* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1621 OF 2007 W I T H CRIMINAL APPLICATION NO. 238 OF 2008 W I T H CRIMINAL APPLICATION NO. 286 OF 2008 Navin s/o.Tolaram Advani .... Petitioner. V/s. State of Maharashtra .... Respondents. ---------- Ms. Manjula Rao with Mr.Manoj Mirchandani i/by. Mr.A.M.Saraogi, adv.for petitioner. Mr.Niranjan Mundargi i/by. Mr.H.V.Kode, advocate for respondent no.2. Mrs.A.A.Mane, APP for State- Respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 11TH FEBRUARY, 2009. P.C. : 1. This petition is filed under Article 227 of the Constitution of India and Section 482 Cr.P.C. to challenge the correctness and legality of the order dated 8th August, 2007 passed by the court of Sessions in Revision Application No. 533 * 2 * of 2007. By the said order an application filed by the State under Section 311 Cr.P.C. was allowed. 2. Respondent no.2, the original complainant filed a complaint with the police alleging that the applicant was making anamous calls to him and to his son Sanjay, passing bad remarks about one Ms.M.S.Mariata who was to marry his son. The complaint also alleges incident of painting dirty words on the car of respondent no.2 on the doors of his shop. It appears that the police had suggested that respondent no.2 should make recording of the conversation of the telephone calls which he had done. Finally, offence under Section 506(ii) IPC was registered against the petitioner at Gamdevi police station. After completion of the investigation, charge-sheet was filed in the year 1992 and charges against him came to be framed on 14th July, 1995. The trial however has got dragged on till date. 3. The record shows that several applications were made by the State for producing before the trial court, as well as, this court the evidence of the cassettes containing telephone conversation recorded by respondent no.2. Those applications were rejected. The State has examined the complainant, P.W.No.1 whose evidence got completed on 17th March, 2001. Five years thereafter i.e. on 29th August, 2006 the State filed an application under Section 311 Cr.P.C. for calling Ms.M.S.Mariata as a witness in the case. That application was opposed by the * 3 * applicant and it came to be rejected by the learned Metropolitan Magistrate by his order dated 22nd December, 2006. This order was carried in revision to the court of Sessions and the impugned order came to be passed thereon. 4. Ms.Rao, learned counsel for the petitioner submits that the application filed by the State under Section 311 Cr.P.C. is nothing but another attempt on its part made at the instance of respondent no.2 to bring in the evidence of cassettes containing recording of the alleged telephone conversation. When all the attempts of respondent no.2 through State in getting the cassettes on record as evidence failed, the provision of Section 311 Cr.P.C. is attempted to be pressed into service. She submits that the learned Sessions Judge has allowed the application with total disregard to the orders passed by this court on the question. She points out that the impugned order does not even refer to the various orders passed by this court. 5. Ms.Rao has taken me through the contents of the application stating reasons for summoning Ms.M.S.Mariata as a witness. It is stated in the application that respondent no.2 was directed by the police and advised to tape record the voice of the caller keeping him in conversation. On 9th February, 1992 when a call came at the residence of respondent no.2, he had picked up the phone. However, the caller wanted to speak to Marietta. The complainant recognised the voice of the caller * 4 * and asked Marietta to speak and keep the caller engaged in conversation. The conversation was tape recorded. Ms.Rao, submits that it is patent from the application that the prosecution now wants to examine Ms.Marietta for the very purpose of bringing the evidence of tape recorded conversation before the court which has already been disallowed by this court. 6. Mr.Mundargi, the learned counsel for respondent no.2 submits that the purpose in making the application under Section 311 Cr.P.C. was actually different. The evidence that would come on record through Ms.Marietta would not be just that of tape recorded conversation but also of identification of the applicant. He draws attention of the court to para-5 of the application, wherein it is stated that Ms.Marietta had pointed out to respondent no.2 that the applicant was seen loitering near the house of respondent no.2. He further submits that the evidence of Ms.Marietta is relevant and important for the purpose of identification of the applicant also. As regards the identification of the applicant, respondent no.2 has already deposed about the same. 7. Perusal of the record of the case, the application made under Section 311 of Cr.P.C. and the orders passed thereon, makes it clear that the application has been moved by the State at the instance of respondent no.2 for bringing in the evidence * 5 * of the tape recorded conversation. It is to be noted that the arguments in reply to the present petition have been made not by the learned APP but by Mr.Mundargi appearing for respondent no.2. No submissions were infact advanced on behalf of the learned APP. Mr.Mundargi has submitted that the powers under Section 311 Cr.P.C. are wide powers to be exercised by the court for arriving at a just decision of the case. He also submits that these powers are not limited by circumstances of either the witness not been cited in the list of witness or the statement of the said witness not being recorded under Section 161 Cr.P.C. during the course of investigation. Undoubtedly, the court is empowered to summon a material witness, though not summoned as a witness and though not examined under Section 161 Cr.P.C. However this power is to be exercised judiciously as wider the power, the greater is the need for application of judicious mind. The recourse to Section 311 Cr.P.C. cannot be permitted to fill in the lacuna of the prosecution witness. 8. It is obvious in the instant case, that the application made is nothing but an attempt to somehow bring in the evidence of the tape recorded conversation before the court when every direct attempt made for production of the tape recorded conversation has failed. If the submission of Mr.Mundargi that Ms.Marietta is to be examined for the purpose of identification of the applicant is to be considered, it is seen that he has * 6 * already been identified by the complainant in his evidence. Despite repeated rejection of his application, respondent no.1 has persisted in his attempt for the tape recorded conversation. It is seen from the record of the case that Ms.Marietta had been kept out of the case right since the beginning, probably in her own interest. It is alleged that the applicant was making telephone calls using bad language about Ms.Marietta. Despite that the complaint made was not by Ms.Marietta but by respondent no.2, her then would-be father in law. The police had not recorded her statement during the course of investigation. She was not cited as a witness. Though the prosecution had been making every effort to bring in the tape recorded conversation before the court, it had not thought it necessary to examine Ms.Marietta. 9. In the circumstances, I find substance in the argument of Ms.Rao that if Ms.Marietta is allowed to be cross-examinead, it would cause prejudice to the applicant as the prosecution would be allowed to fill in the lacuna in this case. I have perused the impugned order. The learned Sessions Judge has not even so much as referred to the various applications filed by the State and the orders passed by the trial court, the Sessions court as well as this court rejecting the applications for bringing the evidence on record. He failed to appreciate the real purpose and intention behind filing the application under * 7 * Section 311 Cr.P.C. Had he applied his mind to these aspects of the case, probably, the order would have been differed. Considering all the above aspects of the matter, in my opinion, the impugned order cannot be sustained. Hence, the petition is allowed. The order dated 8th August, 2007 passed by the court of Sessions in Revision Application No. 533 of 2007 is hereby quashed and set aside. 10. In view of the disposal of the writ petition, Criminal Application No.238 of 2008 filed by the State for vacating the ad-interim order of stay and Criminal Application No.286 of 2008 for the same purpose do not survive. The same are accordingly disposed off. [JUDGE]