Case Note & Summary
The petitioner, Nayna Rajan Guhagarkar, was facing prosecution for offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, arising out of C.R. 3021/2015 registered at Yerwada Police Station, Pune. After investigation, a charge-sheet was filed. The prosecution examined its witnesses and closed its evidence. Thereafter, the petitioner's statement under Section 313 CrPC was recorded, and she filed her written say. Arguments were advanced by both sides on 6th January 2021, and on 7th January 2021, the petitioner's advocate filed written notes of arguments under Section 314 CrPC along with a list of citations. Subsequently, the trial court passed an order dated 2nd February 2021 below Exhibit 1 in Special Case (ACB) No. 70 of 2015, recalling the complainant Sujata Sutar to prove the memory card seized in the case, invoking Section 311 CrPC. The petitioner challenged this order before the High Court. The High Court held that the trial court's order was impermissible because the power under Section 311 CrPC cannot be used to fill lacunae in the prosecution evidence after the accused has disclosed her defence. The court noted that the order was passed after the evidence was closed, the 313 statement recorded, and arguments heard, and after the petitioner had placed her written arguments on record. The High Court allowed the petition, quashed the impugned order, and directed the trial court to proceed with the case from the stage prior to the impugned order.
Headnote
A) Criminal Procedure - Section 311 CrPC - Recalling Witness - Power under Section 311 CrPC cannot be exercised to fill lacunae in prosecution evidence after the accused has disclosed her defence in written notes of arguments under Section 314 CrPC - The trial court's order recalling the complainant to prove the memory card was set aside as it was passed after closure of evidence, recording of 313 statement, and hearing of arguments - Held that such exercise of power is impermissible (Paras 3-6).
Issue of Consideration
Whether the trial court could recall the complainant under Section 311 CrPC after the petitioner had disclosed her defence in written notes of arguments under Section 314 CrPC, and after the evidence of all witnesses had been recorded, the 313 statement recorded, and arguments heard.
Final Decision
The High Court allowed the petition, quashed the impugned order dated 2nd February 2021 passed by the Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, and directed the trial court to proceed with the case from the stage prior to the impugned order.
Law Points
- Section 311 CrPC cannot be used to fill lacunae in prosecution evidence after defence is disclosed
- Recalling witness after closure of evidence and arguments is impermissible
- Power under Section 311 CrPC must be exercised before defence is disclosed
Case Details
2021 LawText (BOM) (07) 21
Criminal Writ Petition No. 1658 of 2021
Mr. Aashish Satpute for the Petitioner, Mr. S. S. Hulke, A.P.P for the Respondent–State
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Nature of Litigation
Criminal writ petition challenging the trial court's order recalling the complainant to prove a memory card under Section 311 CrPC.
Remedy Sought
The petitioner sought quashing of the order dated 2nd February 2021 passed by the Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, which recalled the complainant Sujata Sutar to prove the memory card.
Filing Reason
The petitioner contended that the trial court's order was impermissible as it was passed after the petitioner had disclosed her defence in written notes of arguments under Section 314 CrPC, and after the evidence was closed, 313 statement recorded, and arguments heard.
Previous Decisions
The trial court had passed the impugned order on 2nd February 2021 recalling the complainant. The High Court had not previously decided this matter.
Issues
Whether the trial court could recall the complainant under Section 311 CrPC after the petitioner had disclosed her defence in written notes of arguments under Section 314 CrPC.
Whether the power under Section 311 CrPC can be exercised to fill lacunae in prosecution evidence after closure of evidence, recording of 313 statement, and hearing of arguments.
Submissions/Arguments
Petitioner's counsel argued that it was impermissible for the learned Judge to recall the complainant to prove the memory card after the petitioner had disclosed her defence in written notes of arguments under Section 314 CrPC, and after the evidence was closed, 313 statement recorded, and arguments heard. He submitted that the order was passed to fill lacunae in the prosecution evidence.
Learned APP opposed the application.
Ratio Decidendi
The power under Section 311 CrPC cannot be exercised to fill lacunae in the prosecution evidence after the accused has disclosed her defence in written notes of arguments under Section 314 CrPC. The trial court's order recalling the complainant after closure of evidence, recording of 313 statement, and hearing of arguments was impermissible.
Judgment Excerpts
He submits that it was impermissible for the learned Judge to recall the complainant Sujata Sutar, to prove the memory card seized in the present case, in the peculiar facts of this case.
He submits that the impugned order dated 2nd February 2021 was passed taking recourse to Section 311 of the Code of Criminal Procedure (`Cr.P.C'), after the petitioner had disclosed his defence in the written notes of arguments submitted on his behalf under Section 314 of Cr.P.C.
He submits that it was not permissible for the learned Judge to summon the complainant-Sujata Sutar to fill in the lacunae in the prosecution evidence, more particularly, after the petitioner had placed on record her written arguments.
Procedural History
The petitioner is facing prosecution under the Prevention of Corruption Act. After investigation, charge-sheet was filed. The prosecution examined its witnesses and closed evidence. The petitioner's statement under Section 313 CrPC was recorded, and written say was filed. Arguments were advanced on 6th January 2021, and written notes of arguments were filed on 7th January 2021. On 2nd February 2021, the trial court passed the impugned order recalling the complainant under Section 311 CrPC. The petitioner challenged this order by way of Criminal Writ Petition No. 1658 of 2021 before the Bombay High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 311, 313, 314
- Prevention of Corruption Act, 1988: 7, 13(1)(d), 13(2)
