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Section 311 of CrPC cannot be used to fill lacunae in the prosecution evidence: Bombay High Court

Under Section 311 Cr.P.C, 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, held, Justice Mohit Dere, while adjudicating the matter in Nayna Rajan v. State of Maharashtra; [CRIMINAL WRIT PETITION NO.1658 OF 2021].

By this petition, the petitioner has impugned the order dated 2nd February 2021 passed by the Additional Sessions Judge, Pune. Learned counsel for the petitioner submits that it was impermissible for the learned Judge to recall the complainant Sujata Sutar, to prove the memory card seized in the present case, in the peculiar facts of this case. He submits that the impugned order dated 2nd February 2021 was passed taking recourse to Section 311 of the Code of Criminal Procedure (`Cr.P.C’), after the petitioner had disclosed his defence in the written notes of arguments submitted on his behalf under Section 314 of Cr.P.C. He submits that the impugned order was passed 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.

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 alongwith 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 Court upon considering the aforesaid facts stated that; “A perusal of the impugned order shows that the learned Judge 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. 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.”

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