2021 (7) TMI 1449 - HC - Indian Laws

Court Overturns Recall Order for Witness; Memory Card Evidence Barred to Prevent Prejudicial Gaps in Criminal Case.

The HC set aside the order of the Addl. Sessions Judge, Pune, which recalled the complainant to prove a memory card after the completion of evidence and ... Seeking to recall the complainant Sujata Sutar, to prove the memory card seized in the present case - Section 311 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT:- No doubt, 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. 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. The impugned order dated 2nd February 2021 passed by the learned Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, is quashed and set-aside - petition allowed. Issues Involved:Challenge to the order recalling a witness to prove essential evidence in a criminal case after the completion of evidence and arguments.Detailed Analysis:1. Impugned Order Recalling Witness:The petitioner challenged the order dated 2nd February 2021 passed by the Additional Sessions Judge, Pune, recalling the complainant to prove the memory card seized in the case. The petitioner argued that it was impermissible for the judge to recall the witness after the completion of recording of evidence, petitioner's statement under Section 313 of Cr.P.C., and hearing of arguments. The petitioner contended that the order was passed under Section 311 of Cr.P.C. to fill in the lacunae in the prosecution evidence, which was not permissible. The petitioner relied on previous judgments to support the argument that recalling the witness at that stage would amount to filling up the gaps in the case.2. Prosecution's Position and Court's Observations:The learned A.P.P. opposed the application, leading to a perusal of the case papers by the court. The petitioner was facing charges under the Prevention of Corruption Act and had undergone the trial process, including examination of witnesses, recording of petitioner's statement, and submission of written arguments by both sides. The court noted that the prosecution and defense had concluded their arguments by 8th January 2021, and the matter was adjourned for judgment. However, on 2nd February 2021, the judge issued summons to recall the complainant and other witnesses to prove the memory card, which was not verified during the trial.3. Legal Analysis and Decision:The court analyzed the provisions of Section 311 of Cr.P.C., which allows summoning or recalling witnesses if essential for a just decision. However, the court emphasized that this power cannot be used to fill in prosecution evidence gaps. Considering the stage of the case and the arguments already presented, the court found that recalling the witness to prove the memory card would amount to filling lacunae in the case, causing prejudice to the petitioner. Consequently, the court quashed and set aside the impugned order dated 2nd February 2021, ruling in favor of the petitioner.4. Final Disposition:In conclusion, the court made the rule absolute and disposed of the petition by setting aside the order recalling the witness. The judgment highlighted the importance of upholding procedural fairness and avoiding the filling of evidentiary gaps after the completion of evidence and arguments in a criminal case.This detailed analysis of the judgment provides a comprehensive understanding of the issues involved, the legal arguments presented, and the court's decision in quashing the impugned order.