The High Court dismissed the applicants' writ petition challenging the Sessions Judge's order permitting examination of witnesses under section 294 CrPC. The court relied on precedent to hold that correcting prosecutorial inadvertence is not filling a lacuna.
The writ petition is dismissed. No costs.
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3-apl98-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.98 OF 2023
Digitally signed byATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.03.16 10:43:58 +0530
Ganesh Valmiki Chitalkar… Applicant
V/s.
The State of Maharashtra… Respondent
Mr. Ritesh M. Thodbe with Mr. Sagar S. Tambe for the
applicant.
Mr. M.G. Patil, APP for the respondent/State.
CORAM :AMIT BORKAR, J.
DATED:MARCH 15, 2023
P.C.:
1.By the impugned order, the learned Sessions Judge has
allowed an application under section 294 and an application
issuing witness summons to the witnesses named in the
application.
2.The main contention of the applicant is that both the
applications were not maintainable and in any case such
permission could not have been granted by the Sessions Judge as
the prosecution had already examined eleven witnesses and the
accused had opened their defense. Allowing such application
would amount to filling up of lacuna.
3.On perusal of the impugned order, it appears that the
application under section 294 requires prosecution to call upon
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accused either to admit or deny genuineness of the documents.
From the reply filed by the petitioner, it is clear that the accused
denied the genuineness of such documents and, therefore,
prosecution filed an application seeking permission to examine the
witnesses.
4.The contention about filling up of lacuna has already been
interpreted by the Apex Court in Rajendra Prasad v.
Narcotics Cell reported in (1999) 6 SCC 110. The lacuna in the
prosecution’s case has been interpreted in paragraphs 7 and 8 of
the judgment, which reads thus:
“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 or 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 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 prone. 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.
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 ti should normally go to
the accused in the trial of the case, but an 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
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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.”
5.The Apex Court has held that a lacuna in the prosecution is
not to be equated with the fall out of an oversight committed by a
public prosecutor during trial, either in producing relevant
material or in eliciting relevant answers from the witness. The
mistakes during conducting of trial cannot be understood as
lacuna which Court cannot fill up. It has been held that no party in
a trial can be foreclosed from correcting error. If the prosecution
fails to bring on record proper evidence or relevant material due to
inadvertence, the Court should be under magnanimous in
permitting such mistakes to be rectified. The function of the
Criminal Court is administration of criminal justice and not to
count errors committed by the parties.
6. In that view of the matter, I find no reason to interfere with the positive exercise of the jurisdiction by the learned Sessions Judge.
7. The petitioner shall have remedies as are available in law to meet the evidence sought to be brought on record by prosecution.
8. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
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2 issues framed by the court
Whether the Sessions Judge was justified in allowing an application for examination of witnesses under section 294 CrPC after the accused had opened defense.
Whether the prosecution's request to correct an inadvertence amounts to filling a lacuna in the prosecution case.
Colour shows how this judgement treated each authority
Rajendra Prasad v. Narcotics CellReferred¶4
(1999) 6 SCC 110 · Who else cites this
1 provisions across 1 enactments
Ganesh Valmiki Chitalkar
The State of Maharashtra
AMIT BORKAR
As recorded by the court registry
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