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937Cri.WP1304-24.odt.Further examinationIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD937 CRIMINAL WRIT PETITION NO.1304 OF 20241.Parvin Begum W/o Abdul Rahim Khan,Age: 43 years, Occu: Household2.Johra Begum Abdul Rashid Khan,Age: 58 years, Occu: Household3.Abdul Rashid Khan S/o Pasha Khan,Age: 72 years, Occu: Business….PETITIONERS VERSUSThe State of Maharashtra,Through Police Station, Mudhkhed.Tq. Mudkhed, Dist. Nanded. ….RESPONDENT…Mr. S. S. Gangakhedkar, Advocate for the PetitionersMs. Ashlesha S. Deshmukh, APP for the Respondent - State...CORAM: Y. G. KHOBRAGADE, J.RESERVED ONPRONOUNCED ON:: 14.02.2025 03.03.2025 JUDGMENT :- 1.Rule. Rule made returnable forthwith and withconsent of both the sides, the matter is heard finally.2.By the present Petition, under Article 227 of theConstitution of India, the Petitioners take exception to the order 1 of 17 (( 2 ))937Cri.WP1304-24.odtdated 29.06.2024, passed below Exh.180 in R.C.C. No.370 of 2009 bythe learned Judicial Magistrate First Class, Mudkhed, therebypermitted the prosecution to re-examine the witness PW-3 to provethe documents i.e. Articles 1 to 101 enlisted in Exh.147.3.Mr. Gangakhedkar, the learned counsel for the Petitionerscanvassed that, on 26.10.2007, the informant Haibati RakhmajiMandave lodged a report alleging that, the Petitioner No.3, AbdulRashid Khan S/o. Pasha Khan was working as EDMC in Mudkhed PostOffice. The Petitioner No. 2, Zohra Begum Abdul Rashid Khan wasappointed as a Women Regional Savings Agent under the scheme of‘Mahila Pradhan Kshetriya Bachat Yojana’ as per licenceNo.NND1404, granted by the District Magistrate, Nanded on29.08.1994. As per said scheme, the petitioner No. 2, has to collectrecurring deposits from the account holders and she required todeposit the said collected amount with the Post Office in the accountsof the recurring depositors and to make entries. The post office hadissued passbooks to recurring depositors. It is further alleged that,during the period starting from 09.02.2004 to 28.08.2006, thePetitioner No. 2, Johra Begum Abdul Rashid Khan and the PetitionerNo. 3, Abdul Khan collected huge amount being Agents and signed 2 of 17 (( 3 ))937Cri.WP1304-24.odtthe cards in Urdu, but they did not deposit the said amount in thePost Office and thereby misappropriated huge amount of thedepositors and cheated them. It is further alleged that, the accusedNos. 2 & 3 are husband and wife. Both have retained the passbooksof the depositors with them. The Petitioner No. 3, Abdul Khanappointed himself as the Authorized person and forged documents forwithdrawing money and got sanctioned the amount with interestfrom Shri Ashok Narhar Doke, the then Sub Post Master. ThePetitioner No. 3 withdrawn the entire amount with interest andmisappropriated the same and closed R.D. accounts of the depositers.4.According to the informant as per Schedule “A” list, theaccused withdrawn an amount of Rs. 1,64,811/- from the account of15 Recurring Deposit Account holders (by forging the duplicatesignatures of the account holders) and closed the accounts withoutconsent of the account holders, so also continued the collectionsfrom the account holders, but failed to deposit the collected amounti.e. of Rs. 86,000/- with Post Office in R D accounts of respectiveaccount holders. The Accused No. 3 failed to return the Passbooks tothe account holders. As per Schedule “B”, the accused withdrawn anamount of Rs. 39,952/- from the account of 9 Recurring Deposit 3 of 17 (( 4 ))937Cri.WP1304-24.odtaccount holders (by forging the duplicate signatures of the accountholders) and closed the accounts without consent of the accountholders, and continued the collections from the account holders, butfailed to deposit the collected amount i.e. Rs.18,800/-with the postoffice. It is further alleged that, the Petitioner No. 2 collected anamount of Rs.77,100/- towards recurring deposits from 35 depositorsbut did not deposit the same with the Post Office in their accounts.The petitioner No. 2 used said amount for her personal benefit anddefrauded the Post Office as well as the depositors. 5. Similarly, as per Schedule “D” the Petitioner No.3,accused Abdul Rashid Khan S/o. Pasha Khan in connivance with theAccused No.1, Parvin Begum Khan committed fraud of Rs.79,800/- bywithdrawing the amount under the fake signature of 34 recurringdepositors. So also, the Petitioner No.1, Parvin Begum Khanwithdrawn the amount of Rs. 4,66,463/- from 93 R. D. accountsunder the fake and fabricated documents. Therefore, on the basis ofsaid report, Crime bearing No. I-59 of 2007 was registered against thepresent Petitioners for the offences punishable under Section 420,421, 403, 409, 464, 468, read with Section 34 of the Indian Penalcode, 1860. 4 of 17 (( 5 ))937Cri.WP1304-24.odt6.Thereafter, the Investigating Officer conducted aninvestigation and seized several documents under separate list:Schedule A, B, C and D. The I.O. recorded statements of witnessesand issued a warrant for seizure of the documents. The documentswere sent to the handwriting expert for examination. On completionof investigation, a charge-sheet came to be filed against the presentPetitioners. The learned trial Court framed charges against thepresent petitioners/accused for the offences punishable underSections 420, 421, 403, 409, 464, 468, read with Section 34 of IndianPenal code, 1860.7.In order to prove the charges, the prosecution examinedthree witnesses. On 03.01.2024, the PW-3, Haybati Rakhmaji Mandveentered into the witness box and deposed at Exh.146. PW-3 provedExh.147 i.e., the seizure panchanama of documents and Exh.149Appointment Order of the Petitioner No.3, Abdul Rashid Khan as anagent. The PW-3 also proved documents Exhs. 150 and 151 i.e.,Official licence/letter granted by the District Collector, Nandedregarding appointment of Petitioner No. 2, Johra Begum andPetitioner No. 1 Parvin Begum as R D Agent. The prosecution provedExh. 155 SB Form No. 7, Exh.156 five specimen signatures of 5 of 17 (( 6 ))937Cri.WP1304-24.odtMohammad Iliyas Exh.158, Application submitted by Ajij Beg IsmailBeg and his five specimen signatures Exh.159, Original copy ofsample signature register of Ajij Beg Exh.160 as well as other variousdocuments.8.On face of record, it appears that, prior to deposition ofPW-3, copies of Schedule A to D total 1 to 101 were sent for expert’sexamination and those were not available when the PW-3 deposedher examination-in-chief. However, only the list of documents 1 to101 is exhibited as Exh. 147 and the documents below the list werenot exhibited. Thereafter, PW-3 undergone cross-examinationconducted on behalf of the petitioners/accused. On 30.04.2024, thecross-examination of PW-3 was completed. 9.However, after cross-examination is over, the prosecutionfiled Exh.180 and prayed for permission to re-examine PW-3 to provedocuments 1 to 101 produced under Schedule A to D Exh.174because those documents were not referred to PW-3. Additionally,some documents under Schedules A to D were sent to the ChemicalExaminer, which were seized during the course of investigation andfiled along with the charge sheet, but due to oversight, thosedocuments were not referred to the witness. 6 of 17 (( 7 ))937Cri.WP1304-24.odt10.On 29.06.2024, the learned Judicial Magistrate, Mudkhedpassed the impugned order below Exh.180 and permitted theprosecution to re-examine PW-3 in respect of documents filed alongwith Report Exh.147 enlisted as Articles 1 to 101. Being aggrieved bythe said order, the Petitioners have filed the present Petition.11. The learned counsel for the petitioners canvassed that,the prosecution failed to raise issue of ambiguity/oversight at thetime of examination of PW-3 and no grounds are set out for re-examination of PW-3. Though said documents were available onrecord but the Public Prosecutor did not refer to the PW-3 and nosuch documents produced prior to entering the PW-3 in witness box.Therefore, the lacuna left in the evidence cannot be permitted to fillup by the prosecution and the prosecution has no right to recall andre-examine the witness. However, the learned trial court failed toconsider that, no ambiguity left in the evidence of PW-3 and thewitness cannot be recalled and re-examined. Therefore, the impugnedorder is illegal and bad in law, hence prayed to quash and set asidethe same. 12.It is further canvassed that, the learned trial court failed 7 of 17 (( 8 ))937Cri.WP1304-24.odtto appreciate scope of Section 311 of the Cr.P.C, which does notpermit re-examination of a witness, when documents, which are partof the record, are not referred to the witness. The purpose of re-examination of the witness is to clarify some ambiguities remained inevidence, but the documents which are not referred in theexamination-in-chief cannot be permitted to refer to the witness forre-examination. However, the learned trial court wrongly passed theimpugned order without considering the scope of Section 311 ofCr.P.C. and Section 138 of the Evidence Act, hence, prayed to quashand set aside the impugned order. 13.In support of these submissions, the learned counsel forthe Petitioners relied on the following cases as under:(i)Capitol Art House (P) Ltd. Vs. Neha Datta , 2022 SCC Online Del 1746, wherein it is held that, when there is no ambiguity in the answers given by the witness that requires explanation through re-examination, hence, the re-examination cannot be used to give chance to the witness to undo the statement of the witness made in cross-examination and fill in the lacunae in evidence. 8 of 17 (( 9 ))937Cri.WP1304-24.odt(ii)Rammi Alias Rameshwar V. State of Madhya Pradesh (1999) 8 SCC 649, wherein the Hon’ble Supreme Court considered the scope of Section 138 of the Evidence Act and held in paragraph Nos. 17 , 18 and 19 as under:“17.There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.18.Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary forproving any material fact, courts must be liberal in granting permission to put necessary questions. 9 of 17 (( 10 ))937Cri.WP1304-24.odt19.A Public Prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouthof a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.”14.Per contra, the learned APP submits that, the documentsfiled along-with the charge-sheet under Exh.147, Schedule A to Dtotal 1 to 101, however, during examination-in-chief, the learnedprosecutor only referred the list of annexures/Schedule A, B, C and Di.e. list of documents but due to oversight of the public prosecutor, thedocuments are not exhibited and some documents were sent forChemical Analysis. After receipt of said documents, the prosecutionproduced the documents on 04.03.2024 under List Exh.177 whichwas produced after the examination-in-chief recording of PW-3.Therefore, as per Section 311 of Cr.P.C. and Section 138 of theEvidence Act, the prosecution has every right to re-examine PW-3 andrefer those documents which were produced alongwith charge-sheetand were sent to the Chemical Analysis. Therefore, after re- 10 of 17 (( 11 ))937Cri.WP1304-24.odtexamination of PW-3, the accused persons have right to cross-examine the witness. 15.It is further canvassed that, the documents producedunder Exh.177 are already provided to the accused persons i.e.,Petitioners with the charge-sheet, so also, in cross-examination, thedefence counsel referred said documents to the PW-3. Therefore, theimpugned order is just and proper, hence prayed for dismissal of thePetition.16.Needless to say that, PW-3 entered into witness box on01.03.2024 and his Examination-in-chief recorded at Exh.146. Theevidence of PW-3 shows that exhibiting certain documents includingSchedule (list of documents A to D), however, documents producedunder list Exh. 147 were not referred to PW-3. On perusal ofSchedules A to D, the list of account holders, dates of accountopening, recurring deposit accounts and balances shown againstrecurring deposit holders were noted. Other documents pertaining toaccounts and withdrawal form etc., were not referred to PW-3because those documents along with charge-sheet were produced tothe Chemical Analyser. 11 of 17 (( 12 ))937Cri.WP1304-24.odt17.It is a matter of record that, the defence counselconducted cross-examination of PW-3 and concluded cross-examination on 30.04.2024 and soon after cross-examination is over,the prosecution filed Exh.180 application seeking permission to re-examine the PW-3 on ground that some documents under Exh.147were sent to the C.A., hence, said documents were not available at thetime of examination of PW-3, however, some documents were notreferred to PW-3 due to the oversight of the learned Public Prosecutor.After examination-in-chief of PW-3 documents were received from theChemical-analysis and thereafter the same were produced on recordunder Exh.147.18. It is not the case of the Petitioners accused thatdocuments under Exh. 147 were not supplied to them alongwithcharge-sheet. However after receiving documents under Exh.147 arefiled after recording examination-in-chief of the PW-3. Therefore, itcannot be said that the prosecution wanted to re-examine the PW-3 tofill up the lacuna.19.Needless to say that, the prosecution has no intention toget any explanation for the answers given by PW-3 in cross- 12 of 17 (( 13 ))937Cri.WP1304-24.odtexamination or to withdraw any admission given in cross-examination. However, the prosecution wanted to re-examine thePW-3 in order to refer documents which were seized during thecourse of investigation and produced with charge-sheet, but thosedocuments were sent to the Chemical analysis and received on04.03.2024 subsequent to recording of examination-in-chief of thePW-3.20.In the case of Raja Ram Prasad Yadav Vs. State of Biharand Another, A.I.R. 2013 (SC) 3081, it is held that invocation ofSection 311 of Cr.P.C. and its application in a particular case can beordered by the Court, only by bearing in mind the object and purportof the said provisions, namely, for achieving a just decision of thecase. The power vested under the said provisions is made available toany court at any stage in any inquiry or trial or other proceedingsinitiated under the Code for the purpose of summoning any person asa witness or for examining any persons in attendance, even thoughnot summoned as witnesses or to re-call or re-examine any person inattendance. In so far as recalling and re-examining of any personalready examined, the Court must necessarily consider and ensurethat such re-call and re-examination of any person, appears in the 13 of 17 (( 14 ))937Cri.WP1304-24.odtview of the court to be essential for the just decision of the case. 21.In case of Shailendra Kumar Vs. State of Bihar, A.I.R.2002 (Supreme Court) 270, it is held that, if there is any negligence,latches or mistake by not examining material witness, the Courtsfunction to render just decision by examining such witness at anystage is not, in any way impaired. 22. In case of Ramasami Vs. Sriniwasan 1987 (3) Crimes 89Madras, it is held that the criminal court is not just umpire to dealonly the material brought by the parties before it. The court has toplay an active role in the administration of criminal jurisprudence.Though, it is not normal duty of the court to collect evidence, in caseswhere justice requires, the Court has power to further inquire into thematter in order to ascertain the truth.23.In case of Rama Paswan Vs. State of Jhharkhand, 2007Crl. L.J. 2750, it is held that it would not be improper, the exercise ofthe power of the Court to summon a witness under the Sectionmerely because the evidence supports the case of the prosecution andnot that of the accused. The Section is a general Section, whichapplies to all proceedings, Inquiries and trials under the Court and 14 of 17 (( 15 ))937Cri.WP1304-24.odtempowers the Magistrate to issue summons to any witness at anystage of such proceedings, trial or inquiry.24.In case of UT of Dadra and Nagar Haveli Vs.FatehSinhMohansinh Chauhan, (2006) 7 SCC 529, wherein theHon’ble Supreme Court considered the powers under Section 311 ofCr.P.C and held that the lacunae in prosecution case is not to beequated with the fallout of an oversight committed by a PublicProsecutor during trial, either in producing relevant materials oreliciting relevant answers from witnesses. The adage “to err ishuman” is the recognition of the possibility of making mistakes towhich humans are prone. A corollary of any such laches or mistakesduring the conducting of a case cannot be understood as a lacunawhich a Court cannot fill up. 25.In case of Mina Lalita Vs. State of Orissa, (2013) 16 SCC173, the Hon’ble Supreme Court observed that it is the duty of theCriminal court to allow the prosecution to correct an error in theinterest of justice. Re-examining a witness already examined for thepurpose of finding out the truth in order to enable the Court to arriveat a just decision of the case cannot be construed as filling up thelacuna in prosecution case. 15 of 17 (( 16 ))937Cri.WP1304-24.odt26.Coming back to the case in hand, the learned trial courtpassed the impugned order on 29.06.2024 and permitted theprosecution to re-examine PW-3. On perusal of the impugned order itappears that, after completion of examination-in-chief of the PW-3,the police deposited certain documents along with report Exh.147and during the course of examination-in-chief of PW-3 somedocuments were not available with the prosecution though saiddocuments are included in charge-sheet and some enlisted in Exh.147were not referred to PW-3 during examination-in-chief because thesame were referred to the Chemical Analysis. The documents alongwith Schedule A to D seized under panchanama Exh.148 during thecourse of investigation and supplied to the Petitioners / accused.Therefore, those documents are not foreign and unknown to thepetitioners/accused. Therefore, considering the scope of Section 311of Cr.P.C. coupled with Section 138 of the Evidence Act, the learnedtrial court granted permission to re-examine the PW-3 as per law laiddown in Rama Pawsan cited (supra), which does not appear to beperverse, illegal and bad in law, hence, no interference is called at thehands of this Court. 16 of 17 (( 17 ))937Cri.WP1304-24.odt27.In view of above discussion, the Criminal Writ Petition isdismissed. Accordingly, Rule is discharged. No order as to costs. Theinterim order granted on 30.07.2024 is hereby vacated. [ Y. G. KHOBRAGADE, J. ] 28.After the judgment is pronounced, the learned counsel forthe Petitioner seeks for extension of interim order granted by thisCourt on 30.07.2024. However, I have not find substantial ground forextension of interim order. Hence, prayer is turned down. [ Y. G. KHOBRAGADE, J. ]HRJadhav 17 of 17