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2005 DIGILAW 333 (ORI)

Bimal Krushna Tripathy v. State of Orissa

2005-05-19

I.M.QUDDUSI

body2005
JUDGMENT I. M. QUDDUSI, J. — The petitioner who is an accused in Nabarangpur P.S.Case No. 137 of 1996 corresponding to G.R.Case No. 395 of 1996 pending before the learned Chief Judicial Magistrate, Nabarangpur for the offences punishable under Sections 420, 468 and 472 of the Indian Penal Code has filed this petition under Section 482, Cr.P.C. for quashing the impugned order dated 3.11.2004 passed by the learned Chief Judicial Magistrate, Naba¬rangpur under Section 311, Cr.P.C. on the date of delivery of judgment, summoning the material witnesses i.e. the then Employ¬ment Exchange Officer and the then I.I.C., Nabarangpur P.S. and calling for the required primary document allegedly to fill up the lacuna of the prosecution case. 2. The brief facts of the case are that the Establishment Officer, Collectorate, Nabarangpur lodged a First Information Report at Nabarangpur P.S. which was treated as Nabarangpur P.S.Case No. 137 of 1996, corresponding to G.R.Case No. 395 of 1996 in the Court of learned S.D.J.M., Nabarangpur for the of¬fences punishable under Sections 420/468/471, IPC. After conclu¬sion of the investigation the Police filed a charge-sheet against the petitioner under Section 173 (2), Cr.P.C. Consequently the trial was conducted against the petitioner in the Court of the Chief Judicial Magistrate, Nabarangpur in which the prosecution examined 12 witnesses and marked several documents as exhibits. The prosecution evidence was closed on 8.6.2004 on the basis of memo filed by the learned A.P.P. Thereafter on 9.6.2004 the petitioner was examined under Section 313, Cr.P.C. on 23.6.2004 no evidence was produced by the defence and as such, the case was fixed to 12.7.2004 for argument. Thereafter the case was ad¬journed on the request of the prosecution and finally it was heard on 7.10.2004. The learned Chief Judicial Magistrate fixed 3.11.2004 for delivery of judgment. But instead of delivering the judgment he passed the orders to summon two witnesses and called for the required primary document. The order passed by him is re-produced as under : “Accused is present. The record was today posted for judgment. The learned Chief Judicial Magistrate fixed 3.11.2004 for delivery of judgment. But instead of delivering the judgment he passed the orders to summon two witnesses and called for the required primary document. The order passed by him is re-produced as under : “Accused is present. The record was today posted for judgment. While preparing for judgment, it was found that the primary document like the forged Xerox copy with which the ac¬cused enabled his registration in Employment Exchange through cheating has not been proved in this case and further two materi¬al witnesses i.e., the then Employment Exchange Officer who registered the name of the accused on the basis of such forged documents and the then I.I.C., Nabarangpur P.S. who attested such forged documents have not been examined in this case. The examination of the above two witnesses and proof of the above stated primary documents are essential for the just decision of the case and therefore this Court invokes its power under Section 311, Cr.P.C. to summon these witnesses and to call for the required primary document. Accordingly, judgment could not be made in this case without examination of these witnesses. Accordingly issue summons to the witnesses in question and call for the document in question fixing 29.11.2004 for hearing of the case.” 3. From the perusal of the above quoted order passed by the learned Chief Judicial Magistrate, it is clear that no request was made on behalf of the prosecution to summon witnesses or for production of the document and it was the Court which has decided to summon the witnesses because of the reason that the prosecution did not produce the necessary document and the above mentioned two witnesses in support of its case and in case these witnesses and document are not summoned, there will remain lacuna on the part of the prosecution and hence the learned Chief Judicial Magistrate, to fill up the lacuna of the prosecution, passed the impugned order. 4. It is well settled law and there is a catena of decisions of Hon’ble Apex Court that the Court should not permit lacuna in prosecution evidence to be filled up. 5. In the case of Rajendra Prasad v. Narcotic Cell reported in AIR 1999 SC 2292 the Apex Court has held that the conventional concept is that Court should not permit lacuna in prosecution evidence to be filled up. 5. In the case of Rajendra Prasad v. Narcotic Cell reported in AIR 1999 SC 2292 the Apex Court has held that the conventional concept is that Court should not permit lacuna in prosecution evidence to be filled up. The Hon’ble Apex Court in that case has laid down the difference between “lacuna in prosecution” and “correction of errors” and held that a lacuna in prosecution is not to be equated with the fall out of an over¬sight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The advantage ‘to err is human’ is the recognition of the possibility of making mistakes to which human beings are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. 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. 6. The Court can direct for summoning of document or witness suo motu only if in its opinion the document or the statement of the witness would be material in arriving at a just and proper decision in the facts and circumstances of the case but in that case the witness to be examined by the Court will be a Court witness. Since in the instant matter no application has been moved by the prosecution and the learned Court below has summoned a document and also the witnesses suo motu which was left to be produced by the prosecution and in the absence of the same there is likely to be a lacuna in prosecution case, the Court would not have summoned the case documents or the witnesses just to fill up that lacuna. 7. In view of the above-mentioned facts and circumstances, the impugned order passed by the learned Court below is liable to be quashed. 8. In the result, the petition is allowed in part. The impugned order dated 3.11.2004 passed by the learned Chief Judi¬cial Magistrate, Nabarangpur in G.R.Case No. 395 of 1996 is quashed. However, it is open for the prosecution to move any application or the Court to summon any witness, as Court witness, in the light of the observations made above. 8. In the result, the petition is allowed in part. The impugned order dated 3.11.2004 passed by the learned Chief Judi¬cial Magistrate, Nabarangpur in G.R.Case No. 395 of 1996 is quashed. However, it is open for the prosecution to move any application or the Court to summon any witness, as Court witness, in the light of the observations made above. Petition allowed in part.