Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. Rather than referring to all the judgments which are cited before us, we would concentrate on Mohan/al Soni which takes into consideration relevant judgments on the scope of 7. 2008 (15) sec 652. 8. 1999 (6) sec 11 o. MANNAN SK & ORS. v. STATE OF WEST BENGAL 163 & ANR. [RANJANA PRAKASH DESAI, J.] Section 311 and lays down the principles. Mohan/al Soni is followed in all subsequent judgments. In Mohan/al Soni this Court was considered the scope of Section 540 of the Code of Criminal Procedure, 1898 (the old code) which is similar to Section 311 of the Code. This Court observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. The relevant observations of this Court are as under: " …….. . In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." This Court further observed as under: "… . . . . .. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the c 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 the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
12. While dealing with Section 311 of the Code in Rajendra Prasad this Court explained what is lacuna in the prosecution as under: "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 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."
13. Reference must also be made to the observations of H this Court in Zahira Habibulla H. Sheikh and anr. v. State of MANNAN SK & ORS. v. STATE OF WEST BENGAL 165 & ANR. [RANJANA PRAKASH DESAI, J.] Gujarat and ors9 where this Court described the scope of Section 311 of the Code as under: "Object of the Section is to enable the court to arrive at the truth irrespective of the fac.t that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public inlj:Jrest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
14. If we view the present case in light of the above judgments, we will have to sustain the High Court's order. PW15- SI Dayal Mukherjee stated in the court that he had recorded the statement of deceased Rupchand Sk. Thus, this fact was known to the defence. He was cross-examined by the defence. Inadvertently, the said statement was not brought on record through PW15-SI Dayal Mukherjee. Rupchand Sk died after the . said statement was recorded. The said statement, therefore, became very vital to the prosecution. It is obvious that the prosecution wants to treat it as a dying declaration. Undoubtedly, therefore, it is an essential material to the just decision of the case. Though, the fact of the recording of this statement is deposed to by PW15-SI Dayal Mukherjee, since due to oversight it was not brought on record, application was made under Section 311 of the Code praying for recall of PW15-SI Dayal Mukherjee. This cannot be termed as an inherent weakness or a latent wedge in the matrix of the prosecution case. No material is tried to be brought on record surreptitiously to fill-up the lacuna. Since the accused knew that such a statement was recorded by PW15-SI Dayal Mukherjee, no prejudice can be said to have been caused to the accused, 9. (2004) 4 sec 1ss. A who will undoubtedly get a chance to cross-examine PW15-SI Dayal Mukherjee.
15. It is true that PW15-SI Dayal Mukherjee was once recalled but that does not matter. It does not prevent his further recall. Section 311 of the Code does not put any such limitation on the court. He can still be recalled if his evidence appears to the court to be essential to the just decision of the case. In this connection we must revisit Rajendra Prasad where this Court has clarified that the court can exercise power of re-summoning C any witness even if it has exercised the said power earlier. Relevant observations of this Court run as under: "We cannot therefore accept the 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 the prosecution discovered /aches 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."
16. It was strenuously contended that the incident had F taken place on 13/12/1992 and, therefore, the application made after a gap of 22 years must be rejected. This submission must be rejected because PW15-SI Dayal Mukherjee was re-examined on 17/5/2011 and application for his recall was made just one month thereafter. It is true that the G incident is dated 13/12/1992 and the trial commenced in 2001. These are systemic delays which are indeed distressing. But once the trial began and the Investigating Officer was re- examined on 17/5/2011, the prosecution made an application for recall just one month thereafter. There was no delay at that H stage. The submissions that PW15-SI Dayal Mukherjee has MANNAN SK & ORS. v. STATE OF WEST BENGAL 167 & ANR. [RANJANA PRAKASH DESAI, J.] grown old; that his memory must.not be serving him right; that he can be tutored are conjectural in nature. In any case, the accused have a right to cross-examine PW15-SI Dayal Mukherjee. The accused are, therefore, not placed in a disadvantageous position.
17. We must now turn to the judgmenfs cited by the appellants. In State of Rajasthan v. Dau/at Ram this Court was dealing with an appeal from an order of acquittal. The prosecution had not proved beyond reasonable doubt that the opium seized was the opium which was sent to the public analyst. At th.e trial the prosecution had made an application under Section 540 of the old Code (Section 311 of the Code) for summoning three persons under whose custody the seized sar:nples were kept. It was rejected by the trial court. An application was made before the High Court for additional evidence which was later withdrawn. This Court commented on the vacillating approach of the State and observed that the prosecution should not be allowed to fill-up the lacunae left at the trial, at the appellate or revisional stage. This case turns on its own facts and has no application to the present case.
18. Mishrilal, on which reliance is placed by the appellants, has also no application to this case. In Mishrilal a witness was examined and cross-examined in a murder trial on the same day. In Juvenile Court where some of the juveniles were tried, he gave evidence subsequently. He stated that he was not aware as to who attacked him. He was recalled by the Sessions Court and confronted with the statement given by him before the Juvenile Court on the basis of which the accused were acquitted. This Court did not approve of the procedure adopted by the Sessions Court. This Court observed that a witness could be confronted only with a previous statement made by him. The day on which he was first examined in the Sessions Court, there was no such previous statement. This Court observed that the witness must have given some other version before Juvenile Court for some extraneous reasons. He should [2014} 8 S.C.R. A not have been given an opportunity at a later stage to completely efface the evidence already given by him under oath. It is the wrong procedure and attempt to efface evidence which persuaded this Court to observe that once the witness was examined in-chief and cross-examined fully such witness B should not have been -recalled and re-examined to deny the c evidence which he had already given in the court even though he had given an inconsistent statement before any other court subsequently. It is pertinent to note that this Court did not discuss Section 311 of the Code.
19. Mir Mohd. Omar has no application to this case as it deals with a totally different fact situation. In that case this Court has not considered Section 311 at all.
20. In the ultimate analysis we must record that the D impugned order merits no interference. We must, however, clarify that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. We also make it clear that whether deceased Rupchand Sk's statement recorded by E PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have- not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal F with it independently.
21. In the result the appeal is dismissed. Needless to say that the interim orders passed by this Court on 15/10/2012, 03/ 05/2013 and 27/01/2014 staying the impugned order dated 11/ 05/2012 passed by the Calcutta High Court in CRR No. 2385 G of 2011 are vacated. The trial court shall proceed with the case and ensure that it is concluded at the earliest. Kalpana K. Tripathy Appeal dismissed.