Tuesday, 26 January 2016

Whether Magistrate can allow prosecution to introduce new witness so as to fill up lacuna in its case as per S 311 of CRPC?

It has to be borne in mind that Section 311 of the Cr.P.C. confers vast
discretionary powers on the Court to receive additional evidence which is
germane to the issue involved in the case. The Apex Court in Natasha and
Vijay Kumar (Supra) while considering the scope and object of Section
311 of the Cr.P.C., has emphasized that the power under this section must
be exercised judiciously with great care and circumspection. These wide
discretionary powers must be invoked to receive the evidence i.e. .essential
for the just decision of the case. It, therefore, follows that the power under

Section 311 of the Cr.P.C. cannot be exercised arbitrarily or capriciously.
The application under Section 311 of the Cr.P.C. cannot be allowed to fill
up lacuna in the case of the prosecution or of the defence. Such additional
evidence must not be received to the disadvantage of the defence of the
accused or to cause serious prejudice to the defence of the accused or to
give an unfair advantage to the other party. The only determinative factor in
exercising the discretionary power under this section is that summoning /
recalling of the witness is essential for the just decision of the case.
 In the instant case, the learned Magistrate has not considered whether
the evidence of Dnyaneshwar Khutwad was germane to the issue or
whether it was essential for the just decision of the case. On the contrary,
under the garb of exercising the powers under Section 311 of the Cr.P.C.,
the learned Magistrate has allowed the prosecution to introduce the new
witness as to fill up the lacuna in the case of the prosecution. Such
exercise of power gives unfair advantage to the prosecution and further
causes prejudice to the defence of the accused. In my considered view, the
learned Magistrate has not exercised the discretion judiciously but has
exercised the same arbitrarily to the disadvantage of the accused. The said

order, therefore, cannot be sustained.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3327 OF 2015
Mr. Sanjay Vasant Kadam ..Petitioner
v/s.
The State of Maharashtra . ..Respondents
WITH
CRIMINAL APPLICATION NO. 375 OF 2015
 IN
CRIMINAL WRIT PETITION NO. 3327 OF 2015
Dr. Praveen Gedam, IAS ..Intervenor
 In the matter between
Mr. Sanjay Vasant Kadam ..Petitioner
v/s.
The State of Maharashtra . ..Respondents


 CORAM : SMT. ANUJA PRABHUDESSAI, J.
 RESERVED ON : 4th SEPTEMBER, 2015.
 DATED : 29th OCTOBER, 2015.



1. Rule. Rule made returnable forthwith. With the consent of parties

matter is taken up for hearing.
2. The petitioner herein who is an accused in C.C.No. 107 of 2005, has
challenged-(i) the order dated 14.8.2015 allowing the application at Exhibit
142 filed by the prosecution for recall of the Investigating Officer for
further examination and (ii) the order dated 14.8.2015 allowing Exhibit
143, filed by the prosecution, and thereby directing the Investigating
Officer to record the statement of Dyaneshwar Khutwad, and further
permitting the prosecution to examine the said witness.
3. Mr. Prakash Naik, the learned Sr. Counsel for the petitioner has
submitted that the prosecution has sought to examine the Investigating
Officer for adducing evidence in respect of the photographs produced by
PW9 even though such photographs have not been referred to by any
witness other than PW9. Learned Sr.Counsel Shri Naik submits that this is
nothing but an attempt to fill up the lacuna.
4. Learned Sr. Counsel Shri Naik has further submitted that in the
course of the evidence, PW9 had for the first time deposed that one
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Dnyaneshwar Khutwad was present at the time of the incident. Based on
the said statement prosecution filed an application at Exhibit 143 seeking
leave to examine said Dnyaneshwar Khutwad as a witness. Learned Sr.
Counsel Shri Naik submits that neither PW9 nor the other witnesses had
made reference to Dnyaneshwar Khutwad in their statements under Section
161 of Cr.P.C. He has submitted that based on the improvised version of
PW9, the learned Magistrate has not only allowed the prosecution to
examine the witness Dnyaneshwar Khutwad, but has also directed the
Investigating Officer to record his statement under Section 161 of Cr.P.C.
The impugned order, according to learned Sr. Counsel Shri Naik, is on the
face of it not sustainable.
5. Mrs. Newton, the learned APP and Shri Shekhar, the Counsel for the
intervenor have submitted that the witness PW9 Pravin Gedam, is an IAS
Officer who was the victim of the incident. They have submitted that the
evidence of PW9 amply proves the presence of Dnyaneshwar Khutwad at
the place of the incident and in the light of the said statement the
prosecution had made an application under Section 311 of Cr.P.C. to
examine said Dnyaneshwar Khutwad as a prosecution witness. The learned
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APP and the learned Counsel for the intervenor have submitted that
Section 311 of Cr.P.C. confers vide powers in the court in the matter of
examination or re-examination of a witness in order to arrive at a just
decision. The learned APP contends that the evidence of PW9 proves that
the witness sought to be examined had witnessed the incident and therefore
his evidence is relevant to arrive at the just decision.
6. Having heard learned Sr. Counsel Shri Naik for the petitioner, as
well as the learned APP for the State, and the learned Counsel for the
intervenor, I shall now bestow my consideration to the issue involved. Both
the impugned orders have been passed under Section 311 of Cr.P.C. It will
therefore be advantageous to refer to and consider the scope of Section 311
of Cr.P.C. which reads as under :
“311. Power to summon material witness, or examine
person present.- Any Court may, 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.”
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7. A plain reading of Section 311 would show that this section vests
powers in the court to summon any person as witness or to recall and reexamine
any witness at any stage of the inquiry, trial or other proceedings
under the code, provided such evidence is essential for just decision of the
case.
8. In Natasha Singh Vs. CBI (State) 2013(5) SSC 741 the Honourable
Supreme Court has examined the scope of section 311 of Cr.P.C. and has
held that :
7. Section 311 Cr.P.C. empowers the court to summon a material
witness, or to examine a person present at “any stage” of “any
enquiry”, or “trial”, or “any other proceedings” under the
Cr.P.C., or to summon any person as a witness, or to recall and
re-examine any person who has already been examined if his
evidence appears to it, to be essential to the arrival of a just
decision of the case. Undoubtedly, the Cr.P.C. has conferred a
very wide discretionary power upon the court in this respect,
but such a discretion is to be exercised judiciously and not
arbitrarily. The power of the court in this context is very wide,
and in exercise of the same, it may summon any person as a
witness at any stage of the trial, or other proceedings. The court
is competent to exercise such power even suo motu if no such
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application has been filed by either of the parties. However, the
court must satisfy itself, that it was in fact essential to examine
such a witness, or to recall him for further examination in order
to arrive at a just decision of the case.”
9. In Vijaykumar Vs., State of UP & Anr. (2011) S SCC 136 the
Honourable Supreme Court has held that :
“This Section consists of two parts, viz., (1) giving discretion to
the court to examine the witness at any stage; and (2) the
mandatory portion which compells a court to examine a witness
if his evidence appears to be essential to the just decision of the
case. The Section enables and in certain circumstances, imposes
on the Court the duty of summoning witnesses who would have
been otherwise brought before the Court. This Section confers a
wide discretion on the Court to act as the exigencies of justice
require. The power of the Court under Section 165 of the
Evidence Act is complementary to its power under this Section.
These two sections between them confer jurisdiction on the
Court to act in aid of justice.”
10. The issues raised in the case are required to be examined keeping the
above principles in mind. The facts of the case reveal that sometime in the
year 2005, some places in Khed District were flooded and as a consequence
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thereof, on 25.7.2005 a meeting was called at the office of the Tahsildar to
assess and survey the loss and damage suffered by the villagers. It is
alleged that while the said process was going on, the accused entered the
office and damaged the public property and threatened the public officers
who were on duty. Shri Mohan Gopal Gelne, Naib Tahsildar at Khed
therefore lodged a FIR dated 29.7.2005, pursuant to which crime no.
120/2005 was registered. The said crime was investigated and the
investigation culminated in filing of the chargesheet in the same year i.e.
2005. The charge was framed and explained, and the petitioner accused
having pleaded not guilty, the trial commenced and several prosecution
witnesses were examined.
11. The examination-in-chief of the investigating officer PW8 Sunil
Bhoite was recorded on 14.3.2013, however at the request of the
prosecution his cross-examination was deferred and the evidence of PW9
was recorded. In the course of his evidence, PW9 produced certain
documents which necessitated the prosecution to seek re-examination of the
investigating officer in order to elucidate the evidence on the documents
referred to by PW9.
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12. The documents sought to be produced, relate to the alleged incident
and therefore germane to the issue involved in the case. The evidence
relating to the said documents though relevant to ascertain the truth, could
not have been elucidated through the investigating officer as the evidence
of PW9 was recorded subsequent to the evidence of the Investigating
Officer. It is to be noted that the cross examination of PW9 has not yet
commenced and the petitioner accused will have ample opportunity to cross
examine the investigating officer on all the facts to discredit and discard the
said documents. Hence, permitting the prosecution to re-examine the
investigating officer would not cause any prejudice to the petitioneraccused.
The impugned order dt.14.8.2015 on Exh.142 therefore does not
warrant any interference.
13. By order dt.14.8.2015 on Exhibit 143, the learned Magistrate relying
upon the decision of this Court in Kishor Singnapurkar & Ors. Vs. The
State of Maharashtra & Ors. (Cri. Application No.346 of 2012) has
directed the Investigating Officer to record the statement of the witness
Dnyaneshwar Khutwad and has further permitted the prosecution to
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examine him as a prosecution witness. Suffice to say that Section 311 of
Cr.P.C. neither mandates recording of the statement under Section 161 of
Cr.P.C. nor does this section provides any embargo on summoning any
person as a witness, whose statement has not been recorded under Section
161 of Cr.P.C. The only mandate of Section 311 of Cr.P.C. is that the
evidence of such person is essential for the just decision of the case.
14. At this stage it would also be relevant to consider the provisions of
Section 161 of Cr.P.C. Sub sec.(1) of Section 161 Cr.P.C. empowers the
police officer investigating the crime to examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
Sub sec. (3) of Section 161 provides that the police officer may reduce into
writing any statement made to him in the course of the examination under
this section. A plain reading of the sub section indicates that the police
officer is not bound to reduce the statement into writing, and failure to
record the statement in writing would not render the testimony of such
witness inadmissible, though it might finally affect the probative value of
the evidence of the witness. Reliance is placed on the case of Zahira
Habibullah Shaikh vs. State of Gujarat AIR 2004 SC 3114 wherein the
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Apex Court has held that :
“Sub-section (1) of Section 161 of the Code provides that the
competent police officer may examine orally any person
supposed to be acquainted with the facts and circumstances of
the case. Requirement is the examination by the concerned
police officer. Sub-section (3) is relevant, and it requires the
police officer to reduce into writing any statement made to him
in the course of an examination under this Section; and if he
does so, he shall make a separate and true record of the
statement of each such person whose statement he records.
Statement made by a witness to the police officer during
investigation may be reduced to writing. It is not obligatory on
the part of the police officer to record any statement made to
him. He may do so if he feels it necessary. What is enjoined by
the Section is a truthful disclosure by the person who is
examined”
15. It is also to be noted that in summons triable cases, under Section
254 of Cr.P.C. the Magistrate is required to proceed to hear the prosecution
and take all such evidence as may be produced in support of the
prosecution, and also to hear the accused and take all such evidence as he
produces in his defence. Sub sec.(2) of Section 254 enables the Magistrate,
if he thinks fit, on the application of the prosecution or the accused, to issue
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summons to any witness directing him to attend or produce any document
or other thing. This section does not prohibit examining any witness whose
statement has not been recorded under Section 161 of Cr.P.C.
16. A combined reading of Sections 161 (1) and (3), 254 and 311of Cr.P.C.
leaves no doubt that the prosecution is not precluded from calling any
witness at the enquiry or trial who has not been examined by the Police
orally or whose statement has not been reduced into writing under Section
161 (3) of the Cr.P.C. The prosecution can neither be confined to the
evidence of only those persons whose statements had been reduced into
writing under Section 161 (3) nor can the recording of such statement cannot
be a precondition for examining any person as a witness under section 311
Cr.P.C. This section confers a vide discretion on the court to act as the
exigencies of justice require. The court can exercise this power either suo
moto or upon the grounds spelt out in the application of the prosecution or
the accused, provided the Magistrate is satisfied that recall or reexamination
of a witness, or examination of any person as a witness is
essential to the just decision of the case.
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17. This being the position, in my considered view, the law neither
mandates recording of statement under Section 161 of every such person
who is proposed to be examined as a prosecution witness nor bars
examination of any persons as a witness, whose statement has not been
recorded under Section 161 of Cr.P.C. Needless to state that provisions of
Section 161 and 311 of Cr.P.C. have got different object, scope and operate
in different spheres. Therefore, preventing the prosecution from examining
any person whose statement is not recorded under Section 161 of Cr.P.C.
would in my view, render the provisions of Section 311 Cr.P.C. nugatory.
18. The decision of this Court in Kishor Singnapurkar (supra) also does
not enunciate a proposition that it is mandatory to record the statement of
the person sought to be examined as a witness under Section 161 of Cr.P.C.
or that there is a prohibition to examine a witness whose statement has not
been recorded. That was not the true purport of the order passed by this
court. This is evident from the fact that the single Judge of this Court has
observed that –
“6.Though there cannot be a general prohibition for examining
the witness whose statement had not been recorded during the
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course of investigation, propriety requires that the statement of
such a person should be recorded atleast before he is permitted
to enter the witness box. …”.
19. It was on the peculiar facts of the said case, that the learned
Single Judge of this court had felt it necessary to direct the police to
record the statement of the witness under Section 161 of Cr,.P.C.
Furthermore, the said order was passed with the consent of the parties.
The said judgment therefore does not lay down any proposition of law
that it is mandatory to record section 161 of Cr.P.C. before a person is
summoned as witness under Section 311 of Cr.P.C. Needless to state
that a judgment must be read as a whole and it is not permissible to
pick out a sentence from the judgment, divorced from the context of
the question under consideration and treat it to be the enunciation of
law. It also need not be emphasized that when a order is made by
consent of the parties, the court does not adjudicate upon the rights of
the parties nor lays down any principle of law. The learned Magistrate
has therefore erred in following the decision mechanically and further
directing the investigating officer to record the statement of said
Dayanand Khutwad.
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20. Now coming to the question whether the evidence of this witness was
essential for just decision of the case, the material on record indicates that
the crime was registered in the year 2005, and upon completion of the
investigation, chargesheet was filed in the same year. The Investigating
agency, for the reasons best known, had not recorded the statement of
Dnyaneshwar Khutwad, in the course of the investigation nor any leave was
sought under Section 173(8) of Cr.P.C. for further investigation. None of
the witnesses, whose statements were recorded under Section 161 of
Cr.P.C., had referred to the presence of Dnyaneshwar Khutwad at the place
of the incident. Similarly, the witnesses who were examined before the
court had also not referred to the presence of Dnyaneshwar Khutwad at the
place of the incident.
21. The statement of PW 9 was recorded under Section 161 of Cr.P.C in
the course of the investigation. He had not made any reference to the
witness Dnyaneshwar Khutwad in his statement recorded under Section 161
of Cr.P.C. This witness had for the first time in his evidence recorded on
11.8.2015, had referred to the presence of Dnyaneshwar Khutwad at the
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place of the incident. It was on the basis of this improvised version which
had come forth after a lapse of 10 years, that the prosecution had filed the
application at Exh.143 and sought to examine Dnyaneshwar Khutwad as a
witness. The learned Magistrate had allowed the said application by merely
observing that no prejudice would be caused if the statement of
Dnyaneshwar Khutwad is recorded under Section 161 of the Cr.P.C. and he
is examined as a prosecution witness. Apart from quoting the relevant
paragraphs from the judgment cited before him, the learned Magistrate has
not assigned any reasons either for summoning Dnyaneshwar Khutwad as
a prosecution witness or for concluding that the accused would not be
prejudiced by such action.
22. It has to be borne in mind that Section 311 of the Cr.P.C. confers vast
discretionary powers on the Court to receive additional evidence which is
germane to the issue involved in the case. The Apex Court in Natasha and
Vijay Kumar (Supra) while considering the scope and object of Section
311 of the Cr.P.C., has emphasized that the power under this section must
be exercised judiciously with great care and circumspection. These wide
discretionary powers must be invoked to receive the evidence i.e. .essential
for the just decision of the case. It, therefore, follows that the power under

Section 311 of the Cr.P.C. cannot be exercised arbitrarily or capriciously.
The application under Section 311 of the Cr.P.C. cannot be allowed to fill
up lacuna in the case of the prosecution or of the defence. Such additional
evidence must not be received to the disadvantage of the defence of the
accused or to cause serious prejudice to the defence of the accused or to
give an unfair advantage to the other party. The only determinative factor in
exercising the discretionary power under this section is that summoning /
recalling of the witness is essential for the just decision of the case.
23. In the instant case, the learned Magistrate has not considered whether
the evidence of Dnyaneshwar Khutwad was germane to the issue or
whether it was essential for the just decision of the case. On the contrary,
under the garb of exercising the powers under Section 311 of the Cr.P.C.,
the learned Magistrate has allowed the prosecution to introduce the new
witness as to fill up the lacuna in the case of the prosecution. Such
exercise of power gives unfair advantage to the prosecution and further
causes prejudice to the defence of the accused. In my considered view, the
learned Magistrate has not exercised the discretion judiciously but has
exercised the same arbitrarily to the disadvantage of the accused. The said

order, therefore, cannot be sustained.
24. Under the circumstances, and in view of the discussion supra the
petition is partly allowed. The impugned order passed on application at
Exhibit 143 directing the Investigating Officer to record the statement of
Dnyaneshwar Khutwad under Section 161 of Cr.P.C. and further allowing
the prosecution to examine said Dnyaneshwar Khutwad as a prosecution
witness is hereby quashed and set aside.
 (ANUJA PRABHUDESSAI, J.)
At this stage, the learned Counsel for the intervenor prays for stay of the
order. The request is rejected.
 (ANUJA PRABHUDESSAI, J.)

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