IN THE COURT OF SESSIONS JUDGE, SIVASAGAR

Present:- Sri S. K. Poddar,

Sessions Judge,
Sivasagar.

Criminal Revision No. 20 (2) of 2017

Smt. Jerina Begum,

D/O Late Latif Ali,
R/O Sepon, P.O. Sepon,
P.S. Moranhat & Dist. Sivasagar,
Assam, ---------- Revision-petitioner/informant

-VS-

1. State of Assam ……………………………..Respondent

2. Md. Rana Ali,
S/O Late Rose Ali,
R/O Patsaku Hondique Gaon,
P.O. Patsaku, P.S. Bokota Nemuguri,
Dist. Sivasagar, Assam. -------------- Respondents/Accused

APPEARANCE:
Mr. S Seal, Advocate &
Md. Riajuddin Ahmed, Advocate ………for the Rev. Petitioner

Mr. Aditya Bora, PP …………… for the respondent No. 1

Mr. D. M. Neog, Advocate …………… for the respondent No. 2

Date of Argument ------------------- 06.01.2018

Date of Judgment ----------------- 20.01.2018
Judgment Delivered on ------------- 30.01.2018

JUDGMENT & ORDER

1. The instant revision petition U/S 397/398/399 of Cr.P.C. was filed

by Smt. Jerina Begum, the informant of G.R. Case No. 595/2014 against the
order dated 24.05.2017 passed by learned JMFC, Charaideo at Sonari by which
the petition of the informant filed U/S 311 Cr.P.C. for re-examination/further
examination of some witnesses was rejected.

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2. On admission of this revision petition for hearing, lower court case
record was called for and notice was issued to O.P.-Respondent No.2.

3. In pursuant to the notice of this Court, the Respondent No. 2 Md.

Rana Ali appeared through his learned engaged Advocate.

4. I have gone through the entire materials on record and also

considered the submissions of learned counsel for the revision-petitioner as
well as learned counsel appearing for the O.P.-Respondent No.2. Learned PP
appeared for the state of Assam.

5. During hearing, learned Advocate Mr. S Seal appearing for the

revision-petitioner by placing reliance on the reported case of P. Sanjeeva Rao
v. State of A.P., [(2012) 7 SCC 56], Sangeetaben Mahendrabhai Patel v. State
of Gujarat, (2012) 7 SCC 621, State of Haryana Vs Ram Mehar & Ors [2016
AIAR (Criminal) 967: (2016) 8 SCC 762], Balin Bora vs State of Asam [2013 (2)
GLT 528] has submitted that the necessity of re-examination/adducing further
evidence is found necessary on the ground that some documents which were
mentioned during evidence of the petitioner and other witnesses could be
traced out lately and those documents are of vital important for just decision
of this case and as such a prayer was made before the learned trial court with
a petition U/S 311 Cr.P.C. which was rejected. It is further pleaded that the
evidence as projected cannot be treated as filling of any lacuna in the
prosecution case; rather those will help the court in arriving at a just decision
of the case. On the other hand, Mr. D.M. Neog, learned Advocate for the
accused-Respondent No. 2 by placing reliance on the reported case of Natasha
Singh v. CBI, [(2013) 5 SCC 741 : 2013 CRL. L. J. 3346] and Rajaram Prasad
Yadav Vs State of Bihar & Anr [2013 CRL. L.J. 3777 : (2013) 14 SCC 461] has
argued that a petition U/S 311 Cr.P.C. cannot be allowed to fill up lacuna.
Learned Advocate has also argued that the petitioner not being the prosecutor
and the case being prosecuted by the State, so informant has no right to file
revision petition challenging the order of learned trial court. I have considered

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the submission of both the sides and gone through the case record.

6. So far maintainability of revision petition is concerned, as raised

by the learned Advocate for the accused-Respondent No. 2, it is a fact that the
case was investigated by police on the basis of an FIR lodged by the informant
and upon completion of investigation, Charge-Sheet was laid. It is well known
fact that during the trial of a case based upon investigation done by police, the
informant has very limited role to play. The trial was normally conducted by
State through public prosecutor. However Section 301 and 302 Cr.P.C.
empowers an informant to prosecute the case by appointing his/her own
Advocate who will assist the Public Prosecutor and thus he/she can take part
in the proceeding. Moreover Section 397, 399 Cr.P.C. gives ample power to
initiate revision petition by the High Court or any Sessions Judge to look at
correctness, legality or propriety of any finding, sentence or order recorded or
passed and as to the regularity of any proceeding of such inferior court. For
exercising the power, a Sessions Judge even may act sou-motu or at the
behest of either party of the proceeding. Thus, I am of the considered opinion
that an informant of a case, investigation of which done by police, has every
right to challenge a particular order or series of orders if he/she feels
aggrieved. Hence, I found no force on the submission of Mr. D.M. Neog,
learned Advocate appearing for the accused-Respondent No. 2 on this point.

7. Before proceeding further, let me look at the law on the point of

Section 311 Cr.P.C. Hon’ble Supreme Court of India in the case of Rajaram
Prasad Yadav (supra) as relied by learned Advocate of respondent no. 2 has
laid down a detail principles on exercising power u/s 311 Cr.P.C and was
followed by the Apex Court even in the case Ram Mehar (supra) relied by
learned advocate for the revision petitioner.

17. From a conspectus consideration of the above decisions, while

dealing with an application under Section 311 CrPC read along with
Section 138 of the Evidence Act, we feel the following principles will have
to be borne in mind by the courts:

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17.1. Whether the court is right in thinking that the new evidence is
needed by it? Whether the evidence sought to be led in under
Section 311 is noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section
311 CrPC should ensure that the judgment should not be rendered
on inchoate, inconclusive and speculative presentation of facts, as
thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court to be essential
to the just decision of the case, it is the power of the court to
summon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 CrPC should be
resorted to only with the object of finding out the truth or obtaining
proper proof for such facts, which will lead to a just and correct
decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a
lacuna in a 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.
17.6. The wide discretionary power should be exercised judiciously
and not arbitrarily.
17.7. The court must satisfy itself that it was in every respect
essential to examine such a witness or to recall him for further
examination in order to arrive at a just decision of the case.
17.8. The object of Section 311 CrPC simultaneously imposes a duty
on the court to determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice
without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be
the safeguard, while exercising the discretion. The court should bear
in mind that no party in a trial can be foreclosed from correcting
errors and that 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.
17.11. The court should be conscious of the position that after all the
trial is basically for the prisoners and the court should afford an
opportunity to them in the fairest manner possible. In that parity of

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 reasoning, it would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against possible
prejudice at the cost of the accused. The court should bear in mind
that improper or capricious exercise of such a discretionary power,
may lead to undesirable results.
17.12. The additional evidence must not be received as a disguise or
to change the nature of the case against any of the party.
17.13. The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to the issue
involved and also ensure that an opportunity of rebuttal is given to
the other party.
17.14. The power under Section 311 CrPC must therefore, be
invoked by the court only in order to meet the ends of justice for
strong and valid reasons and the same must be exercised with care,
caution and circumspection. The court should bear in mind that fair
trial entails the interest of the accused, the victim and the society
and, therefore, the grant of fair and proper opportunities to the
persons concerned, must be ensured being a constitutional goal, as
well as a human right.”
8. Hon’ble Supreme Court of India in the case of Natasha Singh v.
CBI, (2013) 5 SCC 741 has held that:

“20. Undoubtedly, an application filed under Section 311 CrPC must be

allowed if fresh evidence is being produced to facilitate a just decision,
however, in the instant case, the learned trial court prejudged the
evidence of the witness sought to be examined by the appellant, and
thereby caused grave and material prejudice to the appellant as regards
her defence, which tantamounts to a flagrant violation of the principles
of law governing the production of such evidence in keeping with the
provisions of Section 311 CrPC. By doing so, the trial court reached the
conclusion that the production of such evidence by the defence was not
essential to facilitate a just decision of the case. Such an assumption is
wholly misconceived, and is not tenable in law as the accused has every
right to adduce evidence in rebuttal of the evidence brought on record
by the prosecution. The court must examine whether such additional
evidence is necessary to facilitate a just and proper decision of the case.”
9. From the above case laws it appears that Section 311 Cr.P.C. has
provided for re-examination of the witness and it gives ample power to a court
to recall the witness at any stage of trial. The only consideration for deciding a
petition u/s 311 CrPC is necessity of evidence for just decision of the case.

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10. Upon looking at the facts of the case in hand, it appears that the
petitioner in her evidence as well as P.W. 4 in his cross examination admitted
that on arising dispute between the petitioner and the accused during their
conjugal life, a written complaint was made to the local Masjid Committee and
some resolutions were adopted in the meeting while compromising the matter.
From this part of evidence, it appears that the facts wanted to be introduced
by the informant are not new and those are known to both the parties. It is
the case of the petitioner-informant that the documents relating to the said
village meeting and resolutions were misplaced and as soon as those were
traced out, the matter was brought to the notice of learned trial court by filing
a petition U/S 311 Cr.P.C. for proving the same. There is no dispute to the fact
that a similar petition for introducing the documents through evidence has also
been filed in two other cases (one U/S 125 Cr.P.C. and another U/S 406 IPC,
pending against the accused-Respondent No.2) by the petitioner-informant
and learned trial court has allowed those petitions. However, in this case the
petition was rejected on the ground that in her testimony she did not state
about all these facts nor she mentioned about missing of the said documents.
The above finding of learned trail court appears to be incorrect. In her cross-
examination the informant as PW 1 admitted that dispute of conjugal life were
informed to Masjid Committee in writing. Similarly the defence brought about
the filling of written complaint by the informant and having some decision
during cross-examination of PW 4. Needless to say, evidence includes both
examination in chief and cross-examination. Now when the prosecution wants
to bring these matters on record by proving the documents, the objection of
the accused side is not tenable. For just decision of the case, the matter must
come before the court.

11. So far the ground of objection regarding filling of lacuna by

prosecution, as raised by respondent/accused side, it may be noted here that
from the case record and evidence, it appears that the defence has bring the

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matter of written complaint by informant and decision by Masjid Committee
during cross-examination of PW 1 and PW 4 and now they cannot take the plea
of filling of lacuna of prosecution case. By filing the petition to introduce the
documents by re-examination of witnesses, cannot be treated as lacuna rather
prosecution has taken the burden on them what should have been proved by
accused as part of his defnece. As to what amounts to lacuna, Hon'ble Gauhati
High Court has elaborately discussed the same in the reported case of Balin
Bora vs State of Asam [2013 (2) GLT 528] as relied by revision petitioner
side, while answering a question on Lacuna. Relevant portion is reproduced
below:

“( 18 ) Is the omission to bring on record the 'dying declarations', which

are claimed to have been recorded by the Investigating Officer and the
Executive Magistrate, lacuna in the prosecution's case, which cannot be
not allowed to be filled up or is it a defect in the management of the case?
( 19 ) While considering the question, posed above, one must bear in mind
that a lacuna, in the prosecution's case, shall not be equated with the
fallout of an oversight, which a prosecutor may have committed, at the
trial, either in producing relevant materials or in eliciting relevant answer
from the witness (es ). A human being, be he a prosecutor or a defence
counsel, may commit mistake. Logically extended, it would mean that
laches or mistakes, while conducting a trial, cannot be understood as
lacunae. In fact, lacunae, in the prosecution's case, must be clearly
understood to be a inherent weakness or a latent wedge in the matrix of a
prosecution's case. Though the advantage of the lapse, on the part of the
prosecution, should, ordinarily, go in favour of the defence, an oversight,
in the management of the prosecution, cannot be treated as irreparable
lacuna. Nobody can be denied the right to correct the errors committed in
a trial unless it is shown that prejudice would be caused if the error is
allowed to be corrected.
( 20 ) With regard to the above, it must be uppermost in the mind of a
Judge that if appropriate evidence is not adduced, or relevant material is
not brought on record, due to inadvertence of the counsel, the Court shall
not foreclose the right of the party to correct the errors, for, Courts are
required to do justice and not to count errors committed by the parties or
to find out as to who, amongst the parties, performed better. Explaining as
to what can be regarded as a lacuna in a prosecution's case, the Supreme
Court, in Rajendra Prasad Vs. Narcotic Cell, reported in (1999) 6 SCC 110,
observed :

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"7. It is a common experience in criminal courts that defence counsel
would raise objections whenever courts exercise powers under
Section 311 of the Code of under Section 165 of the Evidence Act,
1872 by saying that the court could not "fill the lacuna in the
prosecution case". A lacuna in the prosecution is not to be equated
with the fallout of an oversight committed by a Public Prosecutor
during trial, either in producing relevant materials or in eliciting
relevant answers from witnesses. The adage "to err is human" is the
recognition of the possibility of making mistakes to which humans
are phone. A corollary of any such laches or mistakes during the
conducting of a case cannot be understood as a lacuna which a court
cannot fill up.
8. 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 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. After all, function of the criminal court is
adminis-tration of criminal justice and not to count errors committed
by the parties or to find out and declare who among the parties
performed better.
9. The very same decision Mohanlal Shamji Soni Vs. Union of India 1
which cautioned against filling up lacuna has also laid down the ratio
thus : (AIR Head-note)"it is therefore clear that the criminal court
has ample power to summon any person as a witness or recall and
re-examine any such person even if the evidence on both sides is
closed and the jurisdiction of the court must obviously be dictated by
exigency of the situation, and fair play and good sense appear to be
the only safe guides and that only the requirements of justice
command the examination of any person which would depend on the
facts and circumstances of each case. "
10. Dealing with the corresponding section in the old Code (Section
540) Hidayatullah, J. (as the learned Chief Justice then was)
speaking for a three-Judge Bench of this Court had said in Jamatraj
Kewalji Govani Vs. State of Maha-rashtra 2 as follows : "it would
appear that in our criminal jurisdiction, statutory law confers a power
in absolute terms to be exercised at any stage of the trial to summon
a witness or examine one present in court or to recall a witness
already examined, and makes this the duty and obligation of the
court provided the just decision of the case demands it. In other

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 words, where the court exercises the power under the second part,
the enquiry cannot be whether the accused has brought anything
suddenly or unexpectedly but whether the court is right in thinking
that the new evidence is needed by it for a just decision of the case."
11. Chinnappa Reddy, J. has also observed in the same tone in Ram
Chandervs. State of Haryana.
12. We cannot therefore accept the conten-tion of the appellant as a
legal proposition that the court cannot exercise power of resum-
moning any witness if once that power was exercised, nor can the
power be whittled down merely on the ground that the prosecution
discovered laches only when the defence highlighted them during
final arguments. 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. The steps which the trial
court permitted in this case for resummoning certain witnesses
cannot therefore be spurned down or frowned at. " (Emphasis is
supplied)
( 21 ) From the observations made in Rajendra Prasad's case (supra), it
clearly transpires that a lacuna, in the case of prosecution or defence,
would mean an inherent weakness of the case and not accidental slip or
omission nor does lacuna mean patent wedge, but a latent wedge. An
oversight or inefficiency in the management of a case is not a lacuna. In
this regard, it also becomes necessary to redefine the role of a Prosecutor
in a criminal trial.
( 22 ) The role of a Prosecutor in a Court of law is to place all the
necessary facts before the Court to ensure utmost fairness in prosec-
ution. It is not the duty of the Prosecution to ensure conviction. The quest
in the Court of law is only for truth as far as possible and all the Officers
of Court, be it the Judge, the Prosecutor or the Defence Counsel, must
strive for bringing out the truth irrespective of the consideration whether
the truth will result in acquittal or conviction.”
12. From the above ratio, it become abundantly clear that bringing
some documents at later stage which are not in denial, would not amount to
lacuna rather it will help the court to decide the case in proper and just
manner.

13. From the totality of the facts as available in the trial court record,
I am of the considered opinion that if the petition U/S 311 Cr.P.C. is allowed it
will not amount to fill up of any lacuna rather the best available evidence will

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come before the trial court for just and proper decision of the case. It is
needless to say that on re-examination by way of recalling any witness or by
calling further witnesses the defence will definitely get chance to cross
examine the witnesses and hence there is no chance of causing prejudice to
the accused side.

14. Considering all above, I am of the opinion that impugned order

so far rejecting the petition u/s 311 CrPC is concerned is perverse and liable to
interfered with.

15. In view of my above discussions, the revision petition stands

allowed. The impugned order dated 24.05.2017 passed in G.R. Case No.
595/2014 by learned JMFC, Charaideo at Sonari is set aside. The petition No.
593/2017 dated 04.03.2017 U/S 311 Cr.P.C. as filed by the petitioner-
informant before the learned trial court stands allowed. Learned trial court is
directed to allow the prosecution to recall/re-examine the witnesses as
mentioned in the petition No. 593/17 U/S 311 Cr.P.C. and to prove the
documents by giving sufficient opportunities.

16. It is further provided that before issuing summons to witnesses,

the petitioner/informant shall submit the original documents in court and copy
of which are to be provided to the accused side before fixing the date for
evidence. The parties are directed to bear their own costs.

17. Both the parties are directed to appear before learned Judicial
Magistrate First Class Charaideo Sonari on 22.02.2018 for further instruction.
On that date, the informant shall submit all the documents in original before
trial court with copy thereof for accused side and upon receipt of documents,
court shall fix a date of re-examination/further evidence of witnesses
mentioned in the petition.

18. Send back the case record of G.R. Case No. 595/2014 to the
learned trial court with a copy of the judgment.

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19. Judgment is pronounced in open court. The instant Crl. Revision
is disposed of on contest.

20. It may be mentioned here that originally the case was fixed for
judgment on 20.01.2018 but as on that day, self was on leave, case is fixed
today for order.

Given under my hand & Seal of this Court on this the, 30 th day of
January 2018 at Sivasagar.

Sessions Judge,
Sivasagar:

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