By relying on ratio in Rajenra Prasad v. The Narcoticcell Through its officer in

Legal Reasoning

{1} 48-WP-34-2024IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 34 OF 2024Sudhir Jagannath Pawar...Petitioner VERSUSThe State Of Maharashtra...Respondent ...Mr. Umesh Mitkari, Advocate for petitioner.Mr. S.B. Jadhav, APP for respondent. ....... [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 8 th JANUARY, 2024 ORDER :1.Petitioner is aggrieved by order passed by SpecialCourt, Jalna, below Exhibit-85 in Special Case ACB No. 5/2015,thereby allowing the application filed by prosecution undersection 311 Cr.P.C., for re-examination of investigating officer orcalling investigating officer for re-examination which is restrictedonly on the point of hearing recorded conversation betweenaccused and complainant and recorded voice of accused in openCourt.2.During the course of trial, witnesses were examined,so also, investigating officer and on 02.05.2023 investigatingofficer was cross examined. At this stage, prosecution filedBhagyawant Punde {2} 48-WP-34-2024application Exhibit-85 stating that, during the cross examinationwitness was asked about recording of conversation in CD form.Accused has denied that voice in the CD is that of accused.Application given by prosecution for providing copies of voicerecording and conversation recording to accused was allowed byCourt, copies were made by technician called from Cyber labJalna. He had copied the same in presence of Court and report ofit is submitted by prosecution. From record it appears thatcopies of CD are not accepted by defence. Application, therefore,is filed with a prayer to recall investigation officer for re-examination which would be restricted only on the point ofhearing recorded conversation between accused and complainantand recorded voice of accused in open Court. The same isnecessary in the interest of justice as written script ofconversation is on record. 3.Petitioner/accused opposed the application on theground that prosecution is trying to fill up the lacuna. Trial Courthas allowed the application observing that “police papers showthat conversation of accused has been recorded during the trap.Said fact has been stated by Sitaram Mehetre (PW4) and otherwitnesses. Prosecution wants to play the CD. By no stretch ofBhagyawant Punde {3} 48-WP-34-2024imagination it can be said that prosecution is trying to fill up thelacuna.” By relying on ratio in Rajenra Prasad vs. The Narcoticcell Through its officer in-charge, Delhi, MANU/SC/0397/1999,Trial Court held that, “lacuna in the persecution case cannot beequated to the oversight committed by public prosecutor duringtrial. The CD is not prepared after the evidence. It is already inexistence. However, prosecution failed to play it duringexamination in chief. Hence, playing CD in re-examination doesnot amount to fill up lacuna and it is not the case of afterthoughtevidence or forge evidence. The CD is already prepared duringinvestigation.” Trial Court was of the view that “power underSection 311 Cr.P.C. needs to be exercised for just decision of thecase and for the ends of justice. CD is crucial evidence ofconversation of accused and it needs to be tendered in evidencefor just decision of case.” 4.Learned advocate for petitioner has assailed theimpugned order contending that Trial Court has erred in allowingthe application which amounts to filling up the lacuna andserious prejudice will be caused to petitioner/accused, becauseof the impugned order. He therefore submits that impugnedorder is unsustainable in law and facts of the case and same mayBhagyawant Punde {4} 48-WP-34-2024be quashed and set aside. 5.Heard learned advocate for petitioner and learnedAPP for respondent. Perused the memo of writ petition,annexures thereto and the impugned order.6.It is settled legal position that examination or re-examination under Section 311 Cr.P.C. can be permitted so as toenable the Court to arrive at just decision of the case. InRatanlal v. Prahlad Jat, MANU/SC/1202/2017 it is held:“17. In order to enable the court to find out the truthand render a just decision, the salutary provisions ofSection 311 are enacted whereunder any court byexercising its discretionary authority at any stage ofinquiry, trial or other proceeding can summon anyperson as witness or examine any person inattendance though not summoned as a witness orrecall or re-examine any person already examined whoare expected to be able to throw light upon the matterin dispute. The object of the provision as a whole is todo justice not only from the point of view of theAccused and the prosecution but also from the point ofview of an orderly society. This power is to beexercised only for strong and valid reasons and itshould be exercised with caution and circumspection.Recall is not a matter of course and the discretiongiven to the court has to be exercised judicially toprevent failure of justice. Therefore, the reasons forexercising this power should be spelt out in the order.”Bhagyawant Punde {5} 48-WP-34-20247.In Zahira Habibullah Sheikh v. State of Gujarat,MANU/SC/1344/2006, it is held:“27. The object underlying Section 311 of the Code isthat there may not be failure of justice on account ofmistake of either party in bringing the valuableevidence on record or leaving ambiguity in thestatements of the witnesses examined from eitherside. The determinative factor is whether it is essentialto the just decision of the case. The Section is notlimited only for the benefit of the Accused, and it willnot be an improper exercise of the powers of the courtto summon a witness under the Section merelybecause the evidence supports the case of theprosecution and not that of the Accused. The Section isa general Section which applies to all proceedings,enquiries and trials under the Code and empowers theMagistrate to issue summons to any witness at anystage of such proceedings, trial or enquiry. In Section311 the significant expression that occurs is "at anystage of any inquiry or trial or other proceeding underthis Code". It is, however, to be borne in mind thatwhereas the Section confers a very wide power on thecourt on summoning wit- nesses, the discretionconferred is to be exercised judiciously, as the widerthe power the greater is the necessity for applicationof judicial mind.”8.In U.T. Of Dadra & Nagar Haveli & Another v.Fatehsingh Mohansingh Chauhan, (2006) 7 SCC 529, it is held:“The principle is well-settled that the exercise of powerunder Section 311, Cr.P.C. should be resorted to onlywith the object of finding out the truth or obtainingproper proof of such facts which lead to a just andcorrect decision of the case, this being the primaryBhagyawant Punde {6} 48-WP-34-2024duty of a criminal court. Calling a witness or re-examining a witness already examined for the purposeof finding out the truth in order to enable the Court toarrive at a just decision of the case cannot be dubbedas "filling in a lacuna in prosecution case" unless thefacts and circumstances of the case make it apparentthat the exercise of power by the Court would result incausing serious prejudice to the accused resulting inmiscarriage of justice.”9.In the light of aforesaid legal position, there is nomerit in the submission of petitioner that prosecution is trying tofill up the lacuna. The approach of the Trial Court is inconsonance with the settled legal position. No case is made outby petitioner to warrant interference in extra ordinary writjurisdiction. Writ petition being devoid of merit is dismissed. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde