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Courts cannot use the power under Section 311 to fill in the lacunae in the prosecution evidence: Bombay High Court

The power given to the court under section 311 of the CrPC where at any stage of the inquiry, trial or other proceeding may summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, if it is essential to the just decision of the case cannot be used to support the prosecution evidence since that would be a gross violation of the rights of the petitioner. This was decreed by the Hon’ble Justice Revathi Mohite Dere in the case of Nayna Rajan Guhagarkar Vs. The state of Maharashtra [CRIMINAL WRIT PETITION NO.1658 OF 2021] on the 13th of July 2021 before the Hon’ble High Court Of Judicature at Bombay.

The brief facts of the case are, The petitioner is facing prosecution for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. After investigation, charge-sheet was filed as against the petitioner. The prosecution in support of its case, examined its witnesses. After prosecution closed its evidence, the statement of the petitioner was recorded under Section 313 Cr.P.C. and her written say was filed. Thereafter, the prosecution advanced arguments on behalf of the State and the advocate for the petitioner also advanced his submissions on 6th January 2021. On 7th January 2021, written notes of arguments were filed by the petitioner’s advocate along with a list of citations. On 8th January 2021, learned A.P.P replied to the arguments and as such the arguments of both the parties had concluded by 8th January 2021. The noting of 8th January 2021 as reflected in the Roznama annexed to the petition shows that the matter was adjourned for judgment on 11th January 2021. On 2nd February 2021, the impugned order was passed, by which, the learned Additional Sessions Judge issued summons to Sujata Sutar and panch Nayna Rishikesh Patil and the Investigating Officer/ D.C.P, ACB, Pune was directed to provide appropriate instruments for playing of memory card in the Court, with speakers. The petitioner prays that such a summon was beyond the ambit of Section 311 and was causing serious prejudice towards him.

The counsel for the petitioner submitted that the impugned order under section 311 of the CrPC was passed was after the learned Judge had completed recording of evidence of witnesses; after recording 313 statement of the petitioner and after hearing the arguments in the said case. He submits that it was not permissible for the learned Judge to summon the complainant- Sujata Sutar to fill in the lacunae in the prosecution evidence, more particularly, after the petitioner had placed on record her written arguments. However, the counsel for the respondent opposes the application. The learned judge heard both the counsels and observed that,  impugned order shows that the learned Judge of the trial court  whilst perusing the evidence, noticed that the memory card which allegedly contained the conversation between the complainant and the accused before and at the time of the trap, was not placed on record/verified during trial. The Court, on its own, took recourse to Section 311 Cr.P.C and passed the impugned order stating therein that since the memory card seized in the case was essential evidence, it was necessary to recall the witnesses for proving the said memory card. It is not in dispute that recording of evidence was over and so were the arguments advanced by the prosecution as well as the petitioner’s advocate.

The court decreed that, “No doubt, under section 311 CrPC, any court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to filling up the lacunae in the case. It would also result in causing serious prejudice to the petition”. Thus, the court set aside the impugned order dated 2nd February 2021 and disposed of the petition.

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