Case Note & Summary
The applicant, Yamunabai Namdeo Dhumal, the original complainant, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) challenging the order dated 21.9.2011 passed by the learned Judicial Magistrate, First Class, Parner in R.T.C. No. 159 of 2001. The applicant had lodged a first information report on 2.9.2001 against the respondents for offences under Sections 143, 147, 148, 149, 324, 504 and 506 of the Indian Penal Code, 1860 and Section 37(1)(3) of the Bombay Police Act, alleging that the accused persons brutally assaulted her causing serious injuries. On the basis of the FIR, R.T.C. No. 159 of 2001 was registered. The prosecution examined the applicant as P.W.1 on 4.10.2010 and she was cross-examined on 14.10.2010. Thereafter, the prosecution examined about five witnesses. On 18.4.2011, the Assistant Public Prosecutor (APP) preferred an application (Exh.91) under Section 311 CrPC to recall the applicant for re-examination for identification of the weapons. The respondents opposed the application, contending that the prosecution was trying to fill up the lacuna in evidence and create new evidence. The learned Magistrate rejected the application by the impugned order. The High Court, after hearing the parties, observed that the trial court had not properly exercised its discretion under Section 311 CrPC. The court noted that the identification of weapons was essential for the just decision of the case and that the recall of the complainant for that purpose would not amount to filling a lacuna. The High Court quashed the impugned order and allowed the application Exh.91, directing the trial court to recall the applicant for re-examination for identification of the weapons.
Headnote
A) Criminal Procedure - Recall of Witness - Section 311 CrPC - Identification of Weapons - The court considered whether the trial court's rejection of the prosecution's application to recall the complainant for identification of weapons was justified. The High Court held that the trial court had not properly exercised its discretion under Section 311 CrPC, as the identification of weapons was essential for just decision of the case and did not amount to filling a lacuna. The impugned order was quashed and the application was allowed. (Paras 1-8)
Issue of Consideration
Whether the trial court erred in rejecting the application under Section 311 CrPC for recalling the complainant for re-examination for identification of weapons, and whether such recall would amount to filling up a lacuna in the prosecution evidence.
Final Decision
The High Court allowed the application, quashed the impugned order dated 21.9.2011, and directed the trial court to allow the application Exh.91 and recall the applicant for re-examination for identification of the weapons.
Law Points
- Section 311 CrPC
- recall of witness
- re-examination
- identification of weapons
- filling lacuna
- power of court to summon material witness
Case Details
2012 LawText (BOM) (09) 3
Criminal Application No. 153 of 2012
Shri S.N. Patil h/f Shri N.V. Gaware for applicant, Shri N.C. Garud for respondent nos. 1 and 8, Shri N.B. Patil, A.P.P. for respondent no.9
Ratnakar Vithoba Paymode, Adinath Natha Paymode, Natha Gangaram Zaware, Sunderbai Ratnakar Paymode, Yamunabai Natha Zaware, Dattatraya Ratnakar Paymode, Pandurang Ratnakar Paymode, Subhadra Molke, The State of Maharashtra
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Nature of Litigation
Criminal application under Section 482 CrPC challenging the rejection of an application under Section 311 CrPC for recall of complainant for re-examination.
Remedy Sought
The applicant (original complainant) sought quashing of the order dated 21.9.2011 rejecting the application Exh.91 and prayed that the application be allowed.
Filing Reason
The trial court rejected the prosecution's application to recall the complainant for identification of weapons, which the applicant considered erroneous.
Previous Decisions
The learned Judicial Magistrate, First Class, Parner rejected the application Exh.91 on 21.9.2011.
Issues
Whether the trial court erred in rejecting the application under Section 311 CrPC for recalling the complainant for re-examination for identification of weapons.
Whether such recall would amount to filling up a lacuna in the prosecution evidence.
Submissions/Arguments
The applicant argued that the identification of weapons was essential for the just decision of the case and the trial court had not properly exercised its discretion under Section 311 CrPC.
The respondents contended that the prosecution was trying to fill up the lacuna in evidence and create new evidence.
Ratio Decidendi
The power under Section 311 CrPC is wide and can be exercised at any stage to summon or recall any person as a witness if his evidence appears essential for the just decision of the case. The identification of weapons in an assault case is essential for just decision, and recalling the complainant for that purpose does not amount to filling a lacuna.
Judgment Excerpts
By the present application, preferred by the applicant (original complainant) under Section 482 of the Code of Criminal Procedure, he prayed that the impugned order, dated 21.9.2011, passed by the learned Judicial Magistrate, First Class, Parner in R.T.C.No. 159 of 2001 below Exh.91 be quashed and set aside and also prayed that the said application Exh.91 be allowed.
The learned Magistrate has not properly exercised the discretion vested in him under Section 311 of the Code of Criminal Procedure and the impugned order is not sustainable in law.
Procedural History
The applicant lodged FIR on 2.9.2001, leading to R.T.C. No. 159 of 2001. The applicant was examined as P.W.1 on 4.10.2010 and cross-examined on 14.10.2010. The prosecution examined about five witnesses. On 18.4.2011, the APP filed application Exh.91 under Section 311 CrPC to recall the applicant for identification of weapons. The respondents opposed it. The trial court rejected the application on 21.9.2011. The applicant then filed the present criminal application under Section 482 CrPC before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 311, 482
- Indian Penal Code, 1860: 143, 147, 148, 149, 324, 504, 506
- Bombay Police Act: 37(1)(3)
