Judgment:
P.K. Musahary, J.
1. Heard Mr. M. Kar Bhowmik, learned Sr. Counsel appearing for the petitioner and Mr. P.K. Biswas, learned Counsel for the respondent No. 1. Also heard Mr. R. C. Debnath, learned P. P. In-charge appearing for the State/ respondent No. 2.
2. The petitioner who is the manager and constituted attorney of Ms. Radiohms Agencies filed a written complaint against the accused respondent No. 1 before the Court of the Chief Judicial Magistrate, West Tripura, Agartala alleging misappropriation of value of goods amounting to Rs. 1,80,637.28 during the tenure of the accused as one of the employees of Radiohms Agencies which was forwarded to the police for registering the same as FIR. Eventually a case being G.R. 999/96 under Section 406/420 IPC was registered and after completion of investigation, charge was framed under Section 408/420 IPC. Trial was commenced in the Court of learned Additional CJ. M, West Tripura, Agartala.
3. During the trial, the petitioner complainant engaged his Counsel to assist the prosecution as per law. The prosecution examined P.W. 1 to 5 on different dates. The petitioner was examined as P.W. 6 on 24.1.2000. Thereafter, the petitioner filed an application on 18.3.2000 praying for calling of certain documents from the possession of the petitioner himself, as the same are required for the purpose of proving the charges, and also for issuing summons for the same.
4. The learned Additional C.J. M., West Tripura, Agartala after hearing the parties rejected the said prayer by an order-dated 27.3.2000. Against the said order of rejection, the petitioner preferred a revision petition under Section 397 and 399 Cr.P.C. before the learned Sessions Judge, West Tripura, Agartala which was registered as Cr. Rev. No. 23(2)/2000 for setting aside the Additional C.J.M's order dated 27.3.2000. The learned Additional Sessions Judge (Court No. 3), West Tripura, Agartala after hearing the parties passed a judgment on 4.5.2001 rejecting the aforesaid revision petition. Being aggrieved, the present Crl. misc. case has been preferred by the petitioner for quashing both the impugned order dated 27.3.2000 passed by the learned Additional C.J.M., West Tripura and the judgment dated 4.5.2001 rendered by the learned Additional Sessions Judge, West Tripura, Agartala.
5. In his application filed before the learned Additional C.J.M., West Tripura, Agartala, the petitioner sought to call the following documents:
1. Stock Register Book in respect of Transactions during 1st to 31st 95 in respect of transactions of Agartala Depot of M/s Raidiohms Agencies.
2. Sales Register book in respect of Transactions during 1st to 31st December '95 in respect of sales through Agartala Depot of M/s Radiohms Agencies.
3. Debtors Accounts book in respect of Transactions during 1st to 31st December' 95 in respect of Debts of Agartala Depot of M/s Radiohms Agencies.
4. Main ledger book containing the records of transaction for the financial year commencing from April 1995 to March 1996 of Agartala Depot of M/s Radiohms Agencies.
6. These documents are admittedly under the possession/custody of the petitioner, but there was no explanation from his side why the said documents could not be produced before trial commenced or at the time of examining himself as P. W. 6.
7. Mr. Kar Bhowmik, learned senior Counsel for the petitioner submits that under the provisions of Section 311 Cr.P.C., the Court has the power to summon material witnesses at any stage of any enquiry, trial or other proceedings under the Code of Criminal Procedure and summon any person as witness or recall and re-examine any person already examined, if his evidence appears to be essential to the just decision of the case. He further submits that under the provision of 242 (2) Cr.P.C, the Magistrate may on the application of the prosecution issue summon to any of the witnesses directing him to attend or to produce any document or other things. The learned Magistrate as well as the learned Additional Sessions Judge without applying its judicial mind rejected the petition for calling of documents and the same are, therefore, liable to be quashed and this Court may direct the learned Courts below to call for the documents and also recalles petitioner to prove his case.
8. Mr. Biswas, learned Counsel for the respondent No. 1 submits that there is no dispute in regard to power of the Court under Section 311 Cr.P.C. for re-calling or re-examining any person already examined and there cannot be any legal ground to object the prayer of the petitioner for being summoned and recalled himself or any other witnesses already examined, but an opportunity should be given to the other party for refusal. He also submits that the petitioner should not be allowed to use the provisions of Section 311 for filling up the lacuna by the prosecution to the disadvantage of the respondents or to cause serious prejudice to the defence of the accused.
9. In regard to the provisions under Section 242 Cr.P.C. Mr. Biswas, learned Counsel for the respondent No. 1 submits that benefit of this Section can be availed only if the accused refuses to plead or does not plead or claims to be tried or the Magistrate does not convict the accused under Section 241 Cr.P.C.
10. In this is case, the petitioner is a complainant and not an accused and, as such, according to Mr. Biswas, he cannot make any application before the Magistrate for issuing summons to any of his witnesses directing him to attend or to produce any document or other things. Moreover, it is submitted by the learned Counsel for the respondent No. 1 that the petitioner himself was negligent in producing the documents sought to be called although they were very much under his possession and which could be produced by him before trial commenced or at the time of examining himself as P.W. 6. At this stage, there is no scope either under Section 311 or 242 Cr.P.C. for allowing the petitioner to produce the documents to the disadvantage of the respondents.
11. It is submitted at the Bar by Mr. R. C. Debnath, learned P. P. In-Charge that the Trial Court has already recorded the statement under Section 313 Cr.P.C.
12. I have considered the rival submissions made by the learned Counsel representing the parties. The settled position of law is that under Section 311 Cr.P.C, the Court is empowered to summon or examine or re-examine the witnesses at any stage before pronouncement of the judgment, if it appears to the Court to be essential to a just decision of the case by getting at the truth by all lawful means, but under the said Section 311 Cr.P.C, it is not provided that the Court has also power to allow the prosecution/complainant to produce documents after the witnesses were examined. Since the provision of law does not specifically provide for exercise of such power by the Court, in my considered opinion, the learned Courts below committed no error in rejecting the petitioner's prayer. The provisions under Section 242(2) Cr.P.C. although empowers the Magistrate to issue summons to any witnesses directing him to attend or to produce any documents or other thing, but does not provide any opportunity to the prosecution/complainant as aforesaid Section 242 Cr. P.C. has been provided specifically for the accused only, who refuses to plead or does not plead or claims to be tried or not convicted by the Magistrate under Section 241 Cr.P.C.
13. Looking at the provisions of Section 242 Cr.P.C, I am of the considered opinion that no opportunity could be given to the complainant petitioner to produce the documents as sought for by him and the learned Courts below have rightly rejected his prayer.
14. Mr. Kar Bhowmik, learned senior Counsel for the petitioner submits that an opportunity should be provided to the petitioner at least to file the documents as listed in his application for perusal of the learned Magistrate and to decide whether the said documents are required for just decision of the case. This submission has been strongly opposed by Mr. Biswas, learned Counsel for the respondent No. 1. According to him, such concession cannot be made in view of the clear provisions of law and allowing such prayer would seriously prejudice the accused respondent No. 1. He further sumits that it would amount to filling up the lacuna in prosecution evidence.
15. The Apex Court in the case of Rajehdra Prasad v. Narcotic Cell as reported in : 1999CriLJ3529 held that reexamination of prosecution witnesses cannot be permitted merely for filling up lacuna in prosecution evidence and a lacuna in prosecution is not to be equated with the fall out of an oversight committed by a Public Prosecutor during trial, either in producing the relevant materials or in eliciting relevant answers from witnesses. It would be beneficial to quote Para-7 of the judgment of the Apex Court in the said case:
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 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 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.
16. In view of the above facts and circumstances, the provisions of law under Cr.P.C. and also settled position of law as discussed above, I am not inclined to interfere with the order and judgment of the Courts below.
17. This criminal misc. petition is dismissed.
18. Send down the L.C. records immediately.