@JUDGMENTTAG-ORDER
U.C. Maheshwari, J.
Applicant being an accused has preferred this revision u/s 397/401 of Criminal Procedure Code (for short ''the Code'') against the order dated 15-2-2005, passed by Special Judge (SC and ST Atrocities) Mandla in Special Cri. Case No. 100/01, whereby respondent prosecuting agency has been permitted u/s 311 of the Code for examining of remaining witnesses as mentioned in the charge-sheet at the stage of final arguments so being dissatisfied with it applicant prayed for setting aside the abovesaid order.
It is undisputed fact that the trial under sections 420, 294, 506, Indian Penal Code read with section 3(1)(vi)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC and ST Act) is pending against the applicant and some other accused and Special Public Prosecutor has closed the evidence of prosecution on 24-4-2004 after examining only 5 witnesses out of 43 witnesses as mentioned in the charge-sheet and subsequent to it on 29-4-2004 after recording the accused statements the case was fixed for defence evidence and it was remained pending for so many dates for defence evidence and closed on 22-12-2004 by fixing the date 3-1-2005 for final arguments and again adjourned for 5-1-2005 and on such date during the course of arguments some query was made by the Court to the Special Public Prosecutor regarding non-examination of the remaining witnesses of the prosecution then an application u/s 311 of Code was submitted on behalf of prosecution with a prayer to call and examine all the remaining witnesses. The same was replied by applicant and on consideration Trial Court has passed the impugned order to summon them all remaining witnesses and fixed for recording the prosecution evidence.
Applicant has preferred this revision on the ground that after closing evidence the prosecution had no right to call or recall any of the witnesses and more so at the stage of final arguments such an opportunity could not be given to the prosecution. He also prayed in revision memo that by examining five witnesses, prosecution closed their evidence therefore, at the subsequent stage no opportunity to fill-up the lacunae could have been given to the prosecution, also raised the objection if such an order is maintained then that will cause a grave injustice with the applicant/accused and his right of defence would be seriously affected and prayed for setting aside the order of the trial Court.
Having heard the learned counsel for the applicant and State and on perusing the proceedings of the trial Court and the papers placed on record, I am of the considered view that this revision has no merits and deserves to be dismissed.
Counsel for applicant submitted that once the prosecution has closed his evidence and also recorded the statements of the accused and defence evidence was also closed and at the stage of final arguments application u/s 311 of Code for calling or recalling the witnesses to examine them was not entertainable and prosecution could not be permitted to fill-up the lacunae left by them and if such an opportunity is given then this would seriously cause prejudice to the defence of the applicant. In support of his contention he cited the following case laws :
(1) (2) (1987) (3) Crimes 536 (Bom) 2 Shridhar Waman Surushe v. State of Maharashtra, (1989) (4) Crimes 186, Jarnail Singh v. State of Haryana, (5) 7990 Cri. L.J. 165 Allahabad, Charan Singh v. State of U.P. And prayed for setting aside of the order of the trial Court. While, other hand, counsel for State supported and justified the impugned order and submitted that such an application was not moved for the purpose of filling-up the lacunae left by the prosecution but in the facts and circumstances the statements of the concerning witnesses were found necessary and therefore on considering the application of the prosecution the trial Court has given the direction to call all the remaining prosecution witnesses suo-motu and according to section 311 of the Code such powers are vested with the trial Court and the trial Court has not committed any error of jurisdiction in passing the impugned order. He further submitted that purpose of trial Court to call remaining witnesses are not to be given an opportunity to prosecution to fill up the lacunae but according to him, whenever and wherever if Public Prosecutor committed the mistake in examining to witnesses and closed the case without examining the material witnesses, then Court, has ample powers to consider this aspect and pass an appropriate order for calling the concerning witnesses and he referred the impugned order in which it was mentioned that Special Public Prosecutor Mr. Chorasiya has examined only five witnesses and closed the evidence of the prosecution and his conduct was not found valid and it has also been observed that Special Public Prosecutor has no right to support the defence and give up the witnesses to his own choice and he also submitted that if these witnesses are not examined then justice would not be done in the case at hand. He places his reliance on some precedent decided by the Apex Court and High Court on different occasions. On considering the rival submissions of the respective parties, I have carefully gone through the decisions of the Apex Court in which on different occasions the following observations have been given for calling the prosecution witnesses u/s 311 of the Code so one by one I would like to refer those decisions in the case at hand. In the matter of It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers u/s 311 of the Code or u/s 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 laches 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 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. The very same decision, It is therefore clear that 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. Dealing with the corresponding section in the old Code (section 540) Hidayatulla, J. (as the learned Chief Justice then was) speaking for a three-Judge Bench of this Court had said in, It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one person 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. In other words, where the Court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the'' Court is right in thinking that the new evidence is necessary by it for a just decision of the case." In another occasion in the matter o 55. The Courts, at the expense of repetition we may state, exist for doing justice to the persons who are affected. The trial/first appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.
Counsel for applicant also cited a decision of the Apex Court in the matter of Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial Court to hold a de novo trial and take decision on the basis of so called ''suggested formula''. The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial Court but, at the same time, the High Court directs the trial Court to take ''a fresh decision from stage one'' and on the basis of the ''suggested formula''. Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial Court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it. Since strong reliance has been placed on the Best Bakery case (Gujarat Riots Case supra) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the Court. It is in the aforesaid extraordinary circumstances that the Court not only directed a de novo ''trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial. When the above clarification, we decline to interfere in the order of remand. To put the matter beyond any shadow of doubt we further clarify and reiterate that the trial Judge, after retrial, shall take a decision on the basis of the entire evidence on record and strictly in accordance with law, without in any manner, being influenced or inhibited by anything said on the evidence in the judgment of the High Court or this Court. The aforesaid Satyajeet Banerjee case (supra) was decided after the delivery of the judgment by the trial Court at the stage of appeal in High Court and at that circumstance the case was decided but on considering the additional evidence which was already recorded in view of the order of High Court was also directed to be considered. It is undisputed fact of the case at hand that the trial is still pending before the Trial Court and before delivery of the judgment or before expressing any opinion about the case remaining witnesses of the prosecution were called by that Court to do the justice in between the parties in that whatsoever principle has been laid down in the said case the circumstance is not here in the case at hand but principle regarding "suggested formula" has not been used by the trial Court or this Court is also not going to express any opinion regarding final verdict of the case and besides this discretion the abovesaid all three Apex Court decisions say that calling of the prosecution witnesses for examination in the given circumstances cannot be called or said for the purpose of filling-up the lacunae in the prosecution case. Regarding section 311 of the Code, the Apex Court has given some verdict in the aforesaid Zahira ''s case (supra) as observed in para 43 as under : 43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and section 165 of the Evidence Act confer vast and wide powers on presiding officers of Court to elicit all necessary material by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who doesn''t act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness." The aforesaid verdict of the Apex Court indicates regarding powers of trial Court for calling and recalling of the witnesses and the aforesaid principle is directly applicable to case at hand. In the aforesaid premises, I have not found any perversity or error of jurisdiction in the impugned order and the same cannot be interfered in the revision so this revision deserves to be and is hereby dismissed and trial Court is directed to proceed with the trial expeditiously.
