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 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 ofSection 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.
Bombay High Court
Sanjay Vasant Kadam vs The State Of Maharashtra on 29 October, 2015
Bench: Anuja Prabhudessai
DATED : 29th OCTOBER, 2015.
Citation;2016 CRLJ(NOC)103 Bom
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