IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH APRIL 2011 / 9TH VAISAKHA 1933 Crl.MC.No. 1308 of 2011() ------------------------- AGAINST THE ORDER IN CMP.435/2011 IN CC.378/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER(S): 2ND ACCUSED -------------------------- SAJEEVAN M., AGED 40 YEARS, S/O.CHATHUKUTTY, KOMBIL HOUSE, KURUMBUKKAL, P.O.NIRMALAGIRI, KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, KUTHUPARAMBA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ---------------------------------------------- Crl.M.C.No. 1308 of 2011 ---------------------------------------------- Dated this the 29th day of April, 2011 O R D E R Petitioner is second accused in C.C.No.378 of 2002 of the Court of Judicial First Class Magistrate,, Kuthuparamba arising from the final report in Crime No.163/2002 of Kuthuparamba Police Station for offences punishable under Sections 143, 147, 148, 447, 427 and 506(ii) read with Section 149 of Indian Penal Code. Prosecution case is that on 5.4.2002 at about 2 AM, petitioner and other accused trespassed into the property of defacto complainant, committed mischief and threatened to kill him. Evidence of prosecution was closed on 22.10.2009 and thereafter, defence evidence was also closed and the matter was heard. While so, the defacto complainant produced certain documents before the learned Magistrate. That was followed by the learned Assistant Public Prosecutor filing C.M.P.No.435 of 2011 to recall the defacto complainant/PW1 for further examination (obviously to prove the documents, which was produced before learned Magistrate). By order dated April 2, 2011, the learned Magistrate reopened the case and recalled PW1. That order is under challenge. Crl.MC.1308/11 - 2 - 2. Learned counsel submitted that attempt of the prosecution is to fill up lacuna in the prosecution case which cannot be permitted. Reliance is placed on the decision in Mohanlal Shamji Soni v. Union of India (AIR 1991 SC 1346). It is also contended by the learned counsel that it is not stated in C.M.P.No.435 of 2011 for what purpose defacto complainant/PW1 is being recalled. 3. I have heard learned Public Prosecutor also. 4. The charge against petitioner and other is for trespass into the property allegedly belonging to the defacto complainant. It is true that a fresh set of documents were produced after the defence evidence was over and the case was posted for hearing. The documents included correspondences with Secretary of Grama Panchayat and copy of certain title deeds. It is submitted that those documents were produced by the defacto complainant through counsel appearing for him. But, C.M.P.No.435 of 2011 is filed by the learned Assistant Public Prosecutor. In Mohanlal Shamji Soni v. Union of India (supra) the Supreme Court held that while invoking power under Section 311 of the Code of Criminal Procedure (for short, 'the Code'), care should be taken that it is not to be used for filling up 'lacuna' left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further that additional evidence should not be received as Crl.MC.1308/11 - 3 - a disguise for a retrial or to change the nature of the case against either of the parties. What is 'lacuna' has been explained by the Supreme Court in Rajendra Prasad v. Narcotic Cell (1999(2) KLT 779). It was held that 'lacuna' is inherent weakness and cannot be equated with a fall out of oversight. 'Lacuna' in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. If proper evidence was not adduced, or relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. In the present case, I am unable to think that the attempt of the prosecution is to fill up any loophole or lacuna as the case may be. Mere inadvertence on the part of the prosecution to produce certain documents at the appropriate stage can only be taken as a fall out of oversight. Moreover, in Iddar v. Aabida (AIR 2007 SC 3029) dealing with exercise of power under Section 311 of the Code, the Supreme Court held that “some times examination of the witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not, must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” I am not inclined to think that prosecution must be denied the opportunity to adduce further evidence. Crl.MC.1308/11 - 4 - 5. It is contended that in C.M.P.No.435 of 2011 there is no mention as to the purpose for which the defacto complainant/PW1 is being recalled. I must bear in mind that before that petition is filed, additional documents were produced before the learned Magistrate. It was clear that the purpose of recalling the defacto complainant was to prove the said documents. 6. On the question whether the documents produced are relevant or not, I think, it is a matter which the trial court has to decide when the documents are sought to be admitted in evidence. 7. I do not find reason to interfere with the impugned order. But, I make it clear that it is for the trial court to decide whether the documents sought to be adduced in evidence are relevant or not for deciding the dispute involved in the case. The Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE vgs