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

 on 14 07 2021 on 14 07 wp 1658 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1658 OF 2021 Nayna Rajan Guhagarkar Age: 48 Address : Chawl No. 479 2707 Mahesh Nagar Chowk Near Maruti Mandir Sant Tukaram Nagar Pimpri Pune ...Petitioner VersusThe State of Maharashtra Through Yerwada Police Station Vide C.R. 3021 2015 ...RespondentMr. Aashish Satpute for the Petitioner Mr. S. S. Hulke A.P.P for the RespondentState CORAM : REVATI MOHITE DERE J. TUESDAY 13 th JULY 2021 JUDGMENT : 1Heard learned counsel for the parties.2Rule. Rule is made returnable forthwith with the consent ofthe parties and is taken up for final disposal. Learned APP waives serviceon behalf of respondentState. SQ Pathan 1 6 on 14 07 2021 on 14 07 wp 1658 2021.doc3By this petition the petitioner has impugned the order dated 2ndFebruary 2021 passed by the Additional Sessions Judge Pune belowExhibit 1 in Special CaseNo. 715. Learned counsel for thepetitioner submits that it was impermissible for the learned Judge to recallthe complainant Sujata Sutar to prove the memory card seized in thepresent case in the peculiar facts of this case. He submits that theimpugned order dated 2nd February 2021 was passed taking recourse toSection 311 of the Code of Criminal Procedureafter thepetitioner had disclosed his defence in the written notes of argumentssubmitted on his behalf under Section 314 of Cr.P.C. He submits that theimpugned order was passed after the learned Judge had completedrecording of evidence of witnesses after recording 313 statement of thepetitioner and after hearing the arguments in the said case. He submits thatit was not permissible for the learned Judge to summon the complainant Sujata Sutar to fill in the lacunae in the prosecution evidence moreparticularly after the petitioner had placed on record her written arguments.Learned counsel relied on the judgments in the cases of B. D. Goelv. Ebrahim Haji Husen Sanghani & Ors.1 Shankar Lotlikar v. Pundalik12001 Cri.L.J. 450 SQ Pathan 2 6 on 14 07 2021 on 14 07 wp 1658 2021.docVenktesh Verlekar2 and Nayana Rajan Guhagarkar v. The State ofMaharashtra3. 4Learned A.P.P opposes the application. 5Perused the papers. The petitioner is facing prosecution forthe offence punishable under Sections 7 13(1)(d) and 13(2) of thePrevention of Corruption Act. After investigation charge sheet was filed asagainst the petitioner. The prosecution in support of its case examined itswitnesses. After prosecution closed its evidence the statement of thepetitioner was recorded under Section 313 Cr.P.C. and her written say wasfiled. Thereafter the prosecution advanced arguments on behalf of theState and the advocate for the petitioner also advanced his submissions on6th January 2021. On 7th January 2021 written notes of arguments werefiled by the petitioner’s advocate alongwith a list of citations. On 8thJanuary 2021 learned A.P.P replied to the arguments and as such thearguments of both the parties had concluded by 8th January 2021. Thenoting of 8th January 2021 as reflected in the Roznama annexed to thepetition shows that the matter was adjourned for judgment on 11th January2021. On 11th January 2021 the matter was again adjourned for judgment2AIR Online 2020 Bom 13593Cri. APL 1496 2016 dated 24 01 2018 SQ Pathan 3 6 on 14 07 2021 on 14 07 wp 1658 2021.docon 21st January 2021. On 2nd February 2021 the impugned order waspassed by which the learned Additional Sessions Judge issued summons toSujata Sutar and panch Nayna Rishikesh Patil and the Investigating Officer D.C.P ACB Pune was directed to provide appropriate instruments forplaying of memory card in the Court with speakers. A perusal of theimpugned order shows that the learned Judge whilst perusing the evidence noticed that the memory card which allegedly contained the conversationbetween 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 tookrecourse to Section 311 Cr.P.C and passed the impugned order statingtherein that since the memory card seized in the case was essentialevidence it was necessary to recall the witnesses for proving the saidmemory card. It is not in dispute that recording of evidence was over andso were the arguments advanced by the prosecution as well as thepetitioner’s advocate. As noted earlier even written arguments were placedon record by the petitioner’s advocate which document is also annexed asExhibit `C’ to the petition. In point No. 6 at page 66specific defence has been taken. The relevant portion of pointNo. 6 reads as under : SQ Pathan 4 6 on 14 07 2021 on 14 07 wp 1658 2021.doc“POINT NO. 6 : TAPE RECORDER EVIDENCEThat in the present case the tape recorded conversation has not beenplayed in the open court and the same was not heard by any witnessand the voice has not been identified by any witness. The report of voice expert which is directly Exhibited as Exh. 58cannot be read in evidence. The report is not covered u s. 293 ofCr.P.C. and therefore without examining such expert the reportcannot be read in evidence. .”6No doubt under Section 311 Cr.P.C any Court may at anystage of any inquiry trial or other proceeding summon any person as awitness or examine any person in attendance though not summoned as awitness or recall and re examine any person already examined if it isessential to the just decision of the case however at the same time the saidpower under Section 311 cannot be used to fill in the lacunae in theprosecution evidence. Having regard to the peculiar facts of this case thatthe impugned order issuing witness summons for recalling the complainantand panch was passed after arguments were advanced and writtensubmissions were filed on the aspect of memory card not being proved itwas not permissible for the learned Judge to pass the impugned order. Thesame in the facts would clearly tantamount to filling up the lacunae in thecase. It would also result in causing serious prejudice to the petitioner. SQ Pathan 5 6 on 14 07 2021 on 14 07 wp 1658 2021.doc7Having regard to the aforesaid the impugned order dated 2ndFebruary 2021 passed by the learned Additional Sessions Judge Pune below Exhibit 1 in Special CaseNo. 715 is quashed and set aside.8Rule is made absolute and petition is disposed of in theaforesaid terms. REVATI MOHITE DERE J. SQ Pathan 6 6 

Summary: 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.