Recalling a witness to mark a document at a belated stage, specifically after the examination of the accused under Section 313 Cr.P.C. and during final arguments, is impermissible if it serves to fill lacunae in the prosecution's case and prejudices the accused.

ORDER

This Criminal Petition is filed seeking to quash the order dated 19.11.2018 passed in Crl.M.P.No.1808 of 2018 in C.C.No.201 of 2013 by the Special Judicial Magistrate of First Class, (Excise) at Karimnagar.

2. The brief facts of the case are that the present Criminal Petition is filed challenging the order passed in Crl.M.P. No.1808 of 2018 in C.C. No.201 of 2013 by the learned Special Judicial Magistrate of First Class (Excise), Karimnagar, whereby an application filed under Section 311 Cr.P.C. to recall P.W.7 for marking Fax No.553/2012 dated 28.08.2012 was dismissed. The trial Court noted that P.W.7, the Investigating Officer, had already been examined at length and documents were marked through him. Thereafter, the accused were examined under Section 313 Cr.P.C. and the matter was posted for arguments. At that stage, the prosecution sought recall of P.W.7 to mark the said document, which according to the prosecution was already filed along with the charge sheet. The trial Court, finding no sufficient explanation for non-marking of the document earlier and holding that the petition was filed at a belated stage after completion of defence arguments, dismissed the application observing that it would amount to filling lacunae in the prosecution case. Aggrieved thereby, the petitioner/de facto complainant filed the present Criminal Petition.

3. Heard Sri Vladimeer Khatoon, learned counsel appearing on behalf of the petitioner as well as Sri M. Ramachandra Reddy, learned Additional Public Prosecutor appearing on behalf of the respondent – State.

4. Learned counsel for the petitioner submitted that the order of the trial Court was illegal and improper and that the document sought to be marked was not a new document, but one already filed along with the charge sheet and shown in the list of documents. He further submitted that the said document, relating to travel details of one Muduganti Sangeetha issued by the Bureau of Immigration, was crucial to prove the allegation of forgery concerning the resolution dated 23.09.2011. He contended that the omission to mark the document occurred due to negligence of the Public Prosecutor and that grave prejudice would be caused if the document was not brought on record. He further contended that the petition for recall was filed immediately after noticing the omission and was not intended to fill lacunae. Therefore, he prayed the Court to set aside the order of the trial Court by allowing this Criminal Petition.

5. Learned Additional Public Prosecutor supported the request for recall and submitted that the document was part of the charge sheet record and was necessary for just adjudication of the case. However, it was also brought to the notice of this Court that the matter is of the year 2013 and has been pending for long. Therefore, he prayed the Court to dismiss the Criminal Petition.

6. In the light of the submissions made by both the counsel and upon perusal of the material on record, it appears that P.W.7 was examined in full and documents were marked through him. Thereafter, the accused were examined under Section 313 Cr.P.C. and the matter had reached the stage of final arguments. The application for recall was filed only thereafter. No satisfactory explanation has been offered as to why the document, though available on record, was not marked during the chief examination or by seeking timely re-examination of P.W.7. The trial Court rightly observed that permitting recall at such a belated stage, after defence arguments had commenced, would cause prejudice to the accused and would