SAROJ KUMAR SAHOO Vs. I KRISHNA RAO

JUDGEMENT

(1.) THIS application under Section 482 Cr.P.C. has been filed by the petitioner who is the informant, to set aside the impugned order dated 24.4.2007 passed by the learned Addl. Sessions Judge, F.T.C. No. 3, Bhubaneswar in S.T. Case No. 98/537 of 2004, rejecting the petition of the State under Section 311 Cr.P.C. to recall P.Ws. 1, 3 and 9 for their further cross -examination. It is submitted by learned Counsel for the petitioner that the impugned order has been passed without application of mind inasmuch as the provisions of Section 311 Cr.P.C. is to be considered liberally as the same has been enacted to enable the Court to find out the truth and render a just decision, it is further stated that the said provision empowers the Court to exercise its discretionary authority at any stage of enquiry, trial or other proceeding and therefore, the rejection of For Petitioner For Opp. Parties the application for recalling P.Ws. 1, 3 and 9 filed by the State is improper and illegal.

(2.) LEARNED Counsel for the opposite parties submits that as the detail questionnaire which is proposed to be asked had not been furnished in the application for recall filed by the State under Section 311 Cr.P.C., the trial Court was justified in rejecting the same. With regard to the maintainability of this application under Section 482 Cr.P.C. at the behest of the petitioner, who is the informant the same was not pressed by the counsel for the opposite parties in view of the decision of this Court in Mukunda Dev Baral v. Sanjib Baral and Ors. reported in 73 (1992) CLT 292. In order to appreciate the pleading of the petitioner, it is beneficial to refer to Section 311 Cr.P.C. which is extracted below: 311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in a attendance, though not summoned as a witness, or recall and re -examine any person already examined; and the Court shall summon and examine or recall and re -examine any such person if his evidence appears to it to be essential to the just decision of the case.

(3.) IN the case of Rajendra Prasad v. Narcotic 1999 (II) OLR (SC) 558 Call reported in AIR 1999 SC 2292, it has been held that the conventional concept is that the Court should not permit lacuna in prosecution evidence to be filled up. But, then what is meant by lacuna in a prosecution case has to be understood before deciding the case. A lacuna in prosecution is not to be equated with the fall out of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from the witnesses. The adage 'to error is human' is the recognition in the possibility of making mistakes to which humans are proned. 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 clearly come 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 the 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.