make things clear in this respect. It cannot be denied that it is an old case the directions have been issued several times to expedite the trial Court but at the same time when the witnesses are available the prosecution cannot be debarred by examining him. In the present case, cross examination of P.W. 4 was deferred by learned Additional Public Prosecutor. Cross examination of P.W. 21 by the Defence Counsel was deferred but thereafter he was never summoned for cross examination. There was negligence on the part of Public Prosecutor as he closed evidence twice without verifying whether cross examination of all the witnesses has been concluded or not. However, in the interest of justice, I allow the application to the extent that PW 21 Dalip Singh be recalled for cross examination. The interest of justice demands that things should be clear before the court to assist it to meet the ends of justice.”

5. Appellant challenged the said order in revision before the High Court of Delhi. As it was an interlocutory order the question whether a revision was not maintainable as per Section 397(2) of the Code was not considered by the High Court. Nevertheless, the High Court entertained the revision and dismissed it as per the impugned order. According to the learned single Judge who dismissed the revision “there are certain circumstances which have been mentioned in the order of the sessions judge which forced him to pass the order”.

6. Learned counsel for the appellants contended that the trial Court failed to appreciate that in the grab of exercise of powers under Section 311 of the Code a court cannot allow the prosecution to re-examine prosecution witnesses in order to fill up lacuna in the case. Lacunae, as pointed out by the learned counsel, were the following:

(a) P.W. 21 Dalip Singh was never tendered by the prosecution for cross examination.

(b) P.W. 4 Suresh Chand Sharma was also not cross examined by the State.

(c) There was no link evidence to correct the testimony of P.W. 28 H/C Jai Prakash. That aspect was highlighted during arguments in the trial Court, bef

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Cases Referred (1)