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2006 DIGILAW 471 (PAT)

Md. Shams Anwar @ Guddu v. State of Bihar

2006-05-16

body2006
ORDER 1. Heard learned counsel for the petitioner and the learned counsel appearing on behalf of Opposite Party No. 2 as also the learned counsel for the State. 2. The petitioner is aggrieved by the order dated 10.9.2003 passed by the 4th Addl. Sessions Judge, Bhagalpur in Criminal Revision No. 115 of 2003 preferred by Opposite Party no. 2, up setting the order dated 25.2.2003 passed by the Judl. Magistrate, 1st Class, Bhagalpur in G.R. Case No. 161 of 2000. The Judicial Magistrate having allowed the application of the prosecution for production of the material exhibit, the weapon in question, in exercise of the powers under Section 311 of the Code of Criminal Procedure. 3. An F.I.R. came to be lodged on 25.1.2000 under Section 25(1-B) of the Arms Act. The seizure-list was then prepared with regard to the weapon in question on the date of occurrence itself at about 11.00 A.M. The trial proceeded. The seizure-list was marked as exhibit-4 and was proved by the author of the same P.W. 7 on 9.1.2002. The material exhibit was however not produced in court. Adjournments were granted to the Addl. P.P. for production of the material exhibit. It appears that the Magistrate lastly granted time for production of the material exhibit and the matter was fixed on 22.5.2002 under Section 313 of the Cr.P.C. for recording the statement of the accused. On the said date an application was filed by the prosecution under Section 311 of the Cr.P.C. to have the weapon in question exhibited. This came to be allowed on 25.2.2003 by the learned Magistrate. Aggrieved with the same the Opposite Party no. 2 preferred Criminal Revision No. 115 of 2003. The revisional court arrived at the conclusion that to permit the material exhibit to be exhibited when the prosecution had failed to produce it despite repeated adjournments amounted to permitting the prosecution to fill up of a lacuna in the evidence. According to the revisional court, this was not permissible in law. Consequently the order of the Judicial Magistrate was set aside. 4. Learned counsel for the petitioner submits that the revisional court erred in law by not appreciating that the weapon in question had been seized on the date of the occurrence itself and seizure-list was prepared. The seizure-list had already been duly exhibited. These were issues which have not been discussed by the revisional court. 4. Learned counsel for the petitioner submits that the revisional court erred in law by not appreciating that the weapon in question had been seized on the date of the occurrence itself and seizure-list was prepared. The seizure-list had already been duly exhibited. These were issues which have not been discussed by the revisional court. In view of the fact that the seizure of the weapon was corroborated by the seizure-list which also stood proved, no prejudice could be said to have been caused to Opposite Party no. 2 by production of the exhibit. Section 311 of the Cr.P.C. could be exercised at any stage of the trial upon the satisfaction of the court that it was necessary in the ends of justice. In the given facts of the case it was not an attempt to filling up the lacuna. 5. Learned counsel for Opposite Party No.2 opposing the application submits that the prosecution had enough latitude to produce the material exhibit but it failed to produce the same. The trial is at the concluding stage. No sufficient explanation has been given for such production at a belated stage. This would cause prejudice to the case of the Opposite Party no. 2. 6. The Court has considered the submissions of the parties. The powers of the Court under Section 311 Cr.P.C. are discretionary in nature and can be exercised at any stage of the trial. The only requirement was exercise of judicious discretion in the interest of justice to enable the court to arrive at a just decision of the case. 7. In the facts of the present case it is apparent that the weapon in question was seized at the time of occurrence. A seizure-list was duly prepared. The seizurelist has also been proved and marked as exhibit 4 by its author. The court below recorded its satisfaction that it was essential in the interest of justice to allow the application under Section 311 of the Cr.P.C. 8. This Court can do no better than to refer the relevant extract from paragraph 7 of the judgment relied upon by the revisional court reported in 1999(2) PLJR 81 SC in (Rajendra Prasad Vs. The Narcotic Cell through its Officer-in-charge, Delhi). This Court can do no better than to refer the relevant extract from paragraph 7 of the judgment relied upon by the revisional court reported in 1999(2) PLJR 81 SC in (Rajendra Prasad Vs. The Narcotic Cell through its Officer-in-charge, Delhi). Paragraph 7 : ".....A lacuna in prosecution is not to be equated with the fallout of an over-sight 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 human, beings are prone. 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." 9. Clearly in the present case the learned Magistrate was satisfied that belated production was only a fall out of an oversight of relevant materials. 10. The Supreme Court more recently in a judgment reported in 2006(3) SCC 374 (Zahira Habibullah Shekh (5) and Anr.Vs. State of Gujarat & Ors.) while explaining the purpose and scope of Section 311 of the Cr.P.C. at paragraphs 27 and 28 of the judgment has held that the underlying purpose of Section 311 Cr.P.C. was to prevent the failure of justice by permitting valuable evidence to be brought on record. Sometimes the order of the court may result in what is thought to be filling of loopholes. That was purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge. 11. This Court appropriately quotes below paragraphs 27 and 28 of the judgment: Para 27:-“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record of leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is not limited only for the benefit of the accused and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” Para 28.-"As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. 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 side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge." 12. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge." 12. In view of the aforesaid discussion this Court finds it difficult to sustain the order dated 10.9.2003 in Cr. Revision No. 115 of 2003 passed by Addl. Sessions Judge. The same is accordingly set aside. The application stands allowed.