Aditya Nath Mittal, J.@mdashSupplementary affidavit filed by learned counsel for the applicant is taken on record.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
This criminal misc. application u/s 482 Cr.P.C. has been filed with the prayer to quash the order dated 28.7.2012 passed by 7th A.C.J.M., Agra in Criminal Case No. 369 of 2010 "State v. Gyanendra Kumar Rawat", under Sections 420, 465, 467, 468 and 471 I.P.C., P.S. Lohamandi, District Agra. Learned counsel for the applicant has submitted that in the present case the prosecution has adduced all his evidences and after that the arguments were also heard but after conclusion of the arguments of the prosecution, another witness Shatrughan Singh the then City Magistrate, Agra has been summoned u/s 311 Cr.P.C. It has been submitted that the prosecution cannot be permitted to fill up the lacuna of prosecution case and the Court below has not considered this matter.
Learned A.G.A. has defended the impugned order.
2. By the supplementary affidavit, the certified copy of the order-sheet has been filed which reveals that after the prosecution evidence and statement u/s 313 Cr.P.C., the case was listed for arguments on 8.6.2012 and the arguments were heard on 14.6.2012. On 26.7.2012 the prosecution had moved an application to summon the said witness Satrughan Singh and learned trial Court after hearing both the parties, has allowed the application u/s 311 Cr.P.C. and has summoned Satrughan Singh the then City Magistrate, Agra on the ground that in view of page Nos. 86 and 87 of the file, the City Magistrate has sent the report to District Magistrate, Agra in which it was mentioned that Digambar Singh and Jitendra Singh had cooperated with Gyanendra Kumar Rawat because the said envelop was not received by C.R.A.
3. Learned counsel for the applicant has relied upon the judgment of Orissa High Court dated 30.8.2011 passed in CRLMC No. 2680 of 2010 "Akshya Kumar Patra v. State of Orissa", in which the Orissa High Court has held as under:
It is equally important to note herein that in the present case evidence on the side of the prosecution had been concluded, defence had also concluded their evidence, arguments from both the sides had also been concluded. It is at such a stage that the prosecution sought time to advance further arguments and it is only after three adjournments thereafter, that the present petition u/s 311 Cr.P.C. came to be filed. Clearly neither at the stage of examination of the Investigating Officer nor during the examination of any of the prosecution witnesses did the prosecution bring about any relevant evidence justifying the examination of Palu @ Ajaya Kumar Barik as a witness. As held in the case of Karam Chand Mukhi and others (supra), if it was the case of the prosecution that there is negligence or mischief by the Investigating Officer in omitting the name of Palu @ Ajaya Kumar Barik from the list of charge-sheeted witness, then such a question should have been specifically put to the Investigating Officer by the prosecution in the shape of leading questions, if permitted by the trial Court, so as to provide circumstances for consideration of the trial Court in the event any such additional evidence is sought to be examined. Admittedly, in the present case nothing has been done by the prosecution and, therefore, when there is no positive circumstances available to indicate that Palu @ Ajaya Kumar Barik is a witness to the occurrence (pre or post), this Court finds that the application of the prosecution u/s 311 Cr.P.C. ought to have been rejected by the Court below.
4. Reliance has further been placed on the judgment of Uttarakhand High Court dated 27.9.2011 passed in Criminal Misc. Application (C482) No. 892 of 2011 "Km. Shailja Rawat v. State of Uttarakhand", in which the Uttarakhand High Court has held as under:
This Court agree with the learned trial Court that the object of Section 311 Code of Criminal Procedure, is not to fill the lacunae in the evidence of any party.
5. Learned counsel for the applicant has further relied upon Raghuveer Prashad Sharma v. State of Madhya Pradesh, 2009 (4) Crimes 315, in which it has been held that because the statement of Dhanno was not recorded u/s 161 Cr.P.C., therefore, there was no justification on the part of learned Court below in allowing the application filed by respondent for permitting to examine Dhanno as prosecution witness. In the present case the prosecution evidence was concluded on 8.6.2012 and the statement u/s 313 Cr.P.C. was also recorded on 8.6.2012 thereafter the arguments were heard on 14.6.2012 because the accused persons had not adduced any evidence in defence. After that various other dates were fixed for remaining arguments and on 26.7.2012 this application u/s 311 Cr.P.C. was moved by the prosecution. Admittedly the name of Satrughan Singh did not find place in the list of witnesses and he was not examined u/s 161 Cr.P.C. It was alleged that he has sent the report to the District Magistrate regarding collusion of Digambar Singh and Jitendra Singh with Gyanendra Kumar Rawat.
Certainly the prosecution cannot be permitted to fill up the lacunas after it has examined all its witnesses. No reason was shown in the application as to why the said witness was not examined by the Investigating Officer u/s 161 Cr.P.C. and why such application was not moved at the initial stage. The prosecution cannot be permitted to re-open its case and there was no justification to allow such application moved at the belated stage.
In these circumstances, the order dated 28.7.2012 cannot be sustained. The application is allowed and the order dated 28.7.2012 is quashed.
