LexU.T. OF DADRA & HAVELI AND ANR. versus PATEL SINH MOHANSINH CHAUHAN
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A U.T. OF DADRA & HA YELi AND ANR. v. PATEL SINH MOHANSINH CHAUHAN AUGUST 14, 2006 B [G.P. MATHUR AND A.K. MATHUR, JJ.] Code of Criminal Procedure, 1973: Section 311-Material witness-Summoning of-Power of Court-When C amounts to filling of a lacuna in the prosecution case-Plea of alibi- Accused was assigned the role of instigation in an incident-In his statement under S. 313 Cr.P.C. the accused took a plea of alibi that, at the time of the alleged incident, he was present in the chamber of the Collector as a meeting had been called there-The Special Public Prosecutor moved an application D under S. 311 Cr.P.C. for summoning the Collectur to be examined as a witness-Sessions Judge allowed the applic:ation-But the High Court set aside the order holding that summoning the Collector under Section 311 Cr.P.C. would result in permilling the prosecution to fill in the lacuna in the prosecution case-Correctness of-Held: Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order E to enable the Court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case"-The evidence of the Collector would not cause any prejudice to the accused as he had himself pleaded alibi and had led evidence to substantiate the same-The High Court clearly erred in selling a~ide the order pass<!d by the Sessions Judge. F The respondent-accused A-7 was assigned the role of instigation in an incident in which the deceased was assaulted and injuries were caused to some others. In his statement under Section 313 of the Code of Civil Procednre, 1973 which was recorded after the close of the prosecution evidence, the respondent took a plea of alibi and submitted that he was a prominent member G of a political party and at the time of the incident he was present in the chamber of the Collector as a meeting had been called there. The respondent examined two witnesses in support of his plea of alibi. The Special Public Prosecutor moved an application under Section 311 Cr.P.C., for summoning the Collector, named by the respondent, to be examined as a witness. The Sessions Judge H 522 UTOFDADRA&HAVELI '" PATELSINH MOHANSINHCHAUHAN 523 allowed the application. A Being aggrieved, the respondent filed an application under Sections 397/ 401/482 Cr.P.C. and Article 227 of the Constitution of India before the High Court for setting aside the aforesaid order. The High allowed the application holding that summoning the Collector under Section 311 Cr.P.C. would result in permitting the prosecution to fill in the lacuna in the prosecution case. B Hence the appeal. The following question arose before the Court:- Whether the order passed by the Sessions Judge comes within the C parameters of Section 311 of the Code of Criminal Procedure, 1973, which confers power on the Court to summon a material witness or examine a person present in Court? Allowing the appeal, the Court D HELD: I. The principle is well-settled that the exercise of power under Section 311 of the Code of Civil Procedure, 1973 should be resorted to only with the object offinding out the truth or obtaining proper proofof such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court E to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. (533-F-HJ F State of West Bengal v. Tulsidas Mundhra, (1964) 1 Crl. L.J. 443, Jama/raj Kewalji Govani v. State of Maharashtra, AIR (1968) SC 178, Mohan/al Shamji Soni v. Union of India, AIR (1991) SC 1346, Rajendra Prasad v. Narcotic Cell, [1999] 6 SCC IIO and P. Chhaganlal Daga v. M Sanjay Shaw. (2003] 11 sec 486, relied on. G Ram Jeet v. State, AIR (1958] All 439, approved. 2. The charge-sheet submitted by the police under Section 173 Cr.P.C. after completion of investigation contains the statements of the witnesses as H recorded under Section 161 Cr.P.C. and in a case exclusively triable by court 524 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R. A of Sessions there is a duty enjoined
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