TaxTMI 
TaxTMI 
2009 (12) TMI 1080
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....ons 307/326/34 I.P.C., Police Station Chamkaur Sahib, came to be registered against the accused/respondents on a statement made by the petitioner/complainant Balwinder Singh @ Sangat Singh son of Bishan Singh, which was recorded in Civil Hospital, Chamkaur Sahib, wherein intimation was received on 20.08.2008 regarding admission of injured Balwinder Singh in the hospital. On 19.08.2008, injured Balwinder Singh (petitioner/complainant) was declared unfit to make any statement by the Medical Officer. The respondents/accused with an intention to cause death to Balwinder Singh (petitioner/complainant) caused injures on his person, while he was going for a walk on Sirhind Canal in the area of Chamkaur Sahib at about 08:00 P.M. on 19.08.2008, for the reason that the accused/respondents had tried to outrage the modesty of the daughter of his friend, namely, Sadhu Singh, resident of Mohalla Raiwara, Chamkaur Sahib, as the complainant/petitioner helped him. Gurdev Singh son of Hari Singh, a passerby tried to rescue injured Balwinder Singh on hearing the alarm raised by the petitioner/complainant Balwinder Singh. The accused/respondents also caused injuries on the person of Gurdev Singh, and,....
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....the accused/respondents under Sections 307/34 I.P.C., but charges under Sections 323/326 I.P.C. were not framed against the accused/respondents, despite grievous injuries on the vital parts of Balwinder Singh (petitioner/complainant) and on the person of Gurdev Singh, were found. When the case was fixed for prosecution evidence after framing of charge, the prosecution and the petitioner/complainant realised, at that stage, that the statements of eye witness/injured Gurdev Singh and Teja @ Tejwinder Singh, have inadvertently not been attached with the police report submitted under Section 173 Cr. P.C. by the police. 4. Accordingly, an application for additional evidence under Section 311 Cr. P.C., was submitted by the petitioner/complainant, wherein it was pleaded that the F.I.R. was registered on the statement of Balwinder Singh (petitioner/complainant). In the said statement, it was specifically mentioned that the injuries upon Gurdev Singh and Tejwinder Singh were inflicted by the accused/respondents. At the time of presentation of the challan, the names of Gurdev Singh and Tejwinder Singh, were cited in the list of witnesses being eye witnesses/injured and their medico legal ....
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....ch was recorded on the statement of the petitioner/complainant. He contends that the learned Sessions Judge, Rupnagar, had proceeded to reject the application, merely on technicalities and had totally overlooked the intent and purpose for which Section 311 Cr. P.C. has been incorporated. There is no lacuna in the case of the prosecution, which is being sought to be filled up, as a matter of fact, the mistake is a bonafide mistake, which needs to be condoned and rectified, so that justice should not be a casualty and truth should prevail. 6. In support of his contentions, he relies upon the provisions of Section 311 Cr. P.C. as also the judgment of Hon'ble the Supreme Court in the case of Rajendra Prasad v. The Narcotic Cell through its Officer-Incharge, Delhi, 1999 (3) R.C.R. (Cri) 440, wherein Hon'ble the Supreme Court has held that the lacuna and error are two distinct things and oversight in the management of prosecution, cannot be tried as a reasonable lacuna and no party in a trial can be fore-closed from correcting errors and inadvertent errors should be permitted to be rectified by the Court, while exercising its power under Section 311 Cr. P.C. He on this basis p....
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....this stage the present application is allowed. He relies upon the judgment of this Court in the case of Madanjit Singh v. Baljit Singh, 1997 (2) R.C.R. (Cri), 808, in support of his contention that the lacunae of the prosecution in a criminal case cannot be allowed to be filled up under the grab of an application under Section 311 Cr. P.C. In any case, there is no mistake much less inadvertent, while presentation of challan against the accused/respondents and the contention of prosecution cannot be accepted. As per practice and procedure, before presentation of challan in the Court, the same is duly checked by the prosecuting agency and thereafter, it is committed to the Court of Session by the learned Area Magistrate. The prosecution, at that stage, had an opportunity to go through the challan papers. Thereafter, before the Court of Session, when the charge was framed, again an opportunity was available with the prosecution to examine the names of witnesses and their statements recorded under Section 161 Cr. P.C., but the prosecution failed to detect the same and nor did make any effort to take any steps to place the statements of Gurdev Singh and Tejwinder Singh allegedly recorde....
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....atements of Gurdev Singh was recorded by the Investigating Officer at Civil Hospital, Chamkaur Sahib, on 20.08.2008 and that of Teja @ Tejwinder Singh in P.G.I. at Chandigarh, on 20.08.2008 and on the same date, M.L.R./Medical Case Summary of the injured were collected by the Investigating Officer, as per reply filed by respondent No. 1-State. The application under Section 311 Cr. P.C. has been preferred by the petitioner/complainant at the very initiation of the prosecution evidence, when it was realised by the petitioner/complainant and the prosecution that inadvertently statements of Gurdev Singh and Teja @ Tejwinder Singh recorded under Section 161 Cr. P.C. by the Investigating Officer have not been attached with the report under Section 173 Cr. P.C. A perusal of Section 311 Cr. P.C. would clearly indicate that it is a discretionary power of the Court to exercise the same at its discretion and enables it at any stage of inquiry, trial or proceeding under the Code to summon anyone as a witness or examine any person present in the Court or recall or re-examine any person whose evidence has already been recorded. It further provides and rather mandates the criminal court to summon....
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....n conferred by the Legislature on the Trial Court. The Court cannot dilute the statutory powers conferred upon the Trial Court, when the Legislature did not intend to do so. Justice should not be the sufferer. The purpose and intent of the trial is to find out the truth and the truth alone should prevail and in its quest to find out and to reach the truth, the Trial Court has been saddled with powers to make all efforts to reach a correct conclusion, which is the truth. No doubt, in the said process, the interest of the parties has to be taken care of, but that does not mean that justice should be the casualty. The rights have been conferred under the statute both on the prosecution as well as the accused and when the statute confers certain powers upon the Court, which is primarily in the nature of doing justice and for that it is the satisfaction of the Court as to the essentiality of the evidence, sought to be produced by the parties for the just decision of the case, the same is depending upon the facts of each case. 14. Thereafter, this Court in the case of Dr. Gurpreet Kaur v. Appropriate Authority-cum-Senior Medical Officer, Incharge Sub-Division Hospital, Tehsil Phillaur....
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....nce supports the case of 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 any inquiry or trial or other proceeding 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, he discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind. 9. 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 Evidence Act, 1872 (in short "the Evidence Act") are based on this rule. The court is not empowered under ....
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....vertent mistake on the part of the prosecution, the evidence stood closed and the documents were not proved on record. It was basically an error due to oversight in the management of the prosecution. Hon'ble the Supreme Court on consideration of the matter drew a distinction between lacuna in the prosecution and error on the part of the prosecution and has held as follow :- 7. 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 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 error is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistake during the conduct of a case cannot be understood as the lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent w....
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....an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past : Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172 (....