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Himachal Pradesh High Court · body

2023 DIGILAW 574 (HP)

Sandeep Sharma v. State of H. P.

2023-12-21

RAKESH KAINTHLA

body2023
JUDGMENT : RAKESH KAINTHLA, J. 1. The present petition has been filed under Section 482 of Cr.P.C. against the order dated 25.02.2022 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla in Criminal Miscellaneous Petition No. 15-S/4 of 2021 in CIS No. 2053/2021, Sessions Trial No. 70-S/7 of 17/21. 2. It has been asserted that the petitioner and proforma respondent are facing trial for the commission of offences punishable under Sections 363, 366 & 376 read with Section 34 of IPC and Section 4 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) before the learned Additional Sessions Judge, Fast Track Court (POCSO) Shimla (in short learned Trial Court). The prosecution filed an application under Section 311 of Cr.P.C. for examining LC Sunita, Constable Amit, Constable Pardeep, HHC Layak Ram (retired), and recalling of two witnesses, namely, Constable Vishal and HC Praveen along with Malkhana Register. The petitioner contested the application by filing a reply. Learned Trial Court allowed the application vide order dated 25.02.2022. Learned Trial Court erred in allowing the application because it violates the concept of fair trial available to the accused person because the recalling and examining of witnesses sought by way of application will seriously prejudice the defence raised by the petitioner. The entire defence including the inherent improbabilities and material contradictions in the case of the prosecution stands exposed. The re-examination of witnesses, namely, Vishal and Praveen shall wipe out the legal benefits available to the accused persons. The prosecution is trying to manufacture evidence against the accused by using unfair means. Constable Vishal and HC-Praveen did not utter a single word regarding the case property. Constable Vishal even stated that he remained associated during the investigation and the memos regarding the seizure of the cardigan and motorcycle were prepared in his presence. HC-Parveen Kumar has only deposed about sending the case property through Constable Pradeep to SFSL, Junga and did not depose anything about the deposit of the sample with him by either LC Sunita or Constable Amit. They could not have been legally allowed to be re-examined when they had already been cross-examined and no re-examination was conducted by the prosecution. Learned Special Judge failed to notice that Constable Vishal was never cited as a witness to prove the receipt of the sample of the child witness. They could not have been legally allowed to be re-examined when they had already been cross-examined and no re-examination was conducted by the prosecution. Learned Special Judge failed to notice that Constable Vishal was never cited as a witness to prove the receipt of the sample of the child witness. The statement under Section 161 of Cr.P.C. does not mention any such fact. No reasons were assigned for not citing LC-Sunita, Constable Amit, Constable Pradeep and HHC Layak Ram as witnesses. The order does not comply with the requirements of Section 311 of Cr.P.C. hence, it was prayed that the present petition be allowed and the order passed by the learned Special Judge be set aside. 3. The application is opposed by filing a reply and making preliminary submission regarding the lack of maintainability. The contents of the application were denied on merits. It was asserted that a charge sheet was filed against the petitioner and proforma respondent after the completion of the investigation. The case is pending trial before the learned Trial Court. Learned Trial Court passed a well-reasoned order after considering all the facts and evidence placed before him. There is no infirmity in the same; therefore, it was prayed that the present petition be dismissed. 4. I have heard Mr. Ajay Kochhar, learned Senior Counsel assisted by Mr. Anubhav Chopra, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 5. Mr. Ajay Kochhar, learned Senior Counsel submitted that the learned Special Judge erred in allowing the application. The application does not mention any reason why the witnesses sought to be examined by filing the present application were not examined earlier. The application was filed after the examination of the witnesses had concluded. The witnesses sought to be recalled did not say anything about the deposit of the case property and sending the same. Therefore, their testimonies are beyond their statements recorded under Section 161 of Cr.P.C. The petitioner would be seriously prejudiced by the examination of the witnesses. Hence, he prayed that the present petition be allowed and the order passed by the learned Special Judge be set aside. 6. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State supported the order passed by the learned Special Judge and submitted that no interference is required with the same. 7. Hence, he prayed that the present petition be allowed and the order passed by the learned Special Judge be set aside. 6. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State supported the order passed by the learned Special Judge and submitted that no interference is required with the same. 7. I have given considerable thought to the rival submissions at the bar and gone through the records carefully. 8. It was laid down by Hon’ble Supreme Court in V.N. Patil vs. K. Niranjan Kumar, (2021) 3 SCC 661 : 2021 SCC Online SC 172, that the object underlying under Section 311 of Cr.P.C. is that there should not be any failure of justice due to the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witnesses examined from either side. It was observed: 14. The object underlying Section 311 Cr.P.C. is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code.” It is, however, to be borne in mind that the discretionary power conferred under Section 311 Cr.P.C. has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while the exercise of judicious discretion. 16. This principle has been further reiterated in Mannan Shaikh vs. State of West Bengal, (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547 and thereafter in Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729 and Swapan Kumar Chatterjee vs. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839. The relevant paragraphs of Swapan Kumar Chatterjee vs. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 are as under: “10. The relevant paragraphs of Swapan Kumar Chatterjee vs. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 are as under: “10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely: (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.” 17. The aim of every court is to discover the truth. Section 311 Cr.P.C. is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 Cr.P.C. has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.” 9. It was held in State vs. N. Seenivasagan, (2021) 14 SCC 1 : 2021 SCC Online SC 212, that the true test under Section 311 is whether the evidence of the person who is sought to be examined or recalled is essential to the just decision of the case or not. It was observed: “12. It was held in State vs. N. Seenivasagan, (2021) 14 SCC 1 : 2021 SCC Online SC 212, that the true test under Section 311 is whether the evidence of the person who is sought to be examined or recalled is essential to the just decision of the case or not. It was observed: “12. In our view, having due regard to the nature and ambit of Section 311 of the Cr.P.C. it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any court may, at any stage of any inquiry, trial or other proceedings under Cr.P.C. summon any person as a witness, examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re- examine any such person “if his evidence appears to it to be essential to the just decision of the case.” The true test, therefore, is whether it appears to the Court that the evidence of such a person who is sought to be recalled is essential to the just decision of the case. 13. In Manju Devi vs. State of Rajasthan, (2019) 6 SCC 203 : (2019) 2 SCC (Cri) 765, a two-Judge Bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that: (SCC p. 209, Para 13) “13.......the length/duration of a case cannot displace the basic requirement of ensuring a just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.” Speaking for the Court, Dinesh Maheshwari J. expounded on the principles underlying Section 311 in the following terms: [Manju Devi vs. State of Rajasthan, (2019) 6 SCC 203 : (2019) 2 SCC (Cri) 765, SCC pp. 207-208, Para 10] “10. 207-208, Para 10] “10. It needs hardly any emphasis that the discretionary powers like those under Section 311 Cr.P.C. are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 Cr.P.C. and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [Vide Mohanlal Shamji Soni vs. Union of India, 1991 Supp. (1) SCC 271 : 1991 SCC (Cri) 595, Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999, Mina Lalita Baruwa vs. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218, Rajaram Prasad Yadav vs. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828]. In Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter-alia, as under: [Natasha Singh vs. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828, SCC pp. 746 & 748-749, Paras 8 & 15] ‘8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry” or “trial” or “any other proceedings” under Cr.P.C. or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** *** *** 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.’” (Emphasis in original) 10. This position was reiterated in Varsha Garg vs. State of M.P. 2022 SCC Online SC 986 wherein it was observed: “33. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.” The essentiality of the evidence of the person who is to be examined coupled with the need for a just decision of the case constitutes the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory. 34. A two judge Bench of this Court in Mohanlal Shamji Soni vs. Union of India, (1991) Supp. (1) SCC 271 while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed: “16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision - either discretionary or mandatory - depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.” 35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the “evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.” In that context the Court observed: “18.......Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further, it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.” 36. Summing up the position as obtained from various decisions of this Court, namely Rameshwar Dayal vs. State of U.P. 1978 (2) SCC 518 , State of West Bengal vs. Tulsidas Mundhra, 1963 Supp. (1) SCR 1, Jamatraj Kewalji Govani vs. State of Maharashtra, (1967) 3 SCR 415 , Masalti vs. State of U.P. (1964) 8 SCR 133 , Rajeswar Prosad Misra vs. State of West Bengal, (1966) 1 SCR 178 and R.B. Mithani vs. State of Maharashtra, (1971) 1 SCC 523 , the Court held: “27. (1) SCR 1, Jamatraj Kewalji Govani vs. State of Maharashtra, (1967) 3 SCR 415 , Masalti vs. State of U.P. (1964) 8 SCR 133 , Rajeswar Prosad Misra vs. State of West Bengal, (1966) 1 SCR 178 and R.B. Mithani vs. State of Maharashtra, (1971) 1 SCC 523 , the Court held: “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” 11. In the present case, it was mentioned in the application filed under Section 311 of Cr.P.C. that LC Sunita had taken the child victim for medical examination. HC-Pradeep had taken the case property to SFSL, Junga. Constable Vishal was required to be examined to complete the link evidence. Constable Amit had taken the accused to a civil hospital and submitted the MLC and samples. The petitioner did not deny these facts in the reply. The plea taken by the petitioner was that the prosecution had examined all the witnesses and the witnesses who were sought to be re-called had not deposed about the facts which were sought to be proved by re-examining them. Learned Trial Court had rightly held that the witnesses were essential for finding the truth. The link evidence is important to complete the chain from the seizure to the examination of the case property to establish whether there was any tampering with the case property or not. Therefore, the examination of the witnesses is essential and satisfies the criteria laid down by the Hon’ble Supreme Court. 12. The examination and recall have been opposed because the same amounts to filling up the lacuna. It was laid down by the Hon’ble Supreme Court in Rajender Prasad vs. Narcotic Cell, 1999 (6) SCC 110 that the lacuna does not mean the fault committed by the prosecuting counsel. It was observed: 6. 12. The examination and recall have been opposed because the same amounts to filling up the lacuna. It was laid down by the Hon’ble Supreme Court in Rajender Prasad vs. Narcotic Cell, 1999 (6) SCC 110 that the lacuna does not mean the fault committed by the prosecuting counsel. It was observed: 6. 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 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 prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna, which a Court cannot fill up. 7. A 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 oversight in the management of the prosecution cannot be treated as an irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. If proper evidence was not adduced or 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, the function of the criminal Court is the 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. 13. Similarly, it was held in Zahira H. Sheikh vs. State of Gujarat, 2006 (3) SCC 374 that when the examination of the witness is necessary, it cannot be declined on the ground that the same would amount to the filling of the loophole. It was observed: 27. 13. Similarly, it was held in Zahira H. Sheikh vs. State of Gujarat, 2006 (3) SCC 374 that when the examination of the witness is necessary, it cannot be declined on the ground that the same would amount to the filling of the loophole. It was observed: 27. The object underlying Section 311 of the Code is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only to the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceedings under this Code.” It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 28. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be the “filling of loopholes.” That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must, of course, depend on the facts of each case, and has to be determined by the Presiding Judge. 29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Rai vs. State of Maharashtra, AIR 1968 SC 178 . 14. Similar is the judgment in Varsha Garg (supra) wherein it was observed: 38. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution’s case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 39. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution’s case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 39. In the decision in Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374 which was more recently reiterated in Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd. (2008) 11 SCC 108 , the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court’s determination of the application should only be based on the test of the essentiality of the evidence. It noted that: “28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes.” That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” 40. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in the interest of justice. In Rajendra Prasad (supra), the Court had held that: “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. In Rajendra Prasad (supra), the Court had held that: “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 oversight in the management of the prosecution cannot be treated as an irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or 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, the function of the criminal court is the 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.” In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in the form of the call details which are already on record but use codes to signify the location of the accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement of being relevant material, which was not brought on record due to inadvertence. 15. In the present case, the lacuna pointed out is the mistake in eliciting the facts regarding the chain of custody or citing the witnesses to complete the chain of custody. It is not an inherent wedge in the prosecution case but a mistake; hence, the plea that the witnesses cannot be examined and recalled as the same would amount to filling up the lacuna is not acceptable. 16. It was submitted that the witnesses did not state anything regarding the case property in their statements recorded under Section 161 of Cr.P.C. If it is so, the defence has every right and opportunity to put the omissions to the witnesses to discredit their testimonies in the Court. However, the Court cannot shut the reception of the relevant evidence based on the omission. Hence, the application could not have been dismissed based on omission. 17. However, the Court cannot shut the reception of the relevant evidence based on the omission. Hence, the application could not have been dismissed based on omission. 17. It was further submitted that all witnesses have been examined and the examination and recall of the witnesses will prejudice the accused. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Varsha (supra) that the application under Section 311 of Cr.P.C. cannot be dismissed on the ground that all the witnesses have been examined. It was observed: 37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. 18. It was submitted that the examination of the witnesses will be prejudicial to the defence. It was laid down by the Hon’ble Supreme Court in State of Karnataka vs. T. Naseer, 2023 INSC 988 that a fair trial does not mean fair to one of the parties. The Court has to see that the guilty does not go scot-free and the innocent is not punished. It was observed: “15. A fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not evidence which has been created now. It is meeting the requirement of law to prove a report on record. Permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have the full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. Permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have the full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to sub-serve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.” 19. In the present case also the defence will get an opportunity to cross-examine the witnesses and the submission that the recall and examination of the witnesses is unfair to the accused is not acceptable. 20. No other point is urged. 21. Therefore, in view of the above, the present petition fails and the same is dismissed. 22. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.