1999 (7) TMI 707 - SC - Income Tax

Recalling prosecution witnesses in NDPS trial u/s 311 CrPC: fixing omissions vs 'filling lacunae'; appeal dismissed.

The dominant issue was whether the trial court impermissibly 'filled lacunae' in the prosecution case by recalling/re-summoning prosecution witnesses ... Lacuna in the prosecution - offences under the Narcotics Drugs and Psychotropic Substances Act - trial court failed to appreciate that in the garb of exercise of powers under Section 311 of the Code a court cannot allow the prosecution to re-examine prosecution witnesses - HELD THAT:- 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. 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 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. We cannot therefore accept the contention of the appellant 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 prosecution discovered latches 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 nor frowned at. The appeal is accordingly dismissed. Issues involved:The judgment deals with the issue of whether a trial court can permit filling up lacuna in prosecution evidence and the interpretation of lacuna in a prosecution case.Details of the judgment:Issue 1: Lacuna in prosecution evidenceThe appellant was facing trial for offences under the Narcotics Drugs and Psychotropic Substances Act. The trial court allowed the prosecution to re-examine witnesses, including PW-21, in order to fill up perceived lacunae in the case. The High Court dismissed the revision challenging this order, stating that circumstances mentioned by the sessions Judge justified the decision.Issue 2: Power of the court under Section 311 of the CrPCThe appellant contended that the trial court misused its power under Section 311 of the CrPC by allowing the prosecution to re-examine witnesses to fill up lacunae. The defense highlighted that certain witnesses were not cross-examined, leading to gaps in the prosecution's case. Reference was made to a previous judgment cautioning against filling up lacunae in the prosecution case.Conclusion:The Supreme Court held that the court has the power to summon or recall witnesses at any stage if necessary for a just decision. The court emphasized that a lacuna in prosecution should not be equated with oversight or mistakes, and the court can allow rectification of errors in the interest of justice. The judgment dismissed the appeal, affirming the trial court's decision to permit re-summoning of witnesses to address perceived lacunae in the case.