S.311 CrPC | Error Different From Lacuna, Courts Should Be Magnanimous In Allowing Errors By Parties In Trial To Be Corrected : Kerala High Court

The Kerala High on Monday held that principles of fair trial demands that no party be denied the opportunity to correct its errors and that courts must be magnanimous in allowing such mistakes to be corrected.

A single bench of Justice K Babu observed that an error or omission on the part of a party to trial is not to be confused with lacuna. While a lacuna points to an intrinsic weakness in the case of a party, an error might be a mere oversight or omission. The court cannot deny a fair trial by refusing any party an opportunity to correct these errors.

“The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as “lacuna”, which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected. The function of a criminal Court is the administration of criminal justice and not to concentrate on omissions and errors.”

The court in this case was examining the scope and extent of Section 311 of the Code of Criminal Procedure in re-examining a witness that had already been examined. Under this section, a witness can be re-examined at any stage of inquiry, trial, or other proceedings if the court is of the opinion that such person’s evidence is essential for making a just decision in the matter. The court observed that:

“The Section essentially is intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.”

The court was hearing a petition filed by a person facing charges under Sections 450 and 376 of the Indian Penal Code, Sections 4, 3, 6, 5(i), 6, and 5(q) of the Protection of Children from Sexual Offences Act, 2012 and Section 75 of the Juvenile Justice (Care and Protection) Act, 2015.

The accused had filed an application under Section 311 CrPC before the court below for re-examining the victim, stating that certain contradictions in the evidence of the victim were not brought on record by the previous lawyer engaged by him. The court below had rejected the application on the ground that “the victim had gone into a swoon during the cross-examination” and that the accused had already been given sufficient opportunity to examine the witness.

The counsels for the petitioner Advocates M.P.Madhavankutty, Mathew Devassi, Ananthakrishnan A. Kartha and Remya M. Menon, contended that an error of a previous lawyer should not cause prejudice to the petitioner.

It was the case of the Public Prosecutor, Advocate G Sudheer that the petitioner was only attempting to prolong the trial and that he had already been given enough opportunity to cross-examine the victim.

The court observed that a ‘fair trial’ is a facet of Article 21 of the Constitution and is relevant while examining the scope of Section 311 CrPC. The court also noted that under Section 311 it has very wide powers to examine any witness to ensure a just decision is made in the case. However, this power must be used judicially and not capriciously or arbitrarily by the court. The court remarked that the additional evidence received, should not be a disguise for a retrial or to change the nature of the case.

“The aid of Section 311 Cr.P.C. should be invoked 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.”

The case of the public prosecutor was that the petitioner was attempting to fill up a lacuna in his case with his Section 311 application. The court while disagreeing with this contention observed that the court cannot deny the parties and opportunity to correct their errors and that this cannot be a ground to deny a fair trial to the petitioner.

The prosecution also averred that asking a minor victim to testify repeatedly about the incident is violative of Section 33(5) of the POCSO Act. However, the court held that for the purpose of Section 33(5) of the Act “the relevant age is the age at the time of examination of the witness”. At the age of examination of the victim, she was already 22 years old and no longer a minor. Hence, the bar under Section 33(5) of the POCSO Act would not be applicable in the matter, the court concluded.

The court set aside the order of the trial court and directed it to facilitate further examination of the victim in accordance with law.

Case Title: Manu Dev V XXX and Another

Citation: 2023 LiveLaw (Ker) 82

Click to read/download the judgment