Case Note & Summary
The petitioner, Mahesh Ahirrao, along with respondents 2 and 3, faced trial for offences under Sections 420, 465, 468, 471 read with 34 of the Indian Penal Code in Regular Criminal Case 3/2007. The Judicial Magistrate First Class (Court 3) acquitted the petitioner and convicted respondents 2 and 3 vide judgment dated 15.3.2014. The State did not challenge the petitioner's acquittal. Respondents 2 and 3 appealed their conviction in Criminal Appeal 40/2014 before the Sessions Court. During the appeal, respondents 2 and 3 filed an application (Exh. 27) under Section 311 of the Criminal Procedure Code, 1973 seeking recall of the complainant (PW 1) for further cross-examination and summoning of the Investigating Officer, who was not examined at trial. The State opposed the application, arguing that Section 311 power is available only until the conclusion of trial. The Sessions Court rejected the application, holding that the power under Section 311 cannot be exercised after the trial has concluded. The petitioner, who had been acquitted, filed the present criminal writ petition under Article 227 of the Constitution challenging the Sessions Court's order. The High Court held that Section 311 CrPC is a trial provision and cannot be invoked after the trial has ended, even in a pending appeal. The court noted that the appellate court's powers are limited to examining the legality and correctness of the trial court's decision, and cannot be used to fill gaps in the prosecution case. The court also held that inherent powers under Section 482 CrPC cannot be used to circumvent this limitation. The petition was dismissed, and the Sessions Court's order was upheld.
Headnote
A) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Power under Section 311 of the Criminal Procedure Code, 1973 is available only during the trial and cannot be invoked after the conclusion of trial, even in a pending appeal - The Sessions Court rightly rejected the application as the trial had concluded and the appeal was only against conviction - Held that the appellate court cannot exercise Section 311 powers to fill gaps in prosecution evidence (Paras 6-10). B) Criminal Procedure - Inherent Powers - Section 482 CrPC - The High Court cannot exercise inherent powers under Section 482 of the Criminal Procedure Code, 1973 to circumvent the express bar under Section 311 CrPC - The petitioner's remedy, if any, lies in challenging the conviction on merits in appeal, not by seeking recall of witnesses after trial - Held that Section 482 cannot be used to achieve what is otherwise impermissible (Paras 11-12).
Issue of Consideration
Whether the Sessions Court could exercise power under Section 311 of the Criminal Procedure Code, 1973 to recall and examine witnesses after the conclusion of trial, during the pendency of a criminal appeal against conviction.
Final Decision
The High Court dismissed the criminal writ petition, upholding the Sessions Court's order rejecting the application under Section 311 CrPC. The court held that the power under Section 311 CrPC is not available after the conclusion of trial and cannot be exercised by the appellate court.
Law Points
- Section 311 CrPC power is available only during trial
- not in appeal
- Section 482 CrPC cannot be used to circumvent limitation
- Criminal appeal is continuation of trial only for limited purposes
