Court's Power To Summon Any Person U/S 311 Of CrPC Cannot Be Used To Fill Lacunae In The Prosecution Evidence – Bombay High Court

"No doubt, under Section 311 CrPC, any Court may, at any stage of any inquiry, trial or other proceedings 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,"Justice Revati Mohite Dere held.

The court further observed that the trial judge's decision to re-examine the complainant after the judgment was reserved for orders would seriously cause prejudiceto the petitioner.

The Case

Former Sales Tax Officer Nayna Rajan Guhagarkar is undertrial for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, for allegedly demanding and accepting a bribe of Rs. 1,000.

Guhagarkar, in her Criminal Writ Petition filed through advocate Ashish Satpute assailed the Additional Sessions Judge, Pune's order fromFebruary 2, 2021, recalling the complainant of the case Sujata Sutar, to the seizure of the memory card.

The complainant was summoned after the prosecution completed recording evidence of witnesses, and even final arguments were completed. Satpute argued that it was impermissible for the Judge to summon the complainant to fill in the lacunae in the prosecution evidence, more particularly, after he had placed on record her written arguments.

He relied on the judgments in B. D. Goel v. Ebrahim Haji HusenSanghani&Orsand ShankarLotlikar v. PundalikVenkteshVerlekar.

In the order, Justice Dere noted that Guhagarkar filed her final written notes of argument on January 7, 2021 and the next day, the matter was reserved for judgment. Then on February 2 the order recalling the complainant was passed.

Justice Dere said that the Judge, whilst perusing the evidence, noticed that the memory card that allegedly contained the conversation between the complainant and the accused before and at the time of the trap was not placed on record during the trial and decided to summon the complainant.

"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 petitioner."

Case: Nayna Rajan Guhagarkar Vs State of Maharashtra

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