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2017 DIGILAW 1958 (RAJ)

Piyush Dosi v. State of Rajasthan

2017-09-01

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. The petitioner has preferred this misc. petition under section 482 of Cr.P.C., 1973 against the order dated 25.11.2016 passed by learned Additional District & Sessions Judge No. 2, Barmer, in Criminal Revision No. 53/15 (31/13, 98/12, 54/12), who whereby dismissed the revision petition and upheld the order dated 16.07.2012, passed by learned Chief Judicial Magistrate, Barmer, in Criminal Misc. Petition No. 193/2003, who whereby dismissed the application of the petitioner filed under section 311 of Cr.P.C., 1973. 2. No one has put in appearance on behalf of the respondent even after the service is compete. 3. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by this Court in Ganpat Lal Choudhary v. State of Rajasthan & Anr. (Criminal misc. Petition No. 2142/2015) decided on 24.04.2017. 4. This Court on 24.04.2017 has passed the following order in Ganpat Lal Choudhary v. State & Anr. (Supra):- 1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 20.07.2015 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No. 2, Jodhpur Metropolitan in criminal complaint case No. 381/2013 whereby learned trial court has rejected the application filed by the petitioner under Section 311 Cr.P.C., 1973 for his re-examination. 2. No one has put in appearance on behalf of the respondent even after the service is complete. 3. Counsel for the petitioner has relied upon the judgment of P. Chhaganlal Daga v. M. Sanjay Shaw reported in (2003) 11 SCC 486. The relevant portion of the judgment reads as under: "3. In a prosecution launched by the appellant under section 138 of the Negotiable Instruments Act, 1881, the appellant completed the evidence including his own examination, cross-examination and re-examination. During such cross-examination the respondent-accused contested the question of service of notice envisaged under section 138 of the Negotiable Instruments Act. The acknowledgement card produced by the complainant contained a signature which the accused disowned as his. After the arguments concluded and the case was posted for judgment the complainant moved the trial court for reception of additional material (by producing a postal receipt) in exercise of the powers under section 311 of the Code of Criminal Procedure, 1973. The acknowledgement card produced by the complainant contained a signature which the accused disowned as his. After the arguments concluded and the case was posted for judgment the complainant moved the trial court for reception of additional material (by producing a postal receipt) in exercise of the powers under section 311 of the Code of Criminal Procedure, 1973. The trial court felt that the said material was necessary for the just decision of the case and hence allowed the same to come on record. The said order of the trial magistrate was challenged by the accused before the High Court. 4. In the impugned judgment a learned single judge of the High Court held that production of the postal receipt at the said belated stage was only "to fill up the lacuna" and hence the same is impermissible in law. He, therefore, interfered with the order passed by the trial court and permission to produce the postal receipt was countermanded. The learned single judge has stated the following regarding that aspect : After the trial is over, if the petitioner is permitted to produce the postal receipt, that would only prejudice the right of the accused. Further, the postal receipt is sought to be produced only to fill up the lacuna or letting in corroboration of the evidence, if any available regarding this aspect. I consider that the respondent cannot be allowed to adopt such a course." 5. In Rajendra Prasad v. Narcotic Cell, this court has explained what is meant by lacuna in the prosecution case. The following passage of the said decision will be apposite in this contest: (page 113) : "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 fall out 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 lacuna in the prosecution is not to be equated with the fall out 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." 6. In deciding so, this court has taken into account some of the earlier decisions of this court including Mohanlal Shamji Soni v. Union of India. In the said decision this court had observed that the power to receive evidence in exercise of Section 311 of the Code could be exercised "even if evidence on both sides is closed" and such jurisdiction of the court is dictated by the exigency of the situation and fair play. The only factor which should govern the court in exercise of powers under Section 311 should be whether such material is essential for the just decision of the case. Even a reading of Section 311 of the Code would show that Parliament has studded the said provision lavishly with the word "any" at different places. This would also indicate the widest range of power conferred on the court in that matter. It is so stated by this court in Ram Chander v. State of Haryana. 7. We are of the opinion that the learned single judge of the High Court has improperly interfered with the order passed by the trial court. It is unfortunate that even after his attention was drawn to the decision of this court in Rajendra Prasad v. Narcotic Cell he has chosen to sideline the dictum contained therein." 3. The limited arguments of counsel for the petitioner is that in case of the document being of necessary nature in the interest of justice then the powers under Section 311 Cr.P.C., 1973 ought to have been invoked by the learned court below. 4. The limited arguments of counsel for the petitioner is that in case of the document being of necessary nature in the interest of justice then the powers under Section 311 Cr.P.C., 1973 ought to have been invoked by the learned court below. 4. After hearing counsel for the petitioner and perusing the precedent law cited, this Court is of the opinion that for the best of the reasons, the application under Section 311 Cr.P.C., 1973 should not be refused as the precedent law cited makes it clear that even after completion of the trial and at the final stage, the court should ought to have permitted the nature of additional material and was within the powers of the learned trial court. The Hon'ble Apex Court has gone to the stand that even there is an exemption that the production of the said document and at that belated stage was only to fill up a lacuna then also section 311 of the Cr.P.C., 1973 ought to have been invoked. 5. Thus, in light of the aforesaid discussion, this Court deems it appropriate to quash and set aside the order dated 20.07.2015 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No. 2 Jodhpur Metropolitan in criminal complaint case No. 381/2013 and thus, we allow the application filed by the petitioner under Section 311 Cr.P.C., 1973 and direct the learned trial court to proceed accordingly after taking the additional material on record. 6. The criminal misc. petition is accordingly allowed.