Patna High Court - Orders
Manoj Kumar @ Manoj Kumar Soni vs The State Of Bihar & Anr on 13 July, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.11319 of 2011
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Manoj Kumar @ Manoj Kumar Soni
.... .... Petitioner/s
Versus
The State Of Bihar & Anr
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. A.K.Sharma, Adv.
For the Opposite Party/s : Mr. Ahmad Ali, APP.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
3 13-07-2012Heard learned counsel for the petitioner and the State.
In this case, petitioner is challenging the order dated 22nd January 2011 whereby the application filed under Section 311 of the Code of Criminal Procedure by the informant has been allowed.
From the record it appears that the informant as well as Sanjay Kumar Soni who has written the complaint has been examined but due to laches though the signature has been marked but the full document which led to starting of the case has not been exhibited and the court in exercise of power under Section 311 Cr.P.C. allowed the application and thereby gave liberty to Sanjay Kumar Soni for proving the whole document. 2 Patna High Court Cr.Misc. No.11319 of 2011 (3) dt.13-07-2012 2/5
Counsel for the petitioner submits that at this stage the court below should not have exercised power under Section 311 Cr.P.C. which is nothing but filling up of lecuna that has occurred during the trial. Section 311 Cr.P.C. does not authorize the Court to allow the parties to fill up the lacuna, if any, that may happen during the trial.
Counsel for the State has submitted that Section 311 Cr.P.C. authorizes the court for ends of justice, can allow the re- examination of the person who has already been examined.
In this case admittedly Sanjay Kumar Soni has been examined. He ought to have proved the whole document recorded as the FIR but due inadvertence and human error whole document could not be marked. The human is not infallible, committing error is human and other side cannot be allowed to take benefit of human error.
Section 311 Cr.P.C. has authorized the court to examine a witness who has already been examined, if the court feels that it is essential for ends of justice and the said view has been explained by the Hon‟ble Supreme Court in the case reported in 2007(1)PLJR 10 (SC) (U.T. of Dadra & Haweli v. Fatehsinh Mohansinh Chauhan) where the Hon‟ble Supreme Court has explained the power of the court to allow the witness to be 3 Patna High Court Cr.Misc. No.11319 of 2011 (3) dt.13-07-2012 3/5 examined at any stage of trial. Even after closure of argument by the parties, if the court feels that examination of a witness is required, it can exercise that power and allow the person to be examined. The observation of the Hon‟ble Court in the aforesaid case is very apt which is as follows:
"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 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 prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up.
Lacuna in the prosecution must be understood as the inherent weakness or a latent 4 Patna High Court Cr.Misc. No.11319 of 2011 (3) dt.13-07-2012 4/5 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 oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed 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 mangnanimous 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.
Finally, it was held that the proposition that the Court cannot exercise power of re- summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P.Chhaganlal Daga vs. M.Sanjay Shaw (2003)11 SCC 486 where permission granted by the 5 Patna High Court Cr.Misc. No.11319 of 2011 (3) dt.13-07-2012 5/5 Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna".
This Court finds that the court below has exercised the power not arbitrarily but it appears that he has exercise the power to correct the human error for doing complete justice to the parties. This Court does not find any error in the order.
Accordingly, this petition is dismissed.
Jay/- (Shivaji Pandey, J)