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2018 DIGILAW 618 (KER)

Padhmanabhan v. State of Kerala

2018-07-31

B.SUDHEENDRA KUMAR

body2018
ORDER : 1. The petitioner is the first accused in C.C. No. 30 of 2016 on the files of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha. The offences alleged are offences under Sections 13 (1)(c) and (d) r/w Section 13 (2) of the Prevention of Corruption Act and Sections 409, 468, 471 and 477A r/w Section 120B IPC. 2. After closing the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. Thereafter, the accused was called upon to enter on defence. However, no evidence was adduced on the side of the accused. During the course of final argument, the prosecution filed C.M.P. No. 159 of 2018, praying for recalling PW-6 stating that there was no identification of the accused by the witness. The court below as per Annexure D order, allowed the said petition, against which this Crl.M.C. has been filed. 3. Heard both sides. 4. The learned counsel for the petitioner relied on the decision of this Court in Vijayadas K.V. vs. State of Kerala, 2017 (4) KHC 91 and argued that the recalling and the re-examination of a witness cannot be done to fill up the lacuna or to cover up the defect or to rectify the mistake crept in the evidence and in the said circumstances, the court below was not justified in recalling PW-6 for the purpose of identification of the witnesses. In Vijayadas K.V. (supra), the trial court had re-opened the evidence suo motu after the final hearing and examined some witnesses who were already given up by the prosecution. Thereafter, the accused was examined under Section 313 of Cr.P.C. After legal formalities, the case was posted for judgment. At that time, the court re-opened the case again suo motu by order under challenge in that case. In Vijayadas K.V. (supra), the court observed thus: “Of course, the trial court has to play an active role during the trial of the case and the court is not a mere spectator or an umpire during the trial of the case, but certainly not to this extent as the case was re-opened twice when posted for judgment.” 5. In Vijayadas (supra), the case was re-opened twice suo motu by the court after posting the case for judgment. The facts in the present case are different from the facts in Vijayadas (supra). In Vijayadas (supra), the case was re-opened twice suo motu by the court after posting the case for judgment. The facts in the present case are different from the facts in Vijayadas (supra). In this case, during the course of argument itself, the above C.M.P. was filed by the learned legal advisor. The Apex Court in Rejendra Prasad vs. Narcotic Cell, 1999 KHC 417 considered the term lacuna and held thus in paragraph 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 over sight 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.” 6. The Apex Court in Mannan Sk. and Others vs. State of West Bengal and Another, 2014 KHC 4441 followed the above said ratio in Rejendra Prasad (supra). The Apex Court in Zahira Habibulla H. Sheikh and Another vs. State of Gujarat and Others, AIR 2004 SC 3114 considered the scope of Section 311 and held thus: “Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of S.311 but only to sub-serve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.” 7. In this case, the court below was convinced that the recalling of PW6 was essential for the just decision of the case. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.” 7. In this case, the court below was convinced that the recalling of PW6 was essential for the just decision of the case. It appears that the evidence with regard to the identification could not be brought on record due to an inadvertence. Therefore, the court must be magnanimous in permitting such mistakes to be rectified, as the function of the criminal court is administration of criminal justice and not to count errors committed by the parties. No party in a criminal trial can be foreclosed from correcting errors. Since the omission in the matter of identification occurred only due to an oversight, the said oversight in the management of prosecution cannot be treated as irreparable lacuna. The object of Section 311 Cr.P.C. is to enable the court to arrive at the truth, irrespective of the fact that the prosecution or the defence has failed to produce some evidence, which is necessary for a just and proper disposal of the case. Since the application for recalling the witness was necessitated only to rectify an inadvertent mistake on the part of the learned Public Prosecutor, it is the duty of the court to permit such mistake to be rectified. Permitting to rectify such mistakes cannot be equated with filling up of a lacuna in the prosecution case. In view of the above reason, I am of the view that the court below was perfectly correct in permitting the prosecution to rectify the inadvertent mistake. In view of the above reason, I am of the view that the discretion exercised by the court below in this case under Section 311 of Cr.P.C cannot be said to be arbitrary or unreasonable, warranting interference by this Court. 8. In the result, this Crl. M.C. stands dismissed.