Shonika @ Sonika Ramesh Salunkhe vs The State Of Maharashtra
2021 Latest Caselaw 9248 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL WRIT PETITION NO.1558 OF 2021


            Shonika @ Sonika Ramesh Salunkhe                           ...Petitioner
                Versus
            The State of Maharashtra                                   ...Respondent


            Mr. Ritesh Thobde for the Petitioner

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


                                               CORAM : REVATI MOHITE DERE, J.

(THROUGH VIDEO-CONFERENCING) THURSDAY, 15th JULY 2021

ORAL 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.

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

18th January 2020 passed below Exhibit 70 by the leaned Additional

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Sessions Judge, Solapur in Sessions Case No. 103/2018, by which, the

learned Judge permitted the prosecution to examine four witnesses, after the

arguments were defence had advanced their arguments.

4 Learned counsel for the petitioner submits that after the

petitioner's advocate i.e. the defence advanced their arguments, the

prosecutor realized that certain witnesses were not examined, pursuant to

which, the prosecutor filed an application dated 15 th July 2019 and sought

examination of four witnesses. Learned counsel for the petitioner submits

that the power under Section 311 of the Code of Criminal Procedure

(`Cr.P.C') cannot be used to fill up the lacunae. He submits that the

impugned order passed by the trial Court would seriously prejudice the

accused, who had put forth his defence at the time of argument. Learned

counsel for the petitioner relied on the Roznama of the said case from page

No. 10 onwards, in support of his submission to show that the said

application under Section 311 of Cr.P.C was filed by the prosecutor at a

very belated stage, with the sole intent of filling in the lacunae.

5 Learned counsel relied on the judgments of the Apex Court in

the cases of State of Haryana v. Ram Mehar & Ors.1 and Kalpesh

1 (2016) 8 SCC 762

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Ramnath Saroj & Anr. v. State of Maharashtra2, in support of his

submission.

6 Learned A.P.P does not dispute the fact that the said application

was filed by the prosecutor at a belated stage i.e. after the advocate for the

petitioner had advanced his arguments. He, however, submits that no

interference is warranted in the impugned order.

7 Perused the papers. The petitioner is facing trial for the alleged

offences punishable under Sections 302 and 201 of the Indian Penal Code.

The said case is pending before the learned Sessions Judge, Solapur being

Sessions Case No. 103/2018. After charge was framed as against the

petitioner for the alleged offences punishable under Sections 302 and 201

on 22nd June 2018, the prosecution examined 6 witnesses to bring home its

case. On 17th April 2016, the prosecution filed a closure purshis after

which, the petitioner's statement was recorded by the Court under Section

313 Cr.P.C, on 22nd April 2019. The trial Court fixed the matter for final

arguments on 3rd May 2019. On the said date, the trial Court proceeded to

hear the arguments of the defence, while the prosecution sought time for

advancing their submissions. It is not in dispute that after the arguments for

2 2019 SCC OnLine Bom 1103

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the defence were over, the prosecution through the learned A.P.P, on 6th

May 2019 preferred an application under Section 311 Cr.P.C, seeking

examination of two additional witnesses i.e. Surekha Anil Salunkhe and

Pooja Narendra Alkunte. The said application (Exhibit 67) was rejected by

the trial Court vide order dated 6th May 2019. A perusal of the said order

dated 6th May 2019 shows that the reason for rejecting the said application

was that the said application was preferred after hearing the submission of

the defence counsel and there were no reasons set out why the said two

witnesses could not be examined earlier. It appears that thereafter, the

prosecutor sought time to advance final submissions. According to the

learned counsel for the petitioner, the prosecution portrayed to the trial

Court that the order passed below Exhibit 67 was being challenged in

revision before the High Court, when infact, no such revision was filed by

the prosecution in the High Court. On 6th May 2019, the prosecution

preferred an application and sought an adjournment to advance final

arguments, which adjournment was granted by the trial Court. It is a matter

of record that on 15th July 2019, the prosecution once again filed another

application (Exhibit 70) under Section 311 Cr.P.C, seeking recall of 4

witnesses i.e. Dayanand Jagannath Chavan (Photographer), Bharat Vikas

Vidyalay (Head Master), Bebi Maruti Gogale (Arrest Panchnama), Jayshri

Arun Dindole (Arrest Panchnama). The said application was allowed by the

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trial Court vide order dated 18th January 2020 which order is impugned in

this present petition.

8 No doubt, the power under Section 311 Cr.P.C can be invoked

at any stage of any inquiry, trial or other proceeding under this Code,

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; and the Court shall summon and examine or recall and

re-examine any such person if his evidence appears to it to be essential to

the just decision of the case. However, the said power cannot be exercised

to fill up the lacunae in the case. It is not in dispute that the said application

was filed by the prosecution after the defence arguments had concluded and

the defence had disclosed and argued on certain aspects. It is also not in

dispute that vide order dated 6th May 2019, the Court had rejected the

application preferred by the prosecution under Section 311 for examination

of two witnesses i.e. Surekha Anil Salunkhe and Pooja Narendra Alkunte

on the premise that the said application was filed after the advocate for the

petitioner had disclosed his defence and that there were no reasons set out

for non-examination of the said witnesses earlier. Admittedly, the

application (Exhibit 70) was filed after the defence had concluded the

arguments. The said application does not disclose why the said witnesses

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were not examined earlier nor does the application set out any cogent

reason for the same. The said application (Exhibit 70) is bereft of details.

It does not even spell out, how the examination/evidence of these witnesses

is essential to the just decision of the case. It is well settled that the power

under Section 311 Cr.P.C cannot be used to fill in the lacunae. The said

action of the prosecution would seriously prejudice the petitioner. Needless

to state, that the power of Section 311 Cr.P.C must be invoked by the Court

only to meet the ends of justice for strong and valid reasons and the said

power must be exercised with care, caution and circumspection.

9 Considering the aforesaid, the impugned order dated 18th

January 2020 passed below Exhibit 70 by the leaned Additional Sessions

Judge, Solapur in Sessions Case No. 103/2018, cannot be sustained.

Accordingly, the same is quashed and set-aside.

10 Rule is made absolute in the aforesaid terms. Petition is

disposed of accordingly.

11 All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

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