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2018 DIGILAW 732 (HP)

Manoj Kumar v. State Of Himachal Pradesh

2018-04-24

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J —The present petition, under Section 397, read with Section 401 of the Code of Criminal Procedure, is maintained by the petitioner/accused (hereinafter to be called as "the accused") , against the order, dated 05.08.2016, passed by learned Additional Session Judge-II, Shimla, in Criminal Case No. 36-S/7 of 2015, whereby an application filed by the respondent/State of H.P., under Section 311 Cr. P.C, for seeking permission to re-examine the Reader, posted in the Office of Deputy Superintendent of Police, Chopal, District Shimla, H.P., alongwith special report, bearing signature of Dy. S.P., Chopal and Diary Register, dated 20.04.2011, has been allowed. 2. The brief facts of the case are that the accused alongwith another co-accused are facing trial under Section 22 of Narcotics Drug and Psychotropic Substance Act, read with Section 34 of IPC before learned Additional Session Judge-II, Shimla and in the said Session trial, when almost all the witnesses included Investigation Officer had been examined, prosecution moved an application, under Section 311 Cr. P.C., for seeking permission to re-examine the Reader to the Office of Dy. S.P., Chopal alongwith special report and diary register, dated 20.04.2011. Wherein a prayer has been made by the prosecution that it was noticed during recording of statement of I.O. that special report of this case, placed on the case file has not been signed by Dy. S.P., Chopal. 3. The application is resisted and contested by the accused by filing reply, wherein it has been averred that before filing the application, prosecution has not verified the fact from the record of the Court, nor final report, under Section 173 Cr. P.C. has been examined and the present application has been moved just to delay the decision of the present case and filling the lacuna in the prosecution case. It has been further averred in the reply that the reader to Dy. S.P. Chopal has already been examined as PW-3 and alleged document has been exhibited as PW-3/A and abstract of diary register has been proved and exhibited as PW-3/B. The original record from the Office of Dy. S.P. has been produced in the Court without the signature of Dy. S.P., therefore the present application is based on wrong facts and the same deserves to be dismissed alongwith exemplary costs. 4. The learned Court below vide order dated 05.08.2016 allowed the application, under Section 311 Cr. S.P. has been produced in the Court without the signature of Dy. S.P., therefore the present application is based on wrong facts and the same deserves to be dismissed alongwith exemplary costs. 4. The learned Court below vide order dated 05.08.2016 allowed the application, under Section 311 Cr. P.C. Hence the present petition. 5. I have heard the learned counsel for the parties and gone through the record available with this Court in detail. 6. Learned counsel for the petitioner has argued that the order, passed by the learned Court below is against the well settled law that the prosecution cannot be allowed to improve its case and filling the lacuna by moving an application. He has further argued that the order, passed by the learned Court below, in an application under Section 311 Cr. P.C., is liable to be set aside, as the same is against the legal position. On the other, hand learned Additional Advocate General has argued that the application has been moved to prove on record, the document, which could not be produced on record earlier, due to just a slip and the prosecution only want to place on record the special report duly signed by Dy. S.P. Chopal, in place of previous report. In rebuttal, learned counsel for the petitioner has argued that reexamination of the witness alongwith special report, at this stage is an afterthought and for filling the lacuna in the prosecution case, therefore, the present petition is required to be allowed and the order, passed by the learned Court below on an application deserves to be dismissed. 7. The prosecution has moved an application, under Section 311 Cr. P.C. with a prayer that inadvertently the Investigation Officer has placed the special report which is not signed by the then Dy. S.P. Chopal, whereas there is an entry at Sl. No. 5, dated 20.04.2011 in diary register in the office of Dy. S.P. Chopal that the special report is duly signed by the then Dy. S.P. Chopal and no prejudice shall be caused to the accused in case the special report, which is duly signed by the then Dy. S.P. is placed on record and reader to Dy. S.P. Chopal be summoned as a witness in this case. 8. S.P. Chopal that the special report is duly signed by the then Dy. S.P. Chopal and no prejudice shall be caused to the accused in case the special report, which is duly signed by the then Dy. S.P. is placed on record and reader to Dy. S.P. Chopal be summoned as a witness in this case. 8. The case of the accused before the learned Court below was that the Investigation Officer has not stated anything regarding special report, infact the same was on record prior to his statement and the said fact is also evident from the record. Further PW-3, during recording of statement before the learned Court below had admitted that original record is there and as per original record, special report was not signed by Dy. S.P. and there is overwriting at Sl. No. 5. 9. This Court has gone through the statement of PW3, L.C. Nisha, No. 1442 and PW-8, A.S.I. Sunder Singh, Investigation Officer of the case. The Investigation Officer in his statement has not stated that he has not produced on record the original special report, signed by Dy. S.P. Chopal and after getting his statement recorded, the present application has been moved. Therefore, it appears that the application was moved for filling the lacuna, which has occurred in the prosecution case. The right, which has accrued to the accused, cannot be taken away by allowing the application, as argued by the learned counsel for the petitioner. This Court finds that as the application filed is not for explaining the evidence, which has already been adduced, but to create new evidence against the accused, so it can be said that the application has been moved for filling the lacuna. Accordingly, the present criminal revision petition is allowed and order, dated 05.08.2016, passed in an application, under Section 311 Cr. P.C. is set aside. Parties through their counsel are directed to appear before the learned trial Court on 10th May, 2018. 10. The revision petition, so also pending application(s) , if any, shall stand(s) disposed of accordingly.