SHANKARLAL Vs. BALWANT SINGH

JUDGEMENT

(1.) This is a petition under Sec. 482 of the Code of Criminal Procedure being aggrieved by the order dtd. 9/1/2023 passed by Additional Sessions Judge, Alot, Dist. Ratlam in Sessions Trial No.05/2016 whereby the application filed under Sec. 311 Cr.P.C. for recall of witness in Crime No.276/2015 by the respondent prosecution has been allowed.

(2.) The applicants are accused person in a complaint filed by Narsingh for commission of offences under Sec. 420, 467, 468, 471 IPC. The Magistrate had sent the same for investigation to the police.

(3.) Counsel for the applicants submits that after closure of evidence of prosecution witnesses twice and after recording the statement of accused under Sec. 311, an application has been filed to produce handwriting expert and other documents and to recall investigation officer for evidence has been erroneously allowed. The said application ought to have been rejected by the trial Court as the same was filed by the prosecution to fill up the lacuna which is not permissible under the provisions of Sec. 311 Cr.P.C. To bolster his submissions, he has placed reliance on an order dtd. 20/1/2016 passed in Cr.R. No.1626/2015 by Coordinate Bench in the case of Indrajeet Singh vs. The State of M.P. wherein it has been held that the prosecution cannot be allowed to fill up the lacuna. In the said case, the prosecution moved an application to examine important witness Dr. N.K. Upadhyay, who could not be examined due to bona fide mistake. He also placed reliance on a judgment passed by High Court of Bombay in Criminal Writ Petition No.418 of 1994 (B.D. Goel vs. Ebrahim Haji Husen Sanghani and Ors.) decided on 23/6/2000 wherein it has been reiterated that after recording the statement of accused under Sec. 313 Cr.P.C., the prosecution cannot file an application for recalling prosecution witness to fill up the lacuna. He also placed reliance on an order dtd. 13/7/2021 passed by Bombay High Court in Criminal Writ Petition No.1658 of 2021 (Nayna Rajan Guhagarkar vs. State of Maharashtra) wherein the same law has been reiterated.