Nayna Rajan Guhagarkar vs The State Of Maharashtra
2021 Latest Caselaw 9108 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL WRIT PETITION NO.1658 OF 2021


            Nayna Rajan Guhagarkar,
            Age: 48 , Address : Chawl No. 479/2707,
            Mahesh Nagar Chowk,
            Near Maruti Mandir,
            Sant Tukaram Nagar,
            Pimpri, Pune                                               ...Petitioner
                    Versus
            The State of Maharashtra,
            Through Yerwada Police Station,
            Vide C.R. 3021/2015                                        ...Respondent


            Mr. Aashish Satpute for the Petitioner

            Mr. S. S. Hulke, A.P.P for the Respondent-State

                                               CORAM : REVATI MOHITE DERE, J.
                                               TUESDAY, 13th JULY 2021
            JUDGMENT :

            1                 Heard learned counsel for the parties.



            2                 Rule. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal. Learned APP waives service

on behalf of respondent-State.

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                  3                 By this petition, the petitioner has impugned the order dated 2 nd

February 2021 passed by the Additional Sessions Judge, Pune, below

Exhibit 1 in Special Case (ACB) No. 70 of 2015. Learned counsel for the

petitioner 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 the

impugned order was passed after the learned Judge had completed

recording of evidence of witnesses; after recording 313 statement of the

petitioner and after hearing the arguments in the said case. 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.

Learned counsel relied on the judgments in the cases of B. D. Goel

v. Ebrahim Haji Husen Sanghani & Ors.1; Shankar Lotlikar v. Pundalik

1 2001 Cri.L.J. 450

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Venktesh Verlekar2 and Nayana Rajan Guhagarkar v. The State of

Maharashtra3.

                 4                 Learned A.P.P opposes the application.



                 5                 Perused the papers.   The petitioner is facing prosecution for

the offence punishable under Sections 7, 13(1)(d) and 13(2) of the

Prevention of Corruption Act. After investigation, charge-sheet was filed as

against the petitioner. The prosecution in support of its case, examined its

witnesses. After prosecution closed its evidence, the statement of the

petitioner was recorded under Section 313 Cr.P.C. and her written say was

filed. Thereafter, the prosecution advanced arguments on behalf of the

State and the advocate for the petitioner also advanced his submissions on

6th January 2021. On 7th January 2021, written notes of arguments were

filed by the petitioner's advocate alongwith a list of citations. On 8 th

January 2021, learned A.P.P replied to the arguments and as such the

arguments of both the parties had concluded by 8 th January 2021. The

noting of 8th January 2021 as reflected in the Roznama annexed to the

petition shows that the matter was adjourned for judgment on 11 th January

2021. On 11th January 2021, the matter was again adjourned for judgment 2 AIR Online 2020 Bom 1359 3 Cri. APL/1496/2016 dated 24/01/2018

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on 21st January 2021. On 2nd February 2021, the impugned order was

passed, by which, the learned Additional Sessions Judge issued summons to

Sujata Sutar and panch Nayna Rishikesh Patil and the Investigating Officer/

D.C.P, ACB, Pune was directed to provide appropriate instruments for

playing of memory card in the Court, with speakers. A perusal of the

impugned order shows that the learned Judge whilst perusing the evidence,

noticed that the memory card which allegedly contained the conversation

between the complainant and the accused before and at the time of the trap,

was not placed on record/verified during trial. The Court, on its own, took

recourse to Section 311 Cr.P.C and passed the impugned order stating

therein that since the memory card seized in the case was essential

evidence, it was necessary to recall the witnesses for proving the said

memory card. It is not in dispute that recording of evidence was over and

so were the arguments advanced by the prosecution as well as the

petitioner's advocate. As noted earlier, even written arguments were placed

on record by the petitioner's advocate which document is also annexed as

Exhibit `C' to the petition. In point No. 6 at page 66 (written notes of

arguments), specific defence has been taken. The relevant portion of point

No. 6 reads as under :

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                      "POINT NO. 6 : TAPE RECORDER EVIDENCE

That, in the present case the tape recorded conversation has not been played in the open court and the same was not heard by any witness and the voice has not been identified by any witness.

The report of voice expert which is directly Exhibited as Exh. 58 cannot be read in evidence. The report is not covered u/s. 293 of Cr.P.C. and therefore without examining such expert the report cannot be read in evidence.

........................."

6 No doubt, under Section 311 Cr.P.C, any Court may, at any

stage of any inquiry, trial or other proceeding summon any person as a

witness or examine any person in attendance, though not summoned as a

witness or recall and re-examine any person already examined, if it is

essential to the just decision of the case, however, at the same time, the said

power under Section 311 cannot be used to fill in the lacunae in the

prosecution evidence. Having regard to the peculiar facts of this case that

the impugned order issuing witness summons for recalling the complainant

and panch was passed after arguments were advanced and written

submissions were filed, on the aspect of memory card not being proved, it

was not permissible for the learned Judge to pass the impugned order. The

same, in the facts, would clearly tantamount to filling up the lacunae in the

case. It would also result in causing serious prejudice to the petitioner.

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            7                 Having regard to the aforesaid, the impugned order dated 2 nd

February 2021 passed by the learned Additional Sessions Judge, Pune,

below Exhibit 1 in Special Case (ACB) No. 70 of 2015, is quashed and set-

aside.

8 Rule is made absolute and petition is disposed of in the

aforesaid terms.

REVATI MOHITE DERE, J.

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