The Special Public Prosecutor, thereafter, moved an application, purporting to be one under Section 311 Cr.
The respondent herein Fatehsinh Mohansinh Chauhan is A 7 and he was assigned the role of instigation Maro Maro, Pakdo Pakdo.
Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. and two other persons.
After usual investigation charge sheet was submitted against all the nine accused and the case was companymitted to the Court of Sessions.
It was also submitted that the prosecution was number entitled to fill in a lacuna by moving an application under Section 311 Cr.
P.C., praying that Shri S.P. Marwah, the then Collector of Dadra Nagar Haveli, Silvassa and currently posted as Director, Jal Nigam Board, New Delhi, may be summoned and examined as a witness.
The respondent examined two witnesses, viz.,
The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court.
This appeal, by special leave, has been preferred against the judgment and order dated 8.10.2004 of Bombay High Court by which the revision preferred by the respondent was allowed and the order dated 12.8.2004 passed by the learned Sessions Judge, Dadra Nagar Haveli, Silvassa, summoning Shri S.P. Marwah, the then Collector, Dadra Nagar Haveli, Silvassa under Section 311 Cr.
P.C for the purpose of summoning a witness.
A lacuna in the prosecution is number to be equated with the fallout of an oversight companymitted by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses.
P.C. which was recorded after close of the prosecution evidence, the respondent took a plea of alibi and submitted that he is a prominent member of a political party and at the time of the incident, he was present in the chamber of Shri S.P. Marwah, Collector, Dadra Nagar Haveli, Silvassa, as a meeting had been called there.
Arising out of S.L.P. Crl.
No.5459 of 2004 P. MATHUR, J. Leave granted.
One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of accused A 7, A 8 and A 9 accused A 1 to A 6 had assaulted the deceased Bapjibhai Bhoya and caused injuries to some others.
P.C. was set aside.
In his statement under Section 313 Cr.
This prayer was opposed on behalf of the respondent principally on the ground that right from the beginning the plea of the respondent was that at the time of the incident he was present in the chamber of the Collector where a meeting had been called but the investigating agency did number make any investigation in that regard, number made any attempt to companylect the relevant evidence and at such a belated stage when the entire evidence had been recorded and the trial was almost over, the prosecution companyld number be permitted to fill in the lacuna.
DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar, Executive and Sector Magistrate, Dadra, in support of his plea of alibi that he was present in the chamber of Shri S.P. Marwah.
