IMPORTANT POINT
Court has ample powers of summoning or recalling and re-examining any witness and only condition prescribed is that evidence sought to be obtained must be essential to just decision of case.

JUDGMENT

Manoj Kumar Ohri, J.—The present petition has been instituted challenging the impugned order dated 15.07.2019 passed by the District & Sessions Judge-Cum-Special Judge (PC Act) (CBI) in CC No. 04/2019. Vide impugned order, the petitioner’s application filed under Section 311 Cr.P.C. for recall of witnesses and filing additional documents was dismissed.

2. Briefly, the facts necessary for disposal of present petition are that one Vijender Singh filed a complaint dated 02.02.2012 with the CBI wherein it was stated that he had applied to the Office of SDM-cum-Registrar of Societies, Geeta Colony, Delhi for registration of an NGO in the name of ‘help for help with helping hand’. In this connection, the complainant visited the said office number of times and also met respondents, however, the requisite certificate of registration was not issued. On 23.01.12, the complainant met respondent no.1 (the concerned clerk) who asked him to speak to respondent no.2 (a peon in the said office) in this regard. When the complainant met respondent no.2, he demanded Rs.3000/- from the complainant and also asked for his mobile number. On 31.01.12 at about 17:10 hours, respondent no.1 called the complainant and told him that the society has been registered and he should pay Rs.3000/- to respondent no.2 to get the certificate. As the complainant was not willing to pay the bribe, he filed a complaint with the CBI. After conducting enquiries, the CBI registered a case. On 03.03.12, a trap was laid and respondent no.2, while negotiating the bribe amount, was caught red handed. Subsequently, after completing the investigation, a charge-sheet was filed under Sections 120-B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988.

3. The prosecution filed CDs containing voice samples and voice recordings of the respondents in support of the case. The cognizance of the offence was taken and the trial proceeded. The prosecution examined 13 witnesses in total. Vide order dated 01.05.2019, the prosecution evidence was closed. The statement of both the accused/respondents under Section 313 Cr.P.C. was recorded on 27.05.2019 and the case was listed on 01.07.2019 for the recording of the defence evidence. At this stage, i.e. on 01.07.2019, the petitioner/CBI moved an application under Section 311 Cr.P.C. to recall the witnesses, namely, Nikhil Malhotra, S.K. Khullar and the complainant. A prayer was also made to place on record the certificate under Section 65-B of Indian Evidence Act with reference to the voice samples and the voice recordings.

4. It is the case of the petitioner that the requisite certificates under Section 65B of the Indian Evidence Act could not be filed earlier inadvertently. However, the CDs in respect of the above voice samples and voice recordings were already filed and placed on record. Learned Counsel for the petitioner submitted that by filing the aforesaid certificate under Section 65B of the Indian Evidence Act and recalling the witnesses in this respect would not change the nature of the case against the accused/respondents as the said conversations have been relied upon by the prosecution right from the inception and the CDs containing the said conversations are already part of the trial court record. It was submitted that the error in not placing the said certificates on record earlier was bona fide and the requisite application was filed in time as the case was still at the stage of recording of the defence evidence. Learned counsel urged that it cannot be said that the application was moved to fill up the lacuna. He assailed the observation in the impugned order where it has been observed that the defence of the accused had proceeded on the premise that the recordings would not be read in evidence and allowing the application would amount to filling up the lacuna in the case, thus, prejudicing the accused.

5. Per contra, learned counsel for the respondents submitted t