The Kerala High Court opined the scope of Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) which is to discover the relevant facts and obtain proper proof of such facts so that a just decision can be passed. It was opined that the power under this section should not be used to fill up any gaps by the prosecution or defence.
Such a wide discretionary power should be used judicially and not arbitrarily. It was propounded that such expansive power is given to the Court so that the record is kept straight and without any ambiguity to ensure no prejudice is caused to any party.
In the present case, the High Court noted that an error or omission done by a lawyer cannot be termed as a lacuna. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. A fair trial cannot be denied to the Petitioner.
Brief Facts:
The Petitioner is Accused No.3 facing charges under the Indian Penal Code, 1860 and the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”). The counsel representing Petitioner also represents Accused No. 4 and 5. The role of Petitioner is alleged to be different from that of Accused No. 4 and 5.
The Petitioner engaged a new lawyer who informed him that there were certain discrepancies in the testimony of the prosecution witness and therefore, an application under Section 313 of the Cr.P.C. should be preferred.
However, the said application under Section 313 was rejected. Hence, the present application.
Contentions of the Petitioner:
It was contended that the victim is 22 years and therefore, the bar of Section 33(5) of POCSO will not apply. Further, the actions of the previous counsel shall not prejudice the rights of the Petitioner
Observations of the Court:
It was noted that the victim at the time of the commission of the offence was below 18 years. However, for purpose of Section 33(5) of POCSO, the relevant age is the age at the time of examination, which was 22 years.
The Bench then examined the scope of Section 311 Cr. P.C. which is to discover the relevant facts and obtain proper proof of such facts so that a just decision can be passed. It was opined that the power under this section should not be used to fill up any gaps by the prosecution or defence.
Such a wide discretionary power should be used judicially and not arbitrarily. It was propounded that such expansive power is given to the Court so that the record is kept straight and without any ambiguity to ensure no prejudice is caused to any party.
In the present case, the High Court noted that an error or omission done by a lawyer cannot be termed as a lacuna. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. A fair trial cannot be denied to the Petitioner.
The Decision of the Court:
Therefore, based on the aforementioned findings, the order rejecting the Section 311 application was set aside and the present CRL.M.C. was allowed.
Case Title:Manu Dev v. XXX & Anr.
Coram:Hon’ble Mr. Justice K. Babu
Case No.:CRL. MC No. 1034 of 2023
Advocates for Petitioner:Advs. Sri M.P. Madhavankutty, Mathew Devassi, Ananthakrishnan A. Kartha, Remya M. Menon
Advocate for Respondent:Adv. Sri G Sudheer (PP)
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