IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 Crl.MC.No. 4171 of 2010() ------------------------ AGAINST THE ORDER DATED 08/10/2010 IN CMP 3394/2010 IN ST.4/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................. PETITIONER / ACCUSED : ------------------------------------- M.S.VARGHESE, S/O.SCHARIA MALEKKAMANNIL VEEDU, MEEMUTTI PO KODENCHERY, KOZHIKKODE DISTRICT. BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENTS / COMPLAINANT: ------------------------------------------------ 1. ELSAMMA DOMINIC, W/O.DOMINIC, PONNAMATTATHIL VEEDU, NELLIPOYIL KOZHIKODE 673 580 2. STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. SRI.SUNNY MATHEW R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4171 OF 2010 --------------------------------------------- Dated 7th December, 2010 O R D E R Petitioner, the complainant in S.T.4/2009 on the file of Judicial First Class Magistrate-II, Thamarassery filed C.M.P.3394/2010 under Section 311 of Code of Criminal Procedure to examine one witness, whose presence was mentioned in the complaint and also shown as a witness to be examined and whose presence was spoken to by the petitioner when examined as PW1, but not examined before the prosecution evidence was closed. After closing the defence evidence, when the case was posted for arguments, petition under Section 311 of Code of Criminal Procedure was filed. Crmc 4171/10 2 2. First respondent/accused opposed the application by filing Annexure-B objection contending that the reason shown for non examination is not correct and there was no prayer for adjournment of the trial for the purpose of examination of the witness on the ground that he is laid up and attempt is to fill up lacuna which cannot be permitted. 3. By Annexure-C order learned Magistrate dismissed the petition holding that Honourable Supreme Court in Rajendra Prasad v. Narcotic Cell (1999 (2) KLT 779) held that lacuna in the prosecution case must be understood as the inherent weakness and the accused is entitled to the benefit of the said inherent weakness and attempt is only to fill up the lacuna which cannot be permitted. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-C order Crmc 4171/10 3 and for permission to examine the witness. 4. Learned counsel appearing for the petitioner and first respondent were heard. 5. Annexure-C order shows that learned Magistrate dismissed the petition for the reason that attempt of the petitioner is to fill up the lacuna and non examination of the witness at the earlier stage is an inherent weakness which is available to the accused to be taken advantage of and it is not a particular number of witness that is material and therefore, examination of one more witness is not necessary. 6. Learned counsel appearing for the petitioner pointed out that fact that petitioner has mentioned presence of the witness who is sought to be examined in the complaint and also when he was examined as PW1, are not disputed and he is also shown as one of Crmc 4171/10 4 the witnesses to be examined and the failure to examine the witness at that stage is not a ground to reject the petition filed under Section 311 as evidence of the witness is material and relevant for a just decision of the case. It is also pointed out that the dictum of Honourable Supreme Court in Rajendra Prasad's case (supra) is not as found by the learned Magistrate. 7. Learned counsel appearing for the first respondent submitted that the petitioner had no case, when the prosecution evidence was closed that the witness now sought to be examined is to be examined and attempt is only to fill up the lacuna, while hearing the argument finding that though first respondent denied execution even in the reply notice, no evidence was adduced to prove execution and in such circumstances, petition is to be dismissed. Crmc 4171/10 5 8. Section 311 of Code of Criminal Procedure enables the Court any any stage, to issue summons and to examine any witness, if it finds necessary for a just decision of the case. It cannot be said that examination of a witness who was allegedly present at the time when the dishonoured cheque was issued, as claimed by the petitioner and as denied by the first respondent, is not a relevant aspect or his evidence is not necessary for a just decision of the case. The ground shown in the order is that, as held by the Apex court in Rajendra Prasad's case(supra), attempt is to fill up lacuna. Learned Magistrate unfortunately did not properly appreciate the dictum in Rajendra Prasad's case. Honourable Supreme Court held; “Lacuna in the prosecution must be understood as the Crmc 4171/10 6 inherent weakness or a latent wedge in the matrix of the prosecution case and over sight 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. 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.” Crmc 4171/10 7 In the light of the said decision, learned Magistrate was not justified in not exercising the power under Section 311 of Code of Criminal Procedure as sought for. Their Lordships held thus, “Contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning 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 cannot be accepted and power of the Court is plenary to summon or even recall any witness at any Crmc 4171/10 8 stage of the case if the Court considers it necessary for a just decision.” In the light of the said decision, learned Magistrate was not justified in not exercising the power under Section 311 of Code of Criminal Procedure as sought for. Petition is allowed. C.M.P.3394/2010 stands allowed. Judicial First Class Magistrate-II, Thamarassery is directed to reopen the evidence and examine the witness as sought for in C.M.P.3394/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.