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2020 DIGILAW 438 (MP)

Pramod V Uddand v. State Of Madhya Pradesh

2020-03-19

VANDANA KASREKAR

body2020
JUDGMENT Vandana Kasrekar, J. - By this present Miscellaneous Criminal Case under Section 482 of the Cr.P.C. the applicant is challenging the order dated 23.11.2019 passed by the Additional Sessions Judge, Sarangpur, District-Rajgarh in Criminal Case No. 31/2013, whereby the application preferred by the prosecution under Section 311 of the Cr.P.C has been allowed. 2. Brief facts of the case are that, the petitioner was working as a Branch Manager in the State Bank of India Sarangpur Branch, District-Rajgarh. On 2.10.2012 a report has been lodged by the then Branch Manager of the Branch namely Mr. Satyendra Sharma that the petitioner along with other accused persons including some Warehouse owners has played fraud with the bank by opening forged accounts in the name of farmers on the basis of the stock available in the Warehouse belonging to the other accused in the matter. First Information Report has been lodged against the petitioner and the other accused persons for offence under Sections 420, 467, 468 and 120-B of the IPC and the petitioner has been arrested and subsequently the bail has been granted in his favour. It is further submitted that the prosecution has filed its final report under Section 173 (2) of the Cr.P.C. The prosecution agency has also submitted its list of 16 witnesses in the matter. Thereafter the trial Court has framed the charges against the present petitioner under Sections 409 and 120-B of the IPC. The matter has been fixed for the prosecution evidence. The prosecution has recorded the examination-in-Chief of some of its witness and the cross-examination of the aforesaid witness has also been duly conducted on behalf of the petitioner and the other accused persons. That, on 30.8.2019 the prosecution has filed an application under Section 311 of the Cr.P.C. and prayed for examination of further more 25 witnesses in the matter on the ground that their names could not be cited under the trial program by mistake. However, their statements were not recorded by investigating agency under Section 161 of the Cr.P.C. during investigation. The trial Court has allowed the said application vide order dated 23.11.2019. Being aggrieved by the said order, the petitioner has filed the present petition. 3. However, their statements were not recorded by investigating agency under Section 161 of the Cr.P.C. during investigation. The trial Court has allowed the said application vide order dated 23.11.2019. Being aggrieved by the said order, the petitioner has filed the present petition. 3. Learned counsel for the petitioner has submitted that the trial court has failed to consider the object of Section 173(2) of Cr.P.C. and also failed to appreciate that no further investigation has been done under Section 173(8) of the Cr.P.C.and has also failed to appreciate that the interpretation of Section 311 of Cr.P.C. must be done in consonance with the provisions of Section 173(2) Cr.P.C. there is no over ridding effect has been given to Section 311 of the Cr.P.C. She further submitted that the court below has also failed to see the prejudice caused to the petitioner if the statements of these witnesses were recorded and the application has been filed by the prosecution only to fill up the lacuna. In such circumstances, she prayed that the impugned order be set aside. She has relied on the judgment passed by the Madras High Court in the case of State by Inspector of Police vs. S. Sankaran and another, 2005 CrLJ 1474 . 4. Learned Govt. Advocate has supported the order passed by the court below and submitted that the court below has not committed any error in passing the impugned order. He further submitted that name of the witnesses, who the prosecution sought to be examined. Their names have been included in the FIR and their names have also been included in the proposed witnesses in the charge sheet and the statement has also been recorded under Section 161 of the Cr.P.C. He further submitted that the prosecution evidence has also not been completed. In such circumstances, he submitted that the court below has rightly allowed the application filed by the prosecution. He relied on the judgment passed by the Hon'ble Supreme Court in the case of Rajendra Prasad vs. Narcotic Cell through its Officer passed in Criminal Appeal No.621/1999 decided on 12.7.1999. 5. Heard the learned counsel for the parties and also perused the record. 6. In the present case the applicant is facing a trial for committing an offence under Sections 409 and 120-B of the IPC. 5. Heard the learned counsel for the parties and also perused the record. 6. In the present case the applicant is facing a trial for committing an offence under Sections 409 and 120-B of the IPC. During the trial the prosecution on 30.8.019 has submitted an application for examination of further more 25 witnesses in the matter on the ground that their names could not be cited under the trial program by mistake. The court below after hearing both the parties has allowed the said application. Being aggrieved by the said order the application has filed the present application under Section 482 of the Cr.P.C. 7. From perusal of the impugned order, it reveals that the prosecution evidence has not been completed and all the persons to whom the prosecution wants to be examined as witnesses and they are aggrieved persons and their names have been mentioned in the FIR. In the charges sheet also their names have been included as proposed witnesses and their statements have also been recorded under Section 161 of the Cr.P.C. Thus, it appears that the statements of these persons are necessary for just and proper decision of the case. So far as the judgment cited by the learned counsel for applicant in the case of State by Inspector of Police (supra) is concerned; the facts and circumstances of the case are different and, therefore, the judgment would not be applicable in the facts and circumstances of the present case. So far the judgment relied on by the learned Government Advocate in the case of Rajendra Prasad (supra) is concerned. In the case the Apex Court has held as under:- "The above contention was based on the observation made by this Court in Mohanlal Shamji Sani v. Union of India, 1991 AIR(SC) 1346 that the court while exercising its power under Section 311 of the Code shall not use such power 'for filling up the lacuna left by the prosecution.' 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 by saying that the Court could not fill the lacuna in the prosecution case'. A lacuna in prosecution is not to be equated with the fallout 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 proved. A corollary of any such latches 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 trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed 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. The criminal court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed. Relying on the judgment passed in the case of Jamatraj Kewalji Govani v.The State of Maharashtra,1967 3 ACR 415 whereby the Court has held that it would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage or the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it." 8. the light of this judgment, this Court has ample power to recall or re-examine or call any person at any stage of the trial for recording the statements. Thus, I do not find any reason to interfere with the matter. The present M.Cr.C. is, therefore, dismissed as such.