{"id":40785,"date":"2006-08-14T00:00:00","date_gmt":"2006-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/u-t-of-dadra-haveli-anr-vs-fatehsinh-mohansinh-chauhan-on-14-august-2006"},"modified":"2017-11-02T23:01:15","modified_gmt":"2017-11-02T17:31:15","slug":"u-t-of-dadra-haveli-anr-vs-fatehsinh-mohansinh-chauhan-on-14-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/u-t-of-dadra-haveli-anr-vs-fatehsinh-mohansinh-chauhan-on-14-august-2006","title":{"rendered":"U.T. Of Dadra & Haveli & Anr vs Fatehsinh Mohansinh Chauhan on 14 August, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
U.T. Of Dadra & Haveli & Anr vs Fatehsinh Mohansinh Chauhan on 14 August, 2006<\/div>\n
Author: G P Mathur<\/div>\n
Bench: G.P. Mathur, A.K. Mathur<\/div>\n
           CASE NO.:\nAppeal (crl.)  834 of 2006\n\nPETITIONER:\nU.T. of Dadra & Haveli & Anr\n\nRESPONDENT:\nFatehsinh Mohansinh Chauhan\n\nDATE OF JUDGMENT: 14\/08\/2006\n\nBENCH:\nG.P. Mathur & A.K. Mathur\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of S.L.P.(Crl.) No.5459 of 2004)<\/p>\n
G. P. MATHUR, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tThis appeal, by special leave, has been preferred against the
\njudgment and order dated 8.10.2004 of Bombay High Court by which
\nthe revision preferred by the respondent was allowed and the order
\ndated 12.8.2004 passed by the learned Sessions Judge, Dadra & Nagar
\nHaveli, Silvassa, summoning Shri S.P. Marwah, the then Collector,
\nDadra & Nagar Haveli, Silvassa under Section 311 Cr. P.C. was set
\naside.\n<\/p>\n
3.\tOne Damabhai Lasyabhai Choudhary lodged an FIR at 8.30
\np.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of
\naccused A-7, A-8 and A-9 accused A-1 to A-6 had assaulted the
\ndeceased Bapjibhai Bhoya and caused injuries to some others.  The
\nrespondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was
\nassigned the role of instigation  ‘Maro Maro, Pakdo Pakdo’.   After
\nusual investigation charge sheet was submitted against all the nine
\naccused and the case was committed to the Court of Sessions.  In his
\nstatement under Section 313 Cr.P.C. which was recorded after close
\nof the prosecution evidence, the respondent took a plea of alibi and
\nsubmitted that he is a prominent member of a political party and at the
\ntime of the incident, he was present in the chamber of Shri S.P.
\nMarwah, Collector, Dadra & Nagar Haveli, Silvassa, as a meeting had
\nbeen called there.   The respondent examined two witnesses, viz.,
\nDW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar,
\nExecutive and Sector Magistrate, Dadra, in support of his plea of alibi
\nthat he was present in the chamber of Shri S.P. Marwah.  The Special
\nPublic Prosecutor, thereafter, moved an application, purporting to be
\none under Section 311 Cr.P.C., praying that Shri S.P. Marwah, the
\nthen Collector of Dadra & Nagar Haveli, Silvassa and currently
\nposted as Director, Jal Nigam Board, New Delhi, may be summoned
\nand examined as a witness. The application was opposed by
\nrespondent no.7 by filing a written reply on the ground, inter alia, that
\nhe had raised a plea of alibi at the very beginning, which was very
\nwell known to the investigating agency, but no investigation in that
\ndirection had been made and the defence taken by him in his
\nstatement under Section 313 Cr.P.C. was not a sudden or unexpected
\none.  It was also submitted that the prosecution was not entitled to fill
\nin a lacuna by moving an application under Section 311 Cr.P.C for the
\npurpose of summoning a witness.   The learned Sessions Judge, after
\nreferring to the authorities cited by the counsel for the parties, allowed
\nthe application moved by the Special Public Prosecutor by the order
\ndated 12.8.2004 and the relevant part of the order which has a bearing
\non controversy in dispute is being reproduced below :-\n<\/p>\n
“The gist of all these authorities is that the best
\navailable evidence should be brought before the Court to
\nprove point in issue.  However, it is left either to the
\nprosecution or to the defence to establish its respective
\ncase by adducing the best available evidence.  Under
\nSection 311 of the Code of Criminal Procedure it is the
\nduty of the Court not only to do justice but also to ensure
\nthat justice is being done.  In order to enable the Court to
\nfind out the truth and render a just decision, provisions of
\nSection 311 of the Code can be invoked by exercising
\njudicial discretion at any stage of enquiry, trial or other
\nproceeding.\n<\/p>\n
This Court is conscious of the fact that matter is
\nvery old and is lingering on some or the other ground
\nsince long.  But this alone will not be sufficient to reject
\nan opportunity to the prosecution particularly when the
\ndefence has kept behind the best available evidence of
\nthe then Collector who had convened the meeting
\naccording to accused No.7 in which he was present.
\nMoreover, it will not cause any prejudice to
\naccused no.7 as alibi is his own defence.  He will have an
\nopportunity to cross-examine the witness.  Thus in order
\nto find out the truth, evidence of the then Collector is
\nnecessary.\n<\/p>\n
In the interest of just and fair decision application
\nis to be allowed.”\n<\/p>\n
4.\tFeeling aggrieved, the respondent filed an application under
\nSection 397\/401\/482 Cr.P.C. and Article 227 of the Constitution of
\nIndia before the Bombay High Court for setting aside the order dated
\n12.8.2004 passed by the learned Sessions Judge.  The High Court held
\nthat the respondent had taken a plea of alibi as far back as in the year
\n1996 when he had moved an application for anticipatory bail and also
\nwhen he opposed the application moved by the prosecution for giving
\nhim on police remand.   In the order dated 6.5.1996 passed by the
\nlearned Sessions Judge granting bail to the respondent, it was
\nobserved that the investigating agency had not considered it
\nappropriate to place the relevant material or to rebut the plea of alibi
\ntaken by the respondent.   The High Court accordingly held that the
\ngrant of the application moved by the Public Prosecutor for
\nsummoning the Collector, Dadra & Nagar Haveli, Silvassa, under
\nSection 311 Cr.P.C. would inevitably result in permitting the
\nprosecution to fill in the lacuna in the prosecution case.  It has been
\nfurther observed that the respondent had already examined two
\nwitnesses and if the trial Court was of the opinion that the said
\nevidence was insufficient, a logical conclusion could be drawn for
\naccepting or not accepting the defence version and merely because the
\ndefence has chosen not to examine one more witness, who should also
\nhave been examined by the defence, that by itself may not be
\nsufficient reason for invoking the powers under Section 311 Cr.P.C.
\nThe application filed by the respondent was accordingly allowed by
\nthe order under challenge and the order dated 12.8.2004 of the learned
\nSessions Judge was set aside.\n<\/p>\n
5.\tShri Ranjit Kumar, learned senior counsel for the appellant has
\nsubmitted that Section 311 Cr.P.C. confers a very wide power on the
\nCourt to summon any person as a witness or to recall and re-examine
\nany person already examined at any stage of any inquiry, trial or other
\nproceeding and further the Section casts a duty upon the Court to
\nsummon and examine or recall and re-examine any such person, if his
\nevidence appears to be essential to the just decision of the case.
\nLearned counsel has further submitted that the specific defence of the
\nrespondent is that at the relevant time he was present in the chamber
\nof Shri S.P. Marwah, the then Collector, Dadra & Nagar Haveli,
\nSilvassa, where a meeting had been called and, therefore, Shri S.P.
\nMarwah was the best person to give evidence regarding the said fact.
\nThe learned Sessions Judge had also recorded a finding that in order
\nto find out the truth, the evidence of the then Collector Shri S.P.
\nMarwah is necessary.  In such circumstances, the order passed by the
\nlearned Sessions Judge was eminently just and proper and the High
\nCourt has erred in interfering with the said order and setting aside the
\nsame.\n<\/p>\n
6.\tShri Arun Jaitley, learned senior counsel for the respondent, has
\non the other hand submitted that the incident took place on 29.4.1996
\nand in the application for anticipatory bail moved shortly thereafter, a
\nspecific plea was raised by the respondent that at the alleged time of
\nthe incident, he was present in the meeting which had been convened
\nby the Collector, Dadra & Nagar Haveli, Silvassa.   The respondent
\nwas arrested on 2.5.1996 and he was remanded to police custody for
\nthree days and after expiry of the said period, an application was
\nmoved for extending the police custody, which was opposed by the
\nrespondent on the ground that he was not present at the scene of
\ncommission of crime and was actually present in the meeting in the
\nchamber of the Collector, Dadra & Nagar Haveli.  The learned Chief
\nJudicial Magistrate rejected the prayer of the investigating agency for
\nextending the police remand by passing a detailed order on 6.5.1996,
\nwherein it was observed that “the investigating officer should have
\nthwarted out the alibi taken by the accused at this preliminary stage by
\nrecording the statements of concerning officers” and “it is the inaction
\nor the casual approach of the police which has disentitled the police to
\nfurther custody”.  Shri Jaitley has also submitted that in the order
\ndated 7.5.1996 passed by the incharge Sessions Judge granting bail to
\nthe respondent, it was specifically observed that the investigating
\nofficer had not even bothered to record the statement of those high
\nranking officers to show that the contention of the accused was
\npalpably false though the accused even prior to his arrest or at the
\ntime of filing the application for anticipatory bail had made a clear
\nassertion about his being present with those officers at the time of the
\nincident and the police had not bothered to verify this vital fact by
\nrecording the statement of the concerned officers.  Learned counsel
\nhas also submitted that the entire cross-examination of the prosecution
\nwitnesses had been directed on said line and a categorical suggestion
\nhad been given to the witnesses that at the time of alleged incident the
\nrespondent was present in the meeting which had been called by the
\nCollector.   It has thus been submitted that the prosecuting agency
\nhaving slept over the matter for such a long time it was not entitled to
\nmove an application under Section 311 Cr.P.C. at such a belated stage
\ni.e. on 19.7.2004 to summon the Collector of the Dadra & Nagar
\nHaveli, Silvassa as a witness.  Learned counsel has also submitted that
\nthe course adopted by the prosecution clearly amounts to filling in the
\nlacuna in the prosecution evidence and the High Court was, therefore,
\nperfectly justified in setting aside the order passed by the learned
\nSessions Judge.\n<\/p>\n
7.\tWe have given our anxious consideration to the submissions
\nmade by the learned counsel for the parties.  The order passed by the
\nlearned Sessions Judge shows that while moving the application for
\nsummoning the Collector of Dadra & Nagar Haveli, Silvassa under
\nSection 311 Cr.P.C. it was submitted on behalf of the prosecution that
\nas the meeting had been called in his chamber, he was the best person
\nto depose about the presence of the respondent, but the respondent had
\nnot chosen to examine him as a witness in his defence and, therefore,
\nto find out the truth, the evidence of Collector was necessary.   This
\nprayer was opposed on behalf of the respondent principally on the
\nground that right from the beginning the plea of the respondent was
\nthat at the time of the incident he was present in the chamber of the
\nCollector where a meeting had been called but the investigating
\nagency did not make any investigation in that regard, nor made any
\nattempt to collect the relevant evidence and at such a belated stage
\nwhen the entire evidence had been recorded and the trial was almost
\nover, the prosecution could not be permitted to fill in the lacuna.   The
\nlearned Sessions Judge was of the opinion that the accused had kept
\nbehind the best available evidence of the Collector who had convened
\nthe meeting where he claimed to be present and, therefore, in the
\ninterest of justice and fair decision, the application deserved to be
\nallowed.\n<\/p>\n
8. \tWhat requires consideration, therefore, is whether the order
\npassed by the learned Sessions Judge comes within the parameters of
\nSection 311 Cr.P.C., which confers power on the Court to summon a
\nmaterial witness or examine a person present in Court.   Section 311
\nof Code of Criminal Procedure, 1973 is a verbatim reproduction of
\nSection 540 of Code of Criminal Procedure, 1898 (for short ‘old
\nCode’).  Section 311 Cr.P.C. reads as under: –\n<\/p>\n
“311.  Power to summon material witness, or examine
\nperson present.Any Court may, at any stage of any
\ninquiry, trial or other proceeding under this Code,
\nsummon any person as a witness, or examine any person
\nin attendance, though not summoned as a witness, or recall
\nand re-examine any person already examined; and the
\nCourt shall summon and examine or recall and re-\n<\/p>\n
examine any such person if his evidence appears to it to be
\nessential to the just decision of the case.”\n<\/p>\n
The scope and content of Section 540 of the old Code was considered
\nin several decisions rendered by the High Courts.  A Division Bench
\nof Allahabad High Court in Ram Jeet & Ors. v. The State AIR 1958
\nAll 439 examined the provisions of the section in considerable detail.
\nIn this case after the entire evidence had been recorded and the
\narguments had been heard and a date for pronouncement of judgment
\nhad been fixed, the learned Sessions Judge felt that for the just
\ndecision of the case the evidence of certain persons who had not been
\nexamined hitherto was essential.  Therefore, on the date originally
\nfixed for delivery of judgment, he passed an order for summoning and
\nexamining some persons as witness under Section 540 of the old
\nCode.  The order passed by the learned Sessions Judge was challenged
\nin revision before the High Court and one of the grounds  raised was
\nthat the examination of fresh evidence was tantamount to making
\ngood lacunae in the prosecution case and was, therefore, not justified
\nunder Section 540 of the old Code.  It was held that the Section is
\nmanifestly in two parts; the first part gives purely discretionary
\nauthority to the criminal Court; on the other hand, the second part is
\nmandatory.   The discretion given by the first part is very wide and its
\nvery width requires a corresponding caution on the part of the Court.
\nBut the second part does not allow for any discretion; it binds the
\nCourt to examine fresh evidence, and the only condition prescribed is
\nthat this evidence must be essential to the just decision of the case.
\nDealing with the argument that examination of fresh evidence
\namounted to filling in lacuna in the prosecution case, in para 4 of the
\nreports, it was held :-\n<\/p>\n
“The misconception instinct in the applicant’s argument
\nis made evident by this analysis of the terms of Section
\n540 and springs from a disregard of the second part of the
\nsection. This part, as should be plain, casts on the Court
\nthe duty of calling fresh evidence whenever such
\nevidence “appears to it essential to the just decision of the
\ncase”. That is to say, the paramount consideration should
\nbe the doing of justice in the case, and whenever the
\nCourt finds that any evidence which is essential for this
\nhas not been examined, the law enjoins it to call and
\nexamine it. If this results in what is sometimes thought to
\nbe the “filling of loopholes”, that is a purely subsidiary
\nfactor and cannot be taken into account.”\n<\/p>\n
\tThe Bench also took note of illustration (g) of Section 114 of
\nthe Evidence Act which says that evidence which could be and is not
\nproduced would, if produced, be unfavourable to the person who
\nwithholds it.  It was observed that in the trial of criminal cases the
\nCourt should not rely on mere presumptions when the second part of
\nSection 540 obliges them to summon the witness in question, and at
\nleast criminal Courts unlike civil Courts (the analogous provision of
\nOrder XVI Rule 14 of the Code of Civil Procedure gives the civil
\nCourt merely discretionary authority) are not entitled to level the type
\nof criticism just referred to.\n<\/p>\n
9.\tIn State of West Bengal v. Tulsidas Mundhra<\/a> 1964 (1) Crl. L.J.
\n443, this Court considered the amplitude of Section 540 of the old
\nCode.  The question which arose for consideration in this case was
\nwhether in proceedings under Section 207A of the old Code
\n(commitment proceedings before a Magistrate in a case instituted on a
\npolice report and which was exclusively triable by the Court of
\nSessions) the provision of Section 540 would be applicable.  It was
\nheld :-\n<\/p>\n
“Section 540 confers on criminal Courts very wide
\npowers.  It is no doubt for the court to consider whether
\nthe power under this section should be exercised or not.
\nBut if it is satisfied that the evidence of any person not
\nexamined or further evidence of any person already
\nexamined is essential to the just decision of the case, it is
\nits duty to take such evidence.  The exercise of the power
\nconferred by S. 540 is conditioned by the requirement
\nthat such exercise would be essential to the just decision
\nof the case.”\n<\/p>\n
10.\tIn Jamatraj Kewalji Govani v. State of Maharashtra AIR<\/a> 1968
\nSC 178 after analysis of the provision of Section it was held as under
\nin para 10 of the reports :\n<\/p>\n
“Section 540 is intended to be wide as the repeated use of
\nthe word ‘any’ throughout its length clearly indicates. The
\nsection is in two parts. The first part gives a discretionary
\npower but the latter part is mandatory. The use of the
\nword ‘may’ in the first part and of the word ‘shall’ in the
\nsecond firmly establishes this difference. Under the first
\npart, which is permissive, the court may act in one of
\nthree ways : (a) summon any person as a witness, (b)
\nexamine any person present in court although not
\nsummoned, and (c) recall or re-examine a witness already
\nexamined. The second part is obligatory and compels the
\nCourt to act in these three ways or any one of them if the
\njust decision of the case demands it. As the section stands
\nthere is no limitation on the power of the Court arising
\nfrom the stage to which the trial may have reached,
\nprovided the Court is bona fide of the opinion that for the
\njust decision of the case, the step must be taken. It is
\nclear that the requirement of just decision of the case
\ndoes not limit the action to some thing in the interest of
\nthe accused only. The action may equally benefit the
\nprosecution. ……………”\n<\/p>\n
11.\tIn Mohanlal Shamji Soni v. Union of India & Anr. AIR 1991
\nSC 1346 it was observed that it is a cardinal rule in the law of
\nevidence that the best available evidence should be brought before the
\nCourt to prove a fact or the points in issue.   But it is left either for the
\nprosecution or for the defence to establish its respective case by
\nadducing the best available evidence and the Court is not empowered
\nunder the provisions of the Code to compel either the prosecution or
\nthe defence to examine any particular witness or witnesses on their
\nsides.  It is the duty of a Court not only to do justice but also to ensure
\nthat justice is being done.  It was further held that the second part of
\nthe Section does not allow for any discretion but it binds and compels
\nthe Court to take any of the aforementioned two steps if the fresh
\nevidence to be obtained is essential to the just decision of the case.  It
\nwas emphasized that power is circumscribed by the principle that
\nunderlines Section 311 Cr.P.C., namely, evidence to be obtained
\nshould appear to the court essential to a just decision of the case by
\ngetting at the truth by all lawful means.   Further, that the power must
\nbe used judicially and not capriciously or arbitrarily.   It was further
\nobserved that evidence should not be received as a disguise for a
\nretrial or to change the nature of the case against either of the parties
\nand the discretion of the Court must obviously be dictated by
\nexigency of the situation and fair play and good sense appear to be the
\nsafe guides and that only the requirement of justice command the
\nexamination of any person which would depend on the facts and
\ncircumstances of each case.  Rajendra Prasad v. Narcotic Cell<\/a> (1999)
\n6 SCC 110 is a decision where the contention that the prosecution
\nshould not be permitted to fill in lacuna was examined having regard
\nto the peculiar facts where the exercise of power under Section 311
\nCr.P.C. second time was challenged and, therefore, it is necessary to
\nnotice the facts of the case in brief.   The accused along with some
\nother persons was facing trial for offences under Sections 21, 25 and
\n29 of the NDPS Act.   The prosecution and the defence closed their
\nevidence on 19.9.1997 and the case was posted for further steps and
\non 7.3.1998, after few more dates, at the instance of the prosecution
\ntwo witnesses who had already been examined were reexamined for
\nthe purpose of proving certain documents for prosecution.   After they
\nhad been examined and the evidence had been closed, the case was
\nposted for hearing arguments, which was heard in piecemeal on
\ndifferent dates.   Subsequently on 7.6.1998, the Public Prosecutor
\nmoved an application seeking permission to examine Dalip Singh, S.I.
\nand two other persons.  Though the application was strongly opposed
\nby the counsel for the accused, the trial Court allowed the same in
\nexercise of its power under Section 311 Cr.P.C. and summons were
\nissued to the witnesses.  The challenge raised to the order of the
\nlearned Sessions Judge by filing a revision was dismissed by the High
\nCourt.  In appeal before this Court it was contended that in the garb of
\nexercise of power under Section 311 Cr.P.C., a Court cannot allow the
\nprosecution to reexamine prosecution witnesses in order to fill up
\nlacana in the case specially having regard to the fact that Dalip Singh
\nwitness was never tendered by the prosecution for cross-examination
\nand PW.4 Suresh Chand Sharma had also not been cross-examined by
\nthe State.  Repelling the contention raised on behalf of the accused it
\nwas held :\n<\/p>\n
“7.\tIt is a common experience in criminal courts that
\ndefence counsel would raise objections whenever courts
\nexercise powers under Section 311 of the Code or under
\nSection 165 of the Evidence Act, 1872 by saying that the
\ncourt could not “fill the lacuna in the prosecution case”.
\nA lacuna in the prosecution is not to be equated with the
\nfallout of an oversight committed by a Public Prosecutor
\nduring trial, either in producing relevant materials or in
\neliciting relevant answers from witnesses.  The adage “to
\nerr is human” is the recognition of the possibility of
\nmaking mistakes to which humans are prone.  A
\ncorollary of any such laches or mistakes during the
\nconducting of a case cannot be understood as a lacuna
\nwhich a court cannot fill up.\n<\/p>\n
8.\tLacuna in the prosecution must be understood as
\nthe inherent weakness or a latent wedge in the matrix of
\nthe prosecution case.  The advantage of it should
\nnormally go to the accused in the trial of the case, but an
\noversight in the management of the prosecution cannot
\nbe treated as irreparable lacuna.   No party in a trial can
\nbe foreclosed from correcting errors.  If proper evidence
\nwas not adduced or a relevant material was not brought
\non record due to any inadvertence, the court should be
\nmagnanimous in permitting such mistakes to be rectified.
\nAfter all, function of the criminal court is administration
\nof criminal justice and not to count errors committed by
\nthe parties or to find out and declare who among the
\nparties performed better.”\n<\/p>\n
\tFinally, it was held that the proposition that the Court cannot
\nexercise power of re-summoning any witness if once that power was
\nexercised, cannot be accepted nor can the power be whittled down
\nmerely on the ground that the prosecution discovered laches only
\nwhen the defence highlighted them during arguments.  Similar view
\nhas been taken in P. Chhaganlal Daga v. M. Sanjay Shaw<\/a> (2003) 11
\nSCC 486 where permission granted by the Court to a complainant to
\nproduce additional material after evidence had been closed and case
\nwas posted for judgment was upheld repelling the contention that
\nproduction of the document at that belated stage would amount to
\nfilling in a lacuna.\n<\/p>\n
12.\tA conspectus of authorities referred to above would show that
\nthe principle is well settled that the exercise of power under Section
\n311 Cr.P.C. should be resorted to only with the object of finding out
\nthe truth or obtaining proper proof of such facts which lead to a just
\nand correct decision of the case, this being the primary duty of a
\ncriminal court.  Calling a witness or re-examining a witness already
\nexamined for the purpose of finding out the truth in order to enable
\nthe Court to arrive at a just decision of the case cannot be dubbed as
\n“filling in a lacuna in prosecution case” unless the facts and
\ncircumstances of the case make it apparent that the exercise of power
\nby the Court would result in causing serious prejudice to the accused
\nresulting in miscarriage of justice.\n<\/p>\n
13.\tThe charge-sheet submitted by the police under Section 173
\nCr.P.C. after completion of investigation contains the statements of
\nthe witnesses as recorded under Section 161 Cr.P.C. and in a case
\nexclusively triable by court of Sessions there is a duty enjoined on a
\nmagistrate to furnish to the accused, free of cost, a copy of the police
\nreport including a copy of the FIR, statement of the witnesses under
\nSection 161 Cr.P.C. and other documents as mentioned in Section 207
\nCr.P.C.  It is on the basis of the charge-sheet that the magistrate takes
\ncognizance of the offence under Section 190(1)(b) Cr.P.C.  Normally,
\nthe investigating agency cannot visualize at that stage what will be the
\nnature of defence which an accused will take in his statement under
\nSection 313 Cr.P.C. as the said stage comes after the entire
\nprosecution evidence has been recorded.  The prosecution is only
\nrequired to establish its case by leading oral and documentary
\nevidence in support thereof. While leading evidence the prosecution
\nmay not be in a position to anticipate or foresee the nature of defence
\nwhich may be taken by the accused and evidence which he may lead
\nto substantiate the same. Therefore, it is neither expected to lead
\nnegative evidence nor it is possible for it to lead such evidence so as
\nto demolish the plea which may possibly be taken by the accused in
\nhis defence.  This being the normal situation, an application moved by
\nthe prosecution for summoning a witness under Section 311 Cr.P.C.,
\nafter the defence evidence has been recorded, should not be branded
\nas “an attempt by the prosecution to fill in a lacuna”.\n<\/p>\n
14. \tIn the case in hand the respondent has raised a plea of alibi that
\nat the time of the alleged incident he was present in the chamber of the
\nCollector, Dadra & Nagar Haveli, Silvassa, who had called a meeting.
\nIn fact, the respondent has led evidence on the said point by
\nexamining DW.1 and DW.2. The evidence of the then Collector,
\nDadra and Nagar Haveli might as well support the defence taken by
\nthe respondent.  In such circumstances if the learned Sessions Judge
\nwas of the opinion that in order to find out the truth, the evidence of
\nthe Collector was necessary, no exception can be taken to the course
\nadopted by him.   It was for the learned Sessions Judge to decide
\nwhether for just and fair decision of the case, the evidence of the
\nCollector is necessary or not and he having come to a conclusion that
\nevidence of the Collector was necessary for just and fair decision of
\nthe case, the order passed by him could not have been set aside by the
\nHigh Court on the ground that it would amount to filling in lacuna in
\nthe prosecution case.   We are clearly of the opinion that in the facts
\nand circumstances of the case, the examination of the then Collector,
\nDadra and Nagar Haveli cannot be termed as filling in lacuna in the
\nprosecution case.  The learned Sessions Judge rightly observed that
\nthe evidence of the Collector will not cause any prejudice to the
\nrespondent as he had himself pleaded alibi and had led evidence to
\nsubstantiate the same.  We are, therefore, of the opinion that the High
\nCourt clearly erred in setting aside the order passed by the learned
\nSessions Judge.\n<\/p>\n
15.\tIn the result, the appeal is allowed and the judgment and order
\ndated 8.10.2004 passed by the High Court is set aside and the order
\ndated 12.8.2004 of the learned Sessions Judge is restored.
\n27929<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India U.T. Of Dadra & Haveli & Anr vs Fatehsinh Mohansinh Chauhan on 14 August, 2006 Author: G P Mathur Bench: G.P. Mathur, A.K. Mathur 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 & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-40785","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nU.T. 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