ORDER
M.M. Kumar, J.
1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, ‘the Code’) challenges order dated 17-8-2004, passed by the learned Additional Sessions Judge, Sonepat, dismissing an application of the State filed under Section 311 of the Code for re-examination of P.W. 3 Anil Sharma, City Magistrate, who was examined on 27-2-2004 in Sessions Case No. 31 of 2003 in respect of Case FIR No. 59 dated 16-4-2003 registered under Section 20 NDPS Act, 1985, P.S. Sadar, Sonepat.
2. Brief facts of the case are that the accused-respondent was produced before Shri Anil Sharma, City Magistrate P.W. 3, when he had opted to be searched by a Gazetted Officer in accordance with the provisions of Section 50 of the NDPS Act. The City Magistrate Shri Anil Sharma appeared before the trial Court on 27-2-2004. In order to appreciate the controversy regarding the time of producing the accused before Sh. Anil Sharma it would be necessary to refer to his statement in extenso and the same reads as under :–
On 16-4-2003 I was posted City Magistrate, Sonipat. On that day SI Mehar Singh has produced the accused present in the Court today. Accused was having a blue coloured bag. I made inquiries from the accused. I directed SI Mehar Singh to effect search of the bag. On opening of the bag, SI Mehar Singh recovered 7 packets from inside the bag. Those packets were opened and found to contain Charas in each packet. Each packet was weighing one kilogram. In total it was found to be 7 kgs. Upon rny inquiry the accused had told that he brought the Charas from Una (HP). SI Mehar Singh took out two samples of 10 gms each from the recovered charas and sealed the samples and the remainder into three separate sealed parcels with the seal bearing inscription Ms. My seal bearing inscription RP was affixed on the samples and the remainder. The remainder i.e. all the 7 packets were sealed in one bag. All the three sealed parcels i.e. samples and the remainder were taken into possession vide recovery memo Ex. PC which was signed by Jagmendar, ASI Satbir and also attested by me.
xxxmn by Shri Rajiv Chaudhary, Advocate.
Accused-Ram Parshad was produced be-fore me at my residence at 7 p.m. by SI Mehar Singh. The case properly was weighed by the weighing scale which was made of brass. The case property was weighed seven times. Each packet was weighed separately. There were two three weights including 1 kg. 250 gms. 10 gms. etc. The weights and weighing scale were already with the Investigation Officer. No telephonic message was conveyed to me prior to producing the accused before me. One of witness Jagmender was with the Investigating Agency. There were 5-6 police officials in the Govt. jeep when they came to me. I cannot say who was holding the bag when they came to me at my residence. In my presence the I.O. did not offer himself for his search to the accused, I did not give anything in writing containing direction to the Investigation Officer. The notice served upon by the I.O. was read by me. I do not remember at this stage as to what was the reply of the accused on the notice served upon the accused by the I.O. It is wrong to suggest that City Magistrate does not fall within the definition of a Magistrate according to the Cr. P.C. I do not remember the total number of seals affixed on sample as well as on remainder. However, the seal bearing inscription of MS and RP were affixed. I keep the seal bearing the inscription of RP whereas my initials are AS. I did not have my seal on that day and, therefore, I took the seal from one of the police officials. I do not remember his name. After use the said seal was handed over to Jagminder P.W. I do not remember whether prepared any memo regarding handing over the said seal to Jagminder. The seal was never returned to me. Police Personnel remained with me for about an hour. It became dark. I do not remember whether any Ram Gopal Lambardar was also present on that day. I do not remember whether any person wearing Dhoti Kurta was present, at the time of search. The colour of the recovered contraband was blackish brown. The charas was wrapped in a piece of cloth of different, colour. I do not know outer cover colour of those packets. I do not remember as to who was the person who completing the writing work. I cannot say whether Mehar Singh IO completed the same. In my presence Mehar Singh IO did not send any special report. I do not remember whether accused was handcuffed or not. It is wrong to suggest that the packets or the bag was already opened. Police recorded my statement. The fact that accused disclosed upon my inquiry that he bring the contraband from Una was not stated by me before the police in my statement. The ruqa was not sent by the IO to the Police Station in my presence. I do not known as to from where the police people along with the accused came to my residence. It is correct that on the way there are residence of Judicial Magistrate also if one enter from Gohana road to reach my house. It is incorrect to suggest that nothing was recovered from the possession of the accused in my presence or that I am deposing falsely. 1 do not know about the news item published in Dainik Bhaskar Part Sonipat Bhaskar dated 17-4-2003 that any protest was raised by the public on 16-4-2003 in the working hours before the office of S.P. Sonipat. It is wrong to suggest that recovery memo was falsely prepared later on.
(At this stage. It is submitted by the learned P.P. that according to ruqa Ex. PA which was sent by SI Mehar Singh on 16-4-2003 at 7.45 a.m. and FIR was recorded on 16-4-2003 Itself at 8.30 a.m. in which it finds mentioned that the accused was produced before the City Magistrate in the morning hours. However, the witness has deposed that accused was produced before me at 7 p.m. Therefore, in order to clear the ambiguity he submitted that the witness be declared hostile. However, the said request is declined but following Court question is put to the witness).
C.Q. Whether police/Investigating Agency produced before you the accused with the contraband in’ the morning hours or in the evening hours. If you remember what was the time?
Ans. I exactly remember that the accused was produced before me, in the evening hours_at 7 O’clock and this fact I noted in my official diary also.
RO & AC Special Judge,
Sonipat 27-2-2004.
3. It is evident from the statement made by the City Magistrate that there was some controversy with regard to the timing of production of the accused before him. A request made by the prosecution for declaring the prosecution witness Shri Anil Sharma as hostile was not accepted and instead the Court itself had put a question to him. In answer to the question, the witness had stated that it was evening hours at 7 O’clock and this fact he had noted in his official diary also.
4. On the very next day i.e. 28-2-2004, an affidavit was filed by the officer along with the page of the diary wherein he had recorded that the accused was produced at 7.00 a.m. at his residence. In the affidavit the prayer made to the Court is that he may be permitted to appear in the Court to correct his statement made on the previous date i.e. 27-2-2004. For that purpose, an application under Section 311 of the Code was filed on 30-8-2004, which has been dismissed by the learned trial Court on the ground that the assertion made by the prosecution in the application was to be considered during the course of final arguments. It was further held that a witness cannot be summoned time and again to fill up the lacunae in the evidence of the prosecution. Feeling aggrieved, the State has come up in the revision-petition against the aforementioned order.
5. Mr. Ajay Gulati, learned State counsel appearing for the prosecution has argued that object of recalling the witness is only one i.e. to fathom the truth so as to arrive at a just decision. In that regard he has placed reliance on a judgment of the Supreme Court in Jamatraj Kewalji Govani v. State of Maharashtra . With regard to the prejudice which may be apprehended by the accused, learned Counsel has referred to another judgment of the Bombay High Court in the case of Fatehsinh Mohansinh Chauhan v. Union Territory of Dadra and Nagar Haveli 2003 (4) RCR (Criminal) 168 : 2004 Cri LJ 150 and argued that there would be ample opportunity provided to the accused to cross-examine the witness, which is to be recalled.
6. Mr. R.K. Dahiya, learned Counsel for the accused-respondent has, however, submitted that in fact the truth has come out in the statement made by the City Magistrate on 27-2-2004 and there cannot be. any escape from the aforementioned position. According to the learned Counsel grave prejudice is likely to result if the City Magistrate is again permitted to appear to fill up the lacunae left in the prosecution version. Learned Counsel has also referred to the version given by Shri Anil Sharma, P.W. 3, wherein he has stated that it was getting dark, which would indicate the fact that the accused was produced before him only in the evening at 7.00 p.m.
7. Having heard the learned Counsel for the parties and perusing the record, I am of the considered view that this petition deserves to be accepted. It would be appropriate to refer to Section 311 of the Code which reads as under :–
311. Power to summon material witness, or examine person present.– Any 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.
8. A perusal of the above provision shows that vast powers have been given to the Court to summon a witness or to recall a witness already examined. However, in cases where examination, re-examination or summoning of a witness is essential for the just decision of the case, then it has been made obligatory. This provision has been subject-matter of consideration of the Supreme Court in various judgments. Reference in this regard may be made to the view taken by the Supreme Court in the case of Jamatraj Kewalji Govani’s case 1968 Cri LJ 231 (supra). The observations of the Supreme Court, speaking through Hidayatullah, J. are as under :–
It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case.
9. The aforementioned view has been approved by the Supreme Court in the case of Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271 : 1991 Cri LJ 1521 and Rajindra Prasad v. Narcotic Cell .
10. At this stage, it would be appropriate to make a reference to the order dated 17-8-2004 passed by learned trial Court and the same reads as under :–
Heard on the application moved by the prosecution under Section 311, Cr. P.C. for re-examining P.W. 3 Anil Sharma, who was examined on 27-2-2004.
It is the contention of learned P.P. for the State that the witness himself wants to clarify the timings of the production of accused before him.
On the other hand, it is contended that the said application merits dismissal as the prosecution is intending to fill up the lacunae in its case as regards to the production of the accused before the Gazetted Officer P.W. 3 Anil Sharma.
A careful scrutiny of the statement of the said P.W. reveals that even a Court question was put to him regarding timings of prosecution of the accused before him thus, this assertion contained in the application of the prosecution shall be considered during the course of advancing final arguments. There is no ground to summons the witness again and again to fill up the lacunae of its case. Accordingly the application stands rejected.
Now all the remaining unexamined P.Ws. be summoned for 21-10-2004.
11. A perusal of the impugned order shows that the trial Court has failed to apply its mind in the light of the requirement of Section 311. There is no finding recorded by the learned trial Court as to whether the new evidence for which application was filed would be necessary for just decision of the case.
12. It is further worth mentioning that the City Magistrate appearing as P.W. 3 has made a specific reference to his official diary. A page from the same diary is sought to be placed on record for the purposes of correcting his statement. The aforementioned page of the diary has been attached with the affidavit of the City Magistrate that was Filed on the next date of hearing i.e. 28-2-2004, which makes an interesting reading and deserves to be reproduced in extenso:
Produced at 7.00 a.m. at my residence Accused :–
Ram Parshad s/o Ram Saroop, Jaat r/o Thuru village.
7 kg. Charas in 7 cloth packets of 1 kg. each in 9 blue bag.
He told that he brings the stuff from Una (H.P.)
Independent witness :–Jagminder
Arrested by :– SHO Sadar and party.
13. It is further appropriate to mention that the omission of the prosecution to produce the City Magistrate as P.W. 3 along with his diary for refreshing his memory could not be considered as an attempt to fill up the lacuna. It is now well established that a lacuna in the prosecution must be understood as some inherent weakness in its version. In this regard, reference may be made to paras 7 and 8 of the judgment of the Supreme Court in the case of Rajindra Prasad’s case 1999 Cri LJ 3529 (supra) which reads as under:–
7. It is a common experience in Criminal Courts that defence counsel would raise objections whenever Courts exercise 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 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.
14. It is thus evident that the endeavour of the prosecution is not to fill up a lacuna, but is an effort to correct an error, which has been aptly described by the Supreme Court “to err is human.” The accused is not likely to suffer any prejudice and there would be ample opportunity available to the accused to cross-examine the City Magistrate P.W. 3. In Rajindra Prasad’s case 1999 Cri LJ 3529 (SC) (supra), the witnesses were recalled and new witnesses were examined by the prosecution at the stage when the case was listed for arguments. That case has also emanated from offence registered under N.D.P.S. Act. The exercise of the jurisdiction by the trial Court in allowing the witnesses to be examined at the belated stage was upheld. Therefore, the instant petition deserves to be accepted.
15. In view of the above, this petition succeeds and the order dated 17-8-2004 passed by the trial Court is set aside. The trial Court is directed to re-examine City Magistrate P.W. 3 on an appropriate date.
16. Neeedless to say that the accused-respondent would be granted opportunity to cross-examine Anil Sharma after re-examination. It is also made clear that any observation made in this order shall not be construed as expression of opinion on the merits of the controversy and the trial Court shall proceed without being influenced by any observation made in this order.