Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 451 (RAJ)

Suresh Kumar v. State

2021-02-19

SATISH KUMAR SHARMA

body2021
JUDGMENT 1. The present petition under Section 482 CrPC has been filed against order dated 12.10.2020 passed by Additional Session Judge Chirawa, District Jhunjhunu in session case no. 160/2016 titled as State V/s Harkori & Ors. vide which the application of the prosecution filed under Section 311 CrPC for recalling ofs Investigating Officer to exhibit the articles seized in the course of investigation was rejected. 2. Heard learned counsel for both the sides and perused the material made available on record. 3. Learned counsel for the petitioner submits that for just decision of the case the important articles seized during the course of investigation are required to be exhibited by the Investigating Officer still learned trial court has rejected the application of prosecution. The impugned order is illegal and deserves to be quashed. He has placed reliance on Rajendra Prasad V/s Narcotic Cell (1999) 6 SCC 110 . 4. Per contra learned counsel for the respondent accused persons submit that no party can be permitted to fill up the lacuna of his case under the garb of the provisions of Section 311 of CrPC. In this case, the prosecution itself did not produce the seized articles at the time of examination of the Investigating Officer. No request was made for statement of Investigating Officer and the present application under Section 311 was filed after three months. Therefore, learned trial court has rightly dismissed the same. The present petition is devoid of any merit which deserves to be dismissed. 5. From the perusal of judicial pronouncement cited by both the sides, it is well settled legal position that no party can be allowed to fill up the lacunas in its evidence under Section 311 of CrPC but Hon'ble Supreme Court in Rajendra Prasad V/s Narcotic Cell(Supra) has explained the term lacuna in the following manner;- "A lacuna in the 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 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. 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. 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 its should normally go to the accused in the trial of the case, but an oversight 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. It cannot be said as a legal proposition that the court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down or frowned at." 6. In view of above legal position, it is apparent that the articles seized during the course of investigation could not be exhibited at the time of examination of the Investigating Officer due to lapse on the part of Additional Public Prosecutor but for just decision of the case, the said articles are required to be exhibited so that both the parties may examine the concerned Investigating Officer and the trial court may get benefited to arrive at a right conclusion in the matter for just decision of the case. 7. Therefore, in view of above settled legal position, the present petition is allowed. The impugned order is quashed and set aside. 7. Therefore, in view of above settled legal position, the present petition is allowed. The impugned order is quashed and set aside. The prosecution is directed to ensure presence of the Investigating Officer on the next date positively for getting exhibited the seized articles and the trial court shall proceed further in the matter in accordance with law.