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2021 (7) TMI 1449 - BOMBAY HIGH COURTSeeking to recall the complainant Sujata Sutar, to prove the memory card seized in the present case - Section 311 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT:- No doubt, under Section 311 Cr.P.C., any Court may, at any stage of any inquiry, trial or other proceeding 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, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to filling up the lacunae in the case. It would also result in causing serious prejudice to the petitioner. The impugned order dated 2nd February 2021 passed by the learned Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, is quashed and set-aside - petition allowed.
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