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CASE NO.: Appeal (crl.)  834 of 2006

PETITIONER: U.T. of Dadra & Haveli & Anr

RESPONDENT: Fatehsinh Mohansinh Chauhan

DATE OF JUDGMENT: 14/08/2006

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.) No.5459 of 2004)

G. P. MATHUR, J.

1.      Leave granted. 2.      This appeal, by special leave, has been preferred against the  judgment and order dated 8.10.2004 of Bombay High Court by which  the revision preferred by the respondent was allowed and the order  dated 12.8.2004 passed by the learned Sessions Judge, Dadra & Nagar  Haveli, Silvassa, summoning Shri S.P. Marwah, the then Collector,  Dadra & Nagar Haveli, Silvassa under Section 311 Cr. P.C. was set  aside.  

3.      One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30  p.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of  accused A-7, A-8 and A-9 accused A-1 to A-6 had assaulted the  deceased Bapjibhai Bhoya and caused injuries to some others.  The  respondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was  assigned the role of instigation \026 ’Maro Maro, Pakdo Pakdo’.   After  usual investigation charge sheet was submitted against all the nine  accused and the case was committed to the Court of Sessions.  In his  statement under Section 313 Cr.P.C. which was recorded after close  of the prosecution evidence, the respondent took a plea of alibi and  submitted that he is a prominent member of a political party and at the  time of the incident, he was present in the chamber of Shri S.P.  Marwah, Collector, Dadra & Nagar Haveli, Silvassa, as a meeting had  been called there.   The respondent examined two witnesses, viz.,  DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar,  Executive and Sector Magistrate, Dadra, in support of his plea of alibi  that he was present in the chamber of Shri S.P. Marwah.  The Special  Public Prosecutor, thereafter, moved an application, purporting to be  one under Section 311 Cr.P.C., praying that Shri S.P. Marwah, the  then Collector of Dadra & Nagar Haveli, Silvassa and currently  posted as Director, Jal Nigam Board, New Delhi, may be summoned  and examined as a witness. The application was opposed by  respondent no.7 by filing a written reply on the ground, inter alia, that  he had raised a plea of alibi at the very beginning, which was very  well known to the investigating agency, but no investigation in that  direction had been made and the defence taken by him in his  statement under Section 313 Cr.P.C. was not a sudden or unexpected  one.  It was also submitted that the prosecution was not entitled to fill  in a lacuna by moving an application under Section 311 Cr.P.C for the  purpose of summoning a witness.   The learned Sessions Judge, after  referring to the authorities cited by the counsel for the parties, allowed  the application moved by the Special Public Prosecutor by the order

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dated 12.8.2004 and the relevant part of the order which has a bearing  on controversy in dispute is being reproduced below :-

"The gist of all these authorities is that the best  available evidence should be brought before the Court to  prove point in issue.  However, it is left either to the  prosecution or to the defence to establish its respective  case by adducing the best available evidence.  Under  Section 311 of the Code of Criminal Procedure it is the  duty of the Court not only to do justice but also to ensure  that justice is being done.  In order to enable the Court to  find out the truth and render a just decision, provisions of  Section 311 of the Code can be invoked by exercising  judicial discretion at any stage of enquiry, trial or other  proceeding.  This Court is conscious of the fact that matter is  very old and is lingering on some or the other ground  since long.  But this alone will not be sufficient to reject  an opportunity to the prosecution particularly when the  defence has kept behind the best available evidence of  the then Collector who had convened the meeting  according to accused No.7 in which he was present. Moreover, it will not cause any prejudice to  accused no.7 as alibi is his own defence.  He will have an  opportunity to cross-examine the witness.  Thus in order  to find out the truth, evidence of the then Collector is  necessary. In the interest of just and fair decision application  is to be allowed."    

4.      Feeling aggrieved, the respondent filed an application under  Section 397/401/482 Cr.P.C. and Article 227 of the Constitution of  India before the Bombay High Court for setting aside the order dated  12.8.2004 passed by the learned Sessions Judge.  The High Court held  that the respondent had taken a plea of alibi as far back as in the year  1996 when he had moved an application for anticipatory bail and also  when he opposed the application moved by the prosecution for giving  him on police remand.   In the order dated 6.5.1996 passed by the  learned Sessions Judge granting bail to the respondent, it was  observed that the investigating agency had not considered it  appropriate to place the relevant material or to rebut the plea of alibi  taken by the respondent.   The High Court accordingly held that the  grant of the application moved by the Public Prosecutor for  summoning the Collector, Dadra & Nagar Haveli, Silvassa, under  Section 311 Cr.P.C. would inevitably result in permitting the  prosecution to fill in the lacuna in the prosecution case.  It has been  further observed that the respondent had already examined two  witnesses and if the trial Court was of the opinion that the said  evidence was insufficient, a logical conclusion could be drawn for  accepting or not accepting the defence version and merely because the  defence has chosen not to examine one more witness, who should also  have been examined by the defence, that by itself may not be  sufficient reason for invoking the powers under Section 311 Cr.P.C.    The application filed by the respondent was accordingly allowed by  the order under challenge and the order dated 12.8.2004 of the learned  Sessions Judge was set aside.  

5.      Shri Ranjit Kumar, learned senior counsel for the appellant has  submitted that Section 311 Cr.P.C. confers a very wide power on the  Court to summon any person as a witness or to recall and re-examine  any person already examined at any stage of any inquiry, trial or other  proceeding and further the Section casts a duty upon the Court to  summon and examine or recall and re-examine any such person, if his  evidence appears to be essential to the just decision of the case.   Learned counsel has further submitted that the specific defence of the

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respondent is that at the relevant time he was present in the chamber  of Shri S.P. Marwah, the then Collector, Dadra & Nagar Haveli,  Silvassa, where a meeting had been called and, therefore, Shri S.P.  Marwah was the best person to give evidence regarding the said fact.   The learned Sessions Judge had also recorded a finding that in order  to find out the truth, the evidence of the then Collector Shri S.P.  Marwah is necessary.  In such circumstances, the order passed by the  learned Sessions Judge was eminently just and proper and the High  Court has erred in interfering with the said order and setting aside the  same.  

6.      Shri Arun Jaitley, learned senior counsel for the respondent, has  on the other hand submitted that the incident took place on 29.4.1996  and in the application for anticipatory bail moved shortly thereafter, a  specific plea was raised by the respondent that at the alleged time of  the incident, he was present in the meeting which had been convened  by the Collector, Dadra & Nagar Haveli, Silvassa.   The respondent  was arrested on 2.5.1996 and he was remanded to police custody for  three days and after expiry of the said period, an application was  moved for extending the police custody, which was opposed by the  respondent on the ground that he was not present at the scene of  commission of crime and was actually present in the meeting in the  chamber of the Collector, Dadra & Nagar Haveli.  The learned Chief  Judicial Magistrate rejected the prayer of the investigating agency for  extending the police remand by passing a detailed order on 6.5.1996,  wherein it was observed that "the investigating officer should have  thwarted out the alibi taken by the accused at this preliminary stage by  recording the statements of concerning officers" and "it is the inaction  or the casual approach of the police which has disentitled the police to  further custody".  Shri Jaitley has also submitted that in the order  dated 7.5.1996 passed by the incharge Sessions Judge granting bail to  the respondent, it was specifically observed that the investigating  officer had not even bothered to record the statement of those high  ranking officers to show that the contention of the accused was  palpably false though the accused even prior to his arrest or at the  time of filing the application for anticipatory bail had made a clear  assertion about his being present with those officers at the time of the  incident and the police had not bothered to verify this vital fact by  recording the statement of the concerned officers.  Learned counsel  has also submitted that the entire cross-examination of the prosecution  witnesses had been directed on said line and a categorical suggestion  had been given to the witnesses that at the time of alleged incident the  respondent was present in the meeting which had been called by the  Collector.   It has thus been submitted that the prosecuting agency  having slept over the matter for such a long time it was not entitled to  move an application under Section 311 Cr.P.C. at such a belated stage   i.e. on 19.7.2004 to summon the Collector of the Dadra & Nagar  Haveli, Silvassa as a witness.  Learned counsel has also submitted that  the course adopted by the prosecution clearly amounts to filling in the  lacuna in the prosecution evidence and the High Court was, therefore,  perfectly justified in setting aside the order passed by the learned  Sessions Judge.  

7.      We have given our anxious consideration to the submissions  made by the learned counsel for the parties.  The order passed by the  learned Sessions Judge shows that while moving the application for  summoning the Collector of Dadra & Nagar Haveli, Silvassa under  Section 311 Cr.P.C. it was submitted on behalf of the prosecution that  as the meeting had been called in his chamber, he was the best person  to depose about the presence of the respondent, but the respondent had  not chosen to examine him as a witness in his defence and, therefore,  to find out the truth, the evidence of Collector was necessary.   This  prayer was opposed on behalf of the respondent principally on the  ground that right from the beginning the plea of the respondent was  that at the time of the incident he was present in the chamber of the

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Collector where a meeting had been called but the investigating  agency did not make any investigation in that regard, nor made any  attempt to collect the relevant evidence and at such a belated stage  when the entire evidence had been recorded and the trial was almost  over, the prosecution could not be permitted to fill in the lacuna.   The  learned Sessions Judge was of the opinion that the accused had kept  behind the best available evidence of the Collector who had convened  the meeting where he claimed to be present and, therefore, in the  interest of justice and fair decision, the application deserved to be  allowed.   8.      What requires consideration, therefore, is whether the order  passed by the learned Sessions Judge comes within the parameters of  Section 311 Cr.P.C., which confers power on the Court to summon a  material witness or examine a person present in Court.   Section 311   of Code of Criminal Procedure, 1973 is a verbatim reproduction of  Section 540 of Code of Criminal Procedure, 1898 (for short ’old  Code’).  Section 311 Cr.P.C. reads as under: - "311.  Power to summon material witness, or examine  person present.\027Any Court may, at any stage of any  inquiry, trial or other proceeding under this Code,  summon any person as a witness, or examine any person  in attendance, though not summoned as a witness, or recall  and re-examine any person already examined; and the  Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be  essential to the just decision of the case."

The scope and content of Section 540 of the old Code was considered   in several decisions rendered by the High Courts.  A Division Bench  of Allahabad High Court in Ram Jeet & Ors. v. The State AIR 1958  All 439 examined the provisions of the section in considerable detail.   In this case after the entire evidence had been recorded and the  arguments had been heard and a date for pronouncement of judgment  had been fixed, the learned Sessions Judge felt that for the just  decision of the case the evidence of certain persons who had not been  examined hitherto was essential.  Therefore, on the date originally  fixed for delivery of judgment, he passed an order for summoning and  examining some persons as witness under Section 540 of the old  Code.  The order passed by the learned Sessions Judge was challenged  in revision before the High Court and one of the grounds  raised was  that the examination of fresh evidence was tantamount to making  good lacunae in the prosecution case and was, therefore, not justified  under Section 540 of the old Code.  It was held that the Section is  manifestly in two parts; the first part gives purely discretionary  authority to the criminal Court; on the other hand, the second part is  mandatory.   The discretion given by the first part is very wide and its  very width requires a corresponding caution on the part of the Court.  But the second part does not allow for any discretion; it binds the  Court to examine fresh evidence, and the only condition prescribed is  that this evidence must be essential to the just decision of the case.     Dealing with the argument that examination of fresh evidence  amounted to filling in lacuna in the prosecution case, in para 4 of the  reports, it was held :- "The misconception instinct in the applicant’s argument  is made evident by this analysis of the terms of Section  540 and springs from a disregard of the second part of the  section. This part, as should be plain, casts on the Court  the duty of calling fresh evidence whenever such  evidence "appears to it essential to the just decision of the  case". That is to say, the paramount consideration should  be the doing of justice in the case, and whenever the  Court finds that any evidence which is essential for this  has not been examined, the law enjoins it to call and  examine it. If this results in what is sometimes thought to  be the "filling of loopholes", that is a purely subsidiary

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factor and cannot be taken into account."   

       The Bench also took note of illustration (g) of Section 114 of  the Evidence Act which says that evidence which could be and is not  produced would, if produced, be unfavourable to the person who  withholds it.  It was observed that in the trial of criminal cases the  Court should not rely on mere presumptions when the second part of  Section 540 obliges them to summon the witness in question, and at  least criminal Courts unlike civil Courts (the analogous provision of  Order XVI Rule 14 of the Code of Civil Procedure gives the civil  Court merely discretionary authority) are not entitled to level the type  of criticism just referred to.   

9.      In State of West Bengal v. Tulsidas Mundhra 1964 (1) Crl. L.J.  443, this Court considered the amplitude of Section 540 of the old  Code.  The question which arose for consideration in this case was  whether in proceedings under Section 207A of the old Code  (commitment proceedings before a Magistrate in a case instituted on a  police report and which was exclusively triable by the Court of  Sessions) the provision of Section 540 would be applicable.  It was  held :- "Section 540 confers on criminal Courts very wide  powers.  It is no doubt for the court to consider whether  the power under this section should be exercised or not.  But if it is satisfied that the evidence of any person not  examined or further evidence of any person already  examined is essential to the just decision of the case, it is  its duty to take such evidence.  The exercise of the power  conferred by S. 540 is conditioned by the requirement  that such exercise would be essential to the just decision  of the case."            

10.     In Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968  SC 178 after analysis of the provision of Section it was held as under  in para 10 of the reports : "Section 540 is intended to be wide as the repeated use of  the word ’any’ throughout its length clearly indicates. The  section is in two parts. The first part gives a discretionary  power but the latter part is mandatory. The use of the  word ’may’ in the first part and of the word ’shall’ in the  second firmly establishes this difference. Under the first  part, which is permissive, the court may act in one of  three ways : (a) summon any person as a witness, (b)  examine any person present in court although not  summoned, and (c) recall or re-examine a witness already  examined. The second part is obligatory and compels the  Court to act in these three ways or any one of them if the  just decision of the case demands it. As the section stands  there is no limitation on the power of the Court arising  from the stage to which the trial may have reached,  provided the Court is bona fide of the opinion that for the  just decision of the case, the step must be taken. It is  clear that the requirement of just decision of the case  does not limit the action to some thing in the interest of  the accused only. The action may equally benefit the  prosecution. ..............."   

11.     In Mohanlal Shamji Soni v. Union of India & Anr. AIR 1991  SC 1346 it was observed that it is a cardinal rule in the law of  evidence that the best available evidence should be brought before the  Court to prove a fact or the points in issue.   But it is left either for the  prosecution or for the defence to establish its respective case by  adducing the best available evidence and the Court is not empowered  under the provisions of the Code to compel either the prosecution or  the defence to examine any particular witness or witnesses on their

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sides.  It is the duty of a Court not only to do justice but also to ensure  that justice is being done.  It was further held that the second part of  the Section does not allow for any discretion but it binds and compels  the Court to take any of the aforementioned two steps if the fresh  evidence to be obtained is essential to the just decision of the case.  It  was emphasized that power is circumscribed by the principle that  underlines Section 311 Cr.P.C., namely, evidence to be obtained  should appear to the court essential to a just decision of the case by  getting at the truth by all lawful means.   Further, that the power must  be used judicially and not capriciously or arbitrarily.   It was further  observed that evidence should not be received as a disguise for a  retrial or to change the nature of the case against either of the parties  and the discretion of the Court must obviously be dictated by  exigency of the situation and fair play and good sense appear to be the  safe guides and that only the requirement of justice command the  examination of any person which would depend on the facts and  circumstances of each case.  Rajendra Prasad v. Narcotic Cell (1999)  6 SCC 110 is a decision where the contention that the prosecution  should not be permitted to fill in lacuna was examined having regard  to the peculiar facts where the exercise of power under Section 311  Cr.P.C. second time was challenged and, therefore, it is necessary to  notice the facts of the case in brief.   The accused along with some  other persons was facing trial for offences under Sections 21, 25 and  29 of the NDPS Act.   The prosecution and the defence closed their  evidence on 19.9.1997 and the case was posted for further steps and  on 7.3.1998, after few more dates, at the instance of the prosecution  two witnesses who had already been examined were reexamined for  the purpose of proving certain documents for prosecution.   After they  had been examined and the evidence had been closed, the case was  posted for hearing arguments, which was heard in piecemeal on  different dates.   Subsequently on 7.6.1998, the Public Prosecutor  moved an application seeking permission to examine Dalip Singh, S.I.  and two other persons.  Though the application was strongly opposed  by the counsel for the accused, the trial Court allowed the same in  exercise of its power under Section 311 Cr.P.C. and summons were  issued to the witnesses.  The challenge raised to the order of the  learned Sessions Judge by filing a revision was dismissed by the High  Court.  In appeal before this Court it was contended that in the garb of  exercise of power under Section 311 Cr.P.C., a Court cannot allow the  prosecution to reexamine prosecution witnesses in order to fill up  lacana in the case specially having regard to the fact that Dalip Singh  witness was never tendered by the prosecution for cross-examination  and PW.4 Suresh Chand Sharma had also not been cross-examined by  the State.  Repelling the contention raised on behalf of the accused it  was held : "7.     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.

8.      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  oversight in the management of the prosecution cannot

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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  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."               

       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 v. M. Sanjay Shaw (2003) 11  SCC 486 where permission granted by the 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.  12.     A conspectus of authorities referred to above would show that  the principle is well settled that the exercise of power under Section  311 Cr.P.C. should be resorted to only with the object of finding out  the truth or obtaining proper proof of such facts which lead to a just  and correct decision of the case, this being the primary duty of a  criminal court.  Calling a witness or re-examining a witness already  examined for the purpose of finding out the truth in order to enable  the Court to arrive at a just decision of the case cannot be dubbed as  "filling in a lacuna in prosecution case" unless the facts and  circumstances of the case make it apparent that the exercise of power  by the Court would result in causing serious prejudice to the accused  resulting in miscarriage of justice.  

13.     The charge-sheet submitted by the police under Section 173  Cr.P.C. after completion of investigation contains the statements of  the witnesses as recorded under Section 161 Cr.P.C. and in a case  exclusively triable by court of Sessions there is a duty enjoined on a  magistrate to furnish to the accused, free of cost, a copy of the police  report including a copy of the FIR, statement of the witnesses under  Section 161 Cr.P.C. and other documents as mentioned in Section 207  Cr.P.C.  It is on the basis of the charge-sheet that the magistrate takes  cognizance of the offence under Section 190(1)(b) Cr.P.C.  Normally,  the investigating agency cannot visualize at that stage what will be the  nature of defence which an accused will take in his statement under  Section 313 Cr.P.C. as the said stage comes after the entire  prosecution evidence has been recorded.  The prosecution is only  required to establish its case by leading oral and documentary  evidence in support thereof. While leading evidence the prosecution  may not be in a position to anticipate or foresee the nature of defence  which may be taken by the accused and evidence which he may lead  to substantiate the same. Therefore, it is neither expected to lead  negative evidence nor it is possible for it to lead such evidence so as  to demolish the plea which may possibly be taken by the accused in  his defence.  This being the normal situation, an application moved by  the prosecution for summoning a witness under Section 311 Cr.P.C.,  after the defence evidence has been recorded, should not be branded  as "an attempt by the prosecution to fill in a lacuna".  

14.     In the case in hand the respondent has raised a plea of alibi that  at the time of the alleged incident he was present in the chamber of the  Collector, Dadra & Nagar Haveli, Silvassa, who had called a meeting.    In fact, the respondent has led evidence on the said point by  examining DW.1 and DW.2. The evidence of the then Collector,  Dadra and Nagar Haveli might as well support the defence taken by

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the respondent.  In such circumstances if the learned Sessions Judge  was of the opinion that in order to find out the truth, the evidence of  the Collector was necessary, no exception can be taken to the course  adopted by him.   It was for the learned Sessions Judge to decide  whether for just and fair decision of the case, the evidence of the  Collector is necessary or not and he having come to a conclusion that  evidence of the Collector was necessary for just and fair decision of  the case, the order passed by him could not have been set aside by the  High Court on the ground that it would amount to filling in lacuna in  the prosecution case.   We are clearly of the opinion that in the facts  and circumstances of the case, the examination of the then Collector,  Dadra and Nagar Haveli cannot be termed as filling in lacuna in the  prosecution case.  The learned Sessions Judge rightly observed that  the evidence of the Collector will not cause any prejudice to the  respondent as he had himself pleaded alibi and had led evidence to  substantiate the same.  We are, therefore, of the opinion that the High  Court clearly erred in setting aside the order passed by the learned  Sessions Judge.  

15.     In the result, the appeal is allowed and the judgment and order  dated 8.10.2004 passed by the High Court is set aside and the order  dated 12.8.2004 of the learned Sessions Judge is restored.  27929