RAJENDRA PRASAD versus THE NARCOTIC CELL THROUGH ITS OFFICER INCHARGE, DELHI

Citation: [1999] 3 S.C.R. 818 · Decided: 12-07-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
RAJENDRA PRASAD 
v. 
THE NARCOTIC CELL THROUGH ITS 
OFFICER INCHARGE, DELHI 
JULY 12, 1999 
[K.T. THOMAS AND M.B. SHAH JJ.] 
Criminal Procedure Code, 1973 Section 311-Prosecution seeking 
resummoning of witnesses after evidence was closed-Whether power under 
C this Section can be exercised to fill up lacuna in Prosecution case-Held : 
oversight or mistakes during conducting of case cannot be understood as 
lacuna and can be corrected. 
D 
Words & Phrases. 
"Lucuna in Prosecution case"-Meaning of 
Appellant along with certain other persons was tried. before a Court of 
Sessions for offences under the Narcotic Drugs and Psych'otropic Substance 
Act, 1985. After the evidence was closed by the Prosecution and the defence, 
E 
the Prosecution resummoned two witnesses who were already examined for 
the purpose of proving certain documents for prosecution. Thereafter evidence 
was closed and case was posted for arguments. Public Prosecutor moved an 
application seeking permission to examine PW-21 and two other persons. 
The trial court allowed the application in exercise of its power under Section 
-311 of the Code and issued summons to the witnesses. The Revision petition 
F 
preferred by the appellant was dismissed by the High Court. 
It was contended by the appellant before this Court 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 in order to fill up lacuna 
G in the case. 
Dismissing the appeal, the Court 
HELD : 1.1. The steps which the trial court permitted in this case for 
resummoning certain witnesses cannot be spurned down nor frowned at. 
I-I 
[823-B] 
818 
RAJENDl~A PRASAD v. NARCOTIC CELL [THOMAS, J.] 
819 
1.2. A lacuna in the prosecution is not to be equated with the fall out A 
of an oversight committed by a Public Prosecutor during trial, either in 
producing relevant materials or in eliciting relevant answers from witnesses. 
A corollary of any such latches or mistakes in the conduct of a case cannot 
be understood as a lacuna which a Court cannot fill up. [827-G] 
Mohan/al Shamji Soni v. Union of India, AIR (1991) SC 1346; Jamatraj B 
Kewalji Govani v. The State of Maharshtra., [1967) 3 SCR 415 and Ram 
Chander v. State of Haryana, AIR (1981) SC 1036, relied on. 
2. Lacuna in the prosecution must be understood as the inherent 
weakness or a latent wedge in the matrix of the prosecution case. The C 
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 
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. [821-H; 822-A) 
D 
3. 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. (823-A-B) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. E 
621of1999. 
From the Judgment and Order dated 23.2.99 of the Delhi High Court in 
Cr!. R. No. 64of1999. 
Manoj Swarup, Ms. Lalita Kohli and Ms. Malini Swarup for M/s. Manoj 
Swarup & Co. for the Appellant. 
The Judgrp.ent of the Court was delivered by 
THOMAS, J. Leave granted. 
Can a trial court permit lacuna in prosecution evidence filled up? The 
conventional concept is that the court should not do so. But then, what is 
meant by lacuna in a prosecution case, has to be understood before deciding 
the said questions one way or the other. 
F 
G 
H 
SUPREME COURT REPORTS 
[1999] 3 S.C.R. 
A 
The present case provides an occasion to decide the said question. 
Appellant is now facing trial along with certain other persons before a court 
of sessions for offences under Sections 21, 25 and 29 of the Narcotics Drugs 
and Psychotropic Substances Act, 1985. Appellant is now on bail pursuant 
to an order granted by the High Court of Delhi. As the trial proceeded almost 
to the end when the prosecution and the defence closed their evidence. on 
B 19.9.1997, the case was posted for further steps. Nevertheless, subsequently, 
the case stood posted to some other days also. On 7.3.1998, at the instance 
of the prosecution two of the witnesses, who were already examined, were re-
summoned for the purpose of proving certain documents for prosecution. 
They were furthe
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