- (1.) B. K. Rathi, J. Heard Sri Pradeep Chandra, learned Counsel for the applicant and the learned A. G. A.
(2.) THE applicant is an accused in Sessions Trial No. 69 of 2001 pending in the Court of Fast Track-I, Kanpur Nagar. THE argument of the case concluded and the case was reserved for judgment. THEreafter, the prosecution moved an application to call scribe of the F. I. R. under Section 311 Cr. P. C. for evidence. THE said application has been allowed. Aggrieved by it, the present petition has been preferred. It is contended that the witness cannot be summoned to fill up the lacunae. Learned Counsel in support of his argument has referred two decisions : (1) B. D. Goel v. Ebrahim Haji Husen Sanghai and others, reported in 2001 Cri. L. J. 450 (Bombay High Court) and (2) M/s. Dandy Knit Garments and another v. M/s. Subiksha Spinners (P) Ltd. , reported in 2000 Crl. L. J. 624 (Madras High Court ). However, it is not necessary to refer the law laid down in these cases. The apex Court in a recent decision Rajendra Prasad v. The Narcotic Cell, reported in 1999 (39) A. C. C. 333, has laid down a clear law on the point and also explained as to amount to filling up the lacunae. Paragraph 6 and 7 of the judgment are material which are as follows: " (6) 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 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 proned. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. " (7) 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 fore-closed 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. "
(3.) CONSIDERING the arguments and the law laid by the apex Court in this case I do not find any illegality in the order of the trial Court in summoning the witness under Section 311 Cr. P. C. It cannot be accepted that the prosecution want to fill up the lacuna. The petition fails and is hereby dismissed. Petition dismissed. .;