Under section 311, Cr.P.C.,the court has power to summon at any stage, any person as a witness, or examine any person who is in attendance, though she has not been summoned or recall or re-examine any person already examined. The court is enjoined with a duty to do so if the evidence of such person appears to be essential to the just decision of a case. (Zahira Sheikh v. State of Gujarat, (2004) 4 sce 158)
Under section 311, Cr.P.C., It has been held that this power can not be availed of in order to fill, the gaps or lacunae in the prosecution evidence.(Jamatraj Kewalji v. State of Maharastra, AIR 1968 S.C. 178; Mohanlal Shamji v. Union of India, (1991) 1 sec Supp. 271: Rambhau v. State of Maharastra, (2000) 4 sce 759.)
The lacuna in the prosecution according to the Supreme Court, "is not to be equated with the fallow of an oversight committed by a Public Prosecutor either in producing relevant material or in eliciting relevant answers from witnesses." Rajendra Prasad v. Narcotic Cell, (1999) 6 sec 110. The expression "lacuna in the prosecution" has been further explained as "inherent weakness or latent wedge in the matrix of the prosecution case:'
Under section 311, Cr.P.C., Another provision which is, "in a way complimentary" to section 311 Cr.P.C. is section 165 of the Indian Evidence Act, 1872. It invests the court with the power to ask any question, to any witness, at any time about any fact, and to order the production of any document or thing related to any relevant fact. This power can be exercised by the court "in order to discover or to obtain proof of relevant facts." Despite all these provisions, judges of the trial court seldom exercise these powers, either because of the pressure of work, or indifference of the judge who expects the respective parties to prove or defend the case, or because of the notion that he may be attributed with bias. see Zahira Sheikh v. State of Gujarat, (2004) 4 sce 158 at page 189
Ram Chandran vs. State of Haryana AIR 1981 S.C. 1036.
Union of India vs. Prakash Hinduja AIR 2003 S.C. 2612.
- Sarla vs. T.S.Velu, 2000 (Cri.) L.J.2453 (SC).
Navinchandra Majithia vs. State of Meghalaya AIR 2000 S.C.3275.
Zahira Sheikh vs. State of Gujarat (2004) 4 SCC 158.
Popular Mathiah vs. State, (2006) 7 SCC 296.
Prakash Singh vs. Union of India, (2006) 8 SCC 1.
Sheonandan Paswan vs. State of Bihar, AIR 1987 SC 877.
Sheonandan Paswan vs. State of Bihar, AIR 1983 SC 194.
State of Utter Pradesh vs. Chandrika, AIR 1999 S.C. 164.
Sulabh Rewari & Tanya Aggrawal, Wanna Make A Deal? The Introduction of Plea Bargaining in India, (2006) 2 SCC (Cri) J-12.