S.311 CrPC Power Can't Be Invoked To Fill Up Lacunae In Defence : Supreme Court Quashes Order To Recall Rape Victim For Cross Examination

By the time the recall application was moved, 19 other prosecution witnesses had already been examined and the trial had substantially progressed. The trial has already been prolonged unduly, and the Court has a duty to ensure its expeditious conclusion. The trial in this case has been pending for over eight years.

16. Secondly, the principal ground urged in support of the

application under Section 311 CrPC is that certain facts arising

from the CDRs of the relevant mobile numbers could not be

brought on record during the earlier cross-examination due to

inadvertence. However, it is an admitted position that the said

CDRs were filed by the prosecution itself along with the chargesheet and formed part of the record throughout the course of the trial. The defence was thus aware of the said material and had adequate opportunity to examine the prosecutrix with reference thereto. The power under Section 311 CrPC cannot be exercised merely to fill up lacunae in the defence case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2848 OF 2026

THE STATE OF TRIPURA Vs  PANNA AHMED 

Author: SATISH CHANDRA SHARMA, J.

Citation:  2026 INSC 584.

Dated: May 26, 2026.

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Bombay HC: Under which circumstances, rejection of application U/S 311 of CRPC of Prosecution by Session Judge can be said to be legal and correct?

The learned Trial Court has rightly observed that in view of the provisions of Section 293 of the Code of Criminal Procedure, 1973, the Chemical Analyser’s reports are admissible in evidence and can be read in evidence without formal examination of the Chemical Analyser. The reports being documents issued by a public servant in discharge of official duties carry a statutory presumption with regard to their authenticity. Therefore, there was no absolute necessity for the prosecution to examine the Chemical Analyser merely for proving the contents of the reports already exhibited on record.{Para 8}

9. The learned Trial Court has also taken into consideration the stage of the trial and the fact that the prosecution evidence had already been closed. The matter was thereafter fixed for recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. In such circumstances, the learned Trial Court was justified in holding that no sufficient ground was made out for exercising powers under Section 311 of the Code of Criminal Procedure, 1973.

10. In my considered opinion, no error, illegality or perversity has been committed by the learned Trial Court while rejecting the application preferred by the prosecution. The petitioner-State has failed to make out any case warranting interference by this Court in exercise of its extraordinary writ jurisdiction.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 569 OF 2026

The State Of Maharashtra Vs  Gokul Gotiram Jadhav

CORAM : MEHROZ K. PATHAN, J.

DATED : 28.04.2026

PER COURT :

Citation: 2026:BHC-AUG:21268

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Whether Sessions Judge Should Permit Prosecution to Call Chemical Analyser After Closure of Evidence? A Practical Guide on Sections 293, 311 and 313 CrPC

 In criminal trials, few issues create more avoidable confusion than the handling of Chemical Analyser reports. Trial courts often confront a familiar sequence: the prosecution tenders a Chemical Analyser report under Section 293 of the Code of Criminal Procedure, the report is exhibited subject to objection, the prosecution closes its evidence, and thereafter seeks to call the Chemical Analyser under Section 311 CrPC. The real question is not merely whether the report is admissible, but whether a belated prosecution request to examine the expert should be allowed after closure, particularly when the case has reached the Section 313 stage.

Section 293 CrPC: what it does, and what it does not

Section 293 CrPC permits reports of specified Government scientific experts, including Chemical Examiners, to be used as evidence in inquiry, trial, or other proceeding. The statutory object is procedural convenience: it dispenses with the routine necessity of calling the expert in every case merely to prove the contents of an official scientific report.

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Her Word, Her Capacity: Judicial Handling of Intellectually Disabled Rape Victims’ Testimony

I. The Illustration: A Trial Judge’s Dilemma

A Sessions Court is trying a rape case. The prosecutrix is repeatedly described as “mentally retarded” in the charge‑sheet and during trial. The label rests on two slender threads:

• A one‑line remark by a doctor in the medico‑legal certificate that she is a “mentally retarded girl”.

• A similar one‑line assertion by her mother in the witness‑box.

There is no psychiatric evaluation, no IQ assessment, no description of the degree of intellectual disability, and no medical board report.

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Bombay HC: Under which circumstances the court can permit recall of witness in criminal case?

 Learned Counsel for the applicants has relied upon ruling in the case of (Riyazuddin & ors. Vs. State of UP)1, reported in MANU/UP/0868/2001 : 2001 Cri.L.J. 3907. It appears that the Apex Court in the case of Riyazuddin and ors. (supra) had granted an opportunity and had directed the learned Additional Sessions Judge, in view of section 311 of the Code to allow reexamination/cross-examination of witnesses on the particular specified date subject to costs and expenses. Under section 311 of the Code of Criminal Procedure, the trial Court possesses powers to summon, re-call, re-examine any witness if his evidence appears to be essential for just decision of the case. After all, object of the criminal trial is to find out truth and it is the right of the accused to have fair opportunity. {Para 3}

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application No. 401 of 2011

Decided On: 09.08.2011

Mansaram Shaligram Sawalkar and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2011 ALLMR(CRI) 3651, MANU/MH/1965/2011

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Andhra Pradesh HC: Whether the court can summon discharged or acquitted accused as witness U/S 311 of CRPC in the same case?

A plain reading of Sec. 311 does not place any restrictions on the power of the Court to issue summons to a witness if the Magistrate is of the opinion that the evidence of those witnesses is essential to the just decision of the case. After the complainant compounded the offences with Subbarayan and Kannan the latter two persons were acquitted as a result of the compounding and no longer figure as co-accused in the case to be tried along with the revision petitioner. It can no doubt be said that having figured as co-accused at an earlier point of time, the evidence which those witnesses are likely to give is in the nature of an accomplice evidence but then the court will naturally be on its guard in not acting on such evidence unless their evidence is corroborated in material particulars. The absence of evidence corroborating the evidence of these two persons in material particulars cannot impinge in any manner on the power of the court to summon them as witnesses. Sec. 311, therefore, gives ample power to the court to summon witnesses who are no longer accused before him if the Magistrate felt that their evidence is essential to the just decision of the case. {Para 2}

3. A few cases which have been relied upon can now be noticed. In Banu Singh v. Emperor I.L.R. 33 Cal. 1353 a Division Bench expressed itself:

"The law, however, is well settled, and there can be no controversy on the point that an accomplice, if he is not an accused under trial in the same case is a competent witness and may, as any other witness, be examined on oath.........On such a discharge or acquittal he becomes a competent witness against other persons accused of the same offence. The disability to be examined as a witness on oath against the persons who are brought before the court on the same indictment, may thus cease on the withdrawal of the indictment, against him".

The Supreme Court in Jamatraj v. State of Maharashtra MANU/SC/0063/1967 : A.I.R. 1968 S.C. 178, while considering the sweep of Sec. 540. Cr.P.C. (Repealed Code) expressed itself:

"Statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness provided the just decision of the case demands it............If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court's action is supportable as being in aid of a just decision, the action cannot be regarded as exceeding the jurisdiction."

The Supreme Court in the aforesaid decision referred to Dora Harrig's case 1927-2KB 587. In that case five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora, against whom the evidence went, to cross-examine him but Dora was not asked to enter the Box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power.

4. The observations made in the aforesaid decisions go to indicate that once the court's action is supportable as being in aid of a just decision, no exception can be taken if the Magistrate ordered issue of summons to persons who were no longer before him as accused to be tried in the case against the revision petitioner alone. The learned Magistrate has expressed himself that the witnesses appear to be just witnesses and the petition is worth allowing to meet the ends of justice. These expressions can, in the context, be only construed to mean that the Magistrate felt that the examination of these witnesses is essential to the just decision of the case. This objection raised by the revision petitioner is accordingly rejected.

 IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Crl. R.C. No. 803/82

Decided On: 17.12.1983

N. Chennimaliay Vs. The Andhra Pradesh Marketing Corporation

Hon'ble Judges/Coram:

P. Ramachandra Raju, J.

 Citations

1984 MLJ CRI 1 4651984 ALT 1 3151984 APLJ HC 1 2371983 SCC ONLINE AP 1971984 AP LJ 1 2371984 CRI LJ NOC 139 531984 MLJ CRL 1 4651984 APLJ 1 237, MANU/AP/0245/1983

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What procedure the court should follow if defence is seeking to recall a prosecution witness on the ground that he has given inconsistent statement before another forum?

 In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW-2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses. {Para 6}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. ... of 2008 

Decided On: 13.10.2008

Hanuman Ram Vs. The State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and J.M. Panchal, JJ.

Author: Arijit Pasayat, J.

Citation: 2009 (64) ACC 895 (SC),MANU/SC/8107/2008.

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Can the court call a witness in a criminal case on an application filed by a third party U/S 311 of the CrPC?

In the facts and circumstances of the present case, the petitioner-Company is neither the complainant nor is a victim but is a telecasting company who had conducted a sting operation and the video was telecasted which bearing has got direct bearing upon the subject matter of the present FIR. This Court is of the view that the subject matter of the telecast goes to the root of the matter. The scope of Section 311 Cr.P.C is very wide as has been so held in a plethora of judgments as discussed above. The journalist namely Abhishek who has been summoned as a prosecution witness is not an authorized person, according to the petitioner-Company, whereas the Deputy General Manager namely Arunesh Kumar is an authorised person to issue a certificate and prove the same under Section 65-B of the Evidence Act vide Annexure P-7 which is an authorization letter. Therefore, this Court is of the view that even if the petitioner is not a victim nor complainant but he could have certainly filed application under Section 311 Cr.P.C on the basis of facts and circumstances. {Para 26}

27. It is therefore held that for the purpose of filing of application under Section 311 Cr.P.C, it is not necessary that the applicant has to be either complainant or prosecution or victim or a listed witness. The provisions of Section 311 Cr.P.C can be invoked by any other person who is able to show that the evidence of witness sought to be examined will be necessary for just decision of the case. Rather, a persual of Section 311 Cr.P.C would show that it is the duty of Court to apply its mind to ascertain as to whether testimony of person sought to be summoned is required for just decision of the case. However in such like cases, power has to be exercised in a very careful, diligent and judicious manner for which cogent and strong reasons should be recorded.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRM-M-52970-2022 (O&M)

Bennett Coleman and Company Limited Vs State of Haryana and others

CORAM: HON’BLE MR. JUSTICE JASGURPREET SINGH PURI

Neutral Citation No:=2023:PHHC:046881

Date of Decision: 29.03.2023

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Can the court recall the prosecution witness if he has given a different statement in another case?

Code of Criminal Procedure 1973; Section 311 - Merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness.

IN THE SUPREME COURT OF INDIA 

Coram: C.T. RAVIKUMAR; SUDHANSHU DHULIA, JJ.

 Special Leave to Appeal (Crl.) No(s). 5647/2022;

Dated: 21-06-2022 

SAUD FAISAL Vs STATE OF UTTAR PRADESH & ANR.

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Should the court permit the accused to recall a prosecutrix for cross-examination in an offence under the POCSO Act?

Brief facts of the case are that the petitioner is facing trial under

Sections 363, 366 and 376 of IPC and section 5(1)/6 6 of the

Protection of Children from Sexual Offences (POCSO) Act, 2012.

During trial, statements of mother and father of the prosecutrix

were recorded on 05.01.2019 & 03.08.2019 as PW-2 and PW-4

respectively and the prosecutrix was examined on 27.11.2018 as

PW-1. Now, prosecutrix had attained the age of majority and she

again approached the petitioner for having a love affair with him

and informed him that she had given the statements under

undue pressure of family members. On the basis of aforesaid

assurance of the prosecutrix, petitioner filed an application under Section 311 of Code of Criminal Procedure, 1973, for

re-examination of the prosecutrix and her parents and specific

reasons were assigned in the application filed as Annexure P/5

but learned trial Court vide its order dated 26.11.2021 has

rejected the application without appreciating the fact that the

statement of the prosecutrix was recorded under duress and

prosecutrix turned major only in the year 2021 (as per the

prosecution). Hence, the present petition filed by the petitioner.

 8. It is observed by above discussion, right to cross-examination is a part of right to fair trial which every person has in the spirit of right to life and personal liberty. In the case in hand, the ground of re-examination is that earlier the statement of the prosecutrix was recorded under duress but the learned trial court ignoring the aforesaid facts and summarily dismissed the application filed by the petitioner. The learned court below ought to have allowed the petition by exercising the jurisdiction under Section 311 Cr.P.C.

9. In the result, I find some merit in this petition and accordingly, the same stands allowed only for re-examination of the prosecutrix.The learned trial court shall afford a chance to the petitioner to cross-examine the prosecutrix. 

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 74 of 2022

Order delivered on : 25/02/2022

 Manish Sonkar Vs  State of Chhattisgarh

Dated: 25 /02/2022

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Can the court recall a witness as per S 311 of CRPC to confront him with his later evidence before another forum?

The learned Counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was examined by the Sessions Judge on 6.2.1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW 2 Mokam Singh was recalled. PW-2 was again examined and cross-examined on 31.7.1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, PW-2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness.

In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.

 Supreme Court of India

Mishrilal & Ors vs State Of M.P. & Ors on 11 May, 2005

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Whether the court can reject the application for summoning of witnesses U/S 311 of CRPC on the ground that the High court makes the case time-bound?

 An FIR came to be lodged against the petitioner and her father for an incident that took place on 1.1.2008 wherein it was alleged that the petitioner herein had administered poison/chemical to the complainant (husband in the present proceedings). On the basis of the FIR that was lodged a divorce decree was granted to the husband on the ground of cruelty which order has been affirmed upto the Hon'ble Supreme Court. The petitioner herein has been able to lay hands on the opinion of the Medical Board as to the nature of the poison that was allegedly administered and the opinion of the Board has become relevant to establish the fact whether a false complaint was registered against the petitioner and her father and whether lodging of such false complaint would or would not tantamount to cruelty. Therefore, rejecting the application under Section 311 Cr.P.C. without going into the crux of the matter , rejecting the said application solely on the ground that trial has to be completed within a period of two months is not a ground that is sustainable in the eye of law . The concept of fair trial as has been held in various judgments particularly in Ram 12 of 13 Mehar and others's case (supra) would necessitate that adequate opportunity is given to the parties in order to enable the court to arrive at a just and fair final decision.

For the reasons afore-stated, the present petition is allowed, impugned order is set aside and the application filed by the petitioner under Section 311 Cr.PC. for leading additional evidence is allowed and the petitioner is hereby given two effective opportunity to lead additional evidence on the date to be fixed by the trial court to be concluded within a week.

Punjab-Haryana High Court

Sonia vs State Of Haryana And Others on 9 January, 2017

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Whether court can permit a party to call any witness as per S 311 of CRPC when case is fixed for Judgment?

 In view of the provisions of Section 311 and the

above-referred authorities, it is abundantly clear that

Section 311 empowers the Court to issue summons to

any witness whose evidence is found essential for the

just decision of the case, even if such witness is not

cited by the prosecution originally and this power can

be exercised at any state of the enquiry or trial till

before the judgment is actually pronounced. ‘’

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1706 OF 2019

Balu  Bajirao Shinde Vs   The State of Maharashtra,

CORAM : SURENDRA P. TAVADE, J.

DATE : 23.08.2021

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Whether court can permit production of certificate U/S 65B of Evidence Act at subsequent stage?

Anwar P.V. (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C. or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65B.

Emails are downloaded and computer output, in the form of paper prints, are taken every day. These emails may become relevant and important electronic evidence, subsequently. It is difficult to conceive and accept that the emails would be inadmissible, if the official i.e. the person who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65B.

IN THE HIGH COURT OF DELHI

Crl. A. 711/2014

Decided On: 24.11.2015

 Kundan Singh  Vs. The State

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Whether court should reject prayer for calling of material witness considering age of case?

Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 688 of 2019 

Decided On: 16.04.2019

 Manju Devi Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: AIR 2019 SC 1976.

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How to decide application of accused for production of documents and examination of witnesses?

 Clearly the documents production of which is sought for by the petitioner, are relevant for the just decision of the case. Petitioner had earlier filed an application seeking production of these documents as well as summoning of the concerned witnesses at the stage when prosecution evidence was being led. Said application was permitted to be withdrawn on 04.07.2018, with liberty to summon the relevant record and witnesses at the stage of defence evidence. Once liberty was granted to the petitioner to summon the relevant record and the witnesses at the stage of defence evidence, subject application could

not have been rejected on the ground of delay or having been moved at the belated stage.

25. The reasoning given by the Trial Court that specific particulars or dates of meetings have not been given is ex-facie unsubstantiated. The list of documents, as extracted hereinabove, clearly shows that the petitioner has given requisite particulars so as to identify the relevant documents. It may further be noticed that subject application was filed along with an application under Section 315 Cr.P.C filed by the petitioner as well as the other co-accused. Applications under Section 315 Cr.P.C. of the accused were allowed and accused were permitted to examine themselves as witnesses.

26. Under Section 243 Cr.P.C. it is obligatory on the part of the Trial Court to issue process when the accused seeks summoning of any witness or production of any document in his defence. The only ground on which such an application can be refused is if the same was vexatious, delayed or would defeat the ends of justice.

27. In the instant case, no such findings have been returned by the Trial Court. On the contrary, the Trial Court has erred in not noticing that the petitioner had moved an application even at the stage when prosecution evidence was being led and was permitted to withdraw that application with liberty to move an appropriate application at the stage of defence evidence and that is exactly what the petitioner has done.

28. Further, the Trial Court has clearly erred in holding that it is within the discretion of the court, under Section 243 Cr.P.C. to decline such an application. On the contrary, as per section 243 Cr.P.C., it is obligatory on the part of the Trial Court to issue process, unless, it for the reasons to be recorded, holds that the application is vexatious, delayed or defeats the ends of justice.

29. Further reasoning given by the Trial Court, that the petitioner is seeking re-summoning of the witnesses, who have already been examined, is also not correct. Petitioner has not sought summoning of the witnesses, who have already been examined as prosecution witnesses for re-examination/cross-examination. Petitioner has merely sought production of the relevant record of the association from the custodian thereof. Admittedly, the record would come from an undisputed source. Petitioner has not sought re-summoning of any witness already examined, by name but has only sought production of the documents from the custodian thereof. Once the documents are produced, it would be open to the petitioner to prove the same in accordance with the Evidence Act.

30. Further reasoning given by the Trial Court, that the petitioner could have obtained copies of the documents under the Right to Information Act and then cross-examined the witnesses on the said documents, is also erroneous. Even if a person were to obtain copies of the documents under the Right to Information Act, said copies would not become primary evidence in terms of the Evidence Act and

a party would still need to summon the original record from the custodian thereof.

31. Since it is admittedly not the case of the respondent that the documents are not relevant or have no bearing on the just decision of the case, I am of the considered opinion that the Trial Court in the facts, as noticed hereinabove, has clearly erred in dismissing the application of the petitioner filed under Section 91 read with Section 311 Cr.P.C.

32. In view of the above, impugned order dated 03.12.2018 is set aside. Consequently, the application, filed by the petitioner, under Section 91 read with Section 311 Cr.P.C. dated 14.11.2018 is allowed,

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 01st July, 2019

 CRL.REV.P. 1169/2018

SHYAM MANOHAR SAXENA Vs  CENTRAL BUREAU OF INVESTIGATION & ORS

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

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When it is permissible for court to allow production of additional evidence at belated stage in cheque dishonour case?

The appellant filed Criminal Application Nos. 203 of 2018 and 256 of 2018 under Sections 311 read with 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking permission to place on record documents and for permission to lead further evidence and to call and examine Inspector from the Department of Shops and Establishment. The said applications moved on behalf of the appellant cannot be permitted at this stage. The reliance placed on behalf of the appellant on the judgment of the Hon'ble Supreme Court in the case of Ashok Tshering Bhutia .vs. State of Sikkim- MANU/SC/0156/2011 : (2011) 4 Supreme Court Cases 402 in this regard, is also misplaced. In the said judgment, the Hon'ble Supreme Court has laid down that additional evidence at belated stage is permissible in case of failure of justice. But, it is further laid down that such power is to be exercised sparingly and only in exceptional cases where the Court is satisfied that permitting additional evidence would serve the interest of justice. It is laid down that it would depend upon the facts and circumstances of the individual case as to whether such permission was to be granted and further that it should be generally invoked when formal proof for the prosecution is necessary. The said position of law does not favour the appellant in the present case at all. These applications are clearly an afterthought and a feeble attempt to support the contentions raised on behalf of the appellant. The said applications pertain to an attempt on the part of the appellant to prove that that the said Rajiv Shivji Sharma was indeed the Proprietor of the appellant. This is an attempt to demonstrate that the complaint was filed by an authorised person. The appellant has failed to make out a case for adducing additional evidence at this stage. Even otherwise, this Court has found that on merits the appellant has absolutely no case. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (APPA) No. 406/2016 in Criminal Appeal No. 479/2018

Decided On: 31.07.2018

Century Steel Traders Vs. Polaris Steel Castings Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 303

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What is duty of trial court and public prosecutor while trying case under POCSO Act?

At this juncture, it needs to be mentioned that at the time when we proposed to re-examine C.W.1 and P.W.13 and to receive additional evidence both oral and documentary, Mr.N.Manokaran, the learned counsel for the accused/appellant, in fact, raised an objection, on the ground that it would amount to filling up the lacunae in the case of the prosecution. That was rejected by us, by referring to Section 391 and 311 Cr.P.C.  Section 391 Cr.P.C. states that if this Court feels the reception of additional evidence to be necessary, then, after recording its reasons, the Court has to take such evidence.  Thus, the only bench mark is, whether such additional evidence in this case is necessary or not, to arrive at a correct conclusion. Since in the instant case the age of P.W.3 is very fundamental to do justice, we thought, receiving additional evidence in respect of the age of P.W.3 was absolutely necessary.  As we have held already when we passed the interim order, now, we also hold that the action of this Court in receiving additional evidence by examining C.W.1 and questioning P.W.13 in exercise of our power under Section 165 of the Indian Evidence Act and in receiving Exs.C-1 to C-5 would not amount to filling up the lacunae in the case of the prosecution and, therefore, this argument is once again rejected.
Before parting with this case, we wish to say, that in this case, had the learned Additional Public Prosecutor, who conducted the trial, or the trial Court  been vigilant in discharging their obligations under the law in the right manner and in the right way, the valuable time of this Court would not have been wasted in  examining two witnesses and by receiving additional evidence.  We only expect that this case shall be taken as an eye-opener for the subordinate judiciary as well as the learned Public Prosecutors to realise their responsibilities so as to be vigilant to ensure that "Justice always triumphs". 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED ::  04-08-2016

CORAM

 MR.JUSTICE S.NAGAMUTHU

AND

MR.JUSTICE V.BHARATHIDASAN


CRL.APPEAL No.269 of 2016

Subramaniam vs The State, rep.by The Inspector of Police,
Citation: 2017 ALLMR(CRI)JOURNAL 170

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Whether civil court has power to summon witnesses as per S 311 of CRPC While conducting enquiry U/S 340 of CRPC?

Thus in so far as section 340 of Code of Criminal Procedure is concerned, it is not necessary for the Judge to hear other side, but he may hear the applicant. It is not a requirement to hear the person against whom the proceedings are going to be initiated. It is entirely upto the Court to decide whether to initiate the proceedings under section 340 of Code of Criminal Procedure. Thus the proceedings of the application under section 340 of Code of Criminal Procedure are Kangaroo Baby proceedings within the civil trial and still it is of an independent character and therefore, for the purpose of the said inquiry the powers under Code of Criminal Procedure can be enjoyed the Civil Court.

19. Thus, I answer the issue No. 1 in negative. It is not necessary for the Court to give notice to the said person or even to hear that person on this point.

Issue No. 2 is held in affirmative that the Civil Court conducting the inquiry under section 340 of Code of Criminal Procedure has power to call witness and can exercise the power under section 311 of Code of Criminal Procedure.

IN THE HIGH COURT OF BOMBAY

Writ Petition (S.T.) No. 4899 of 2017

Decided On: 17.04.2017

 Union of India and Ors. Vs. Haresh Virumal Milani

Hon'ble Judges/Coram:

Mridula Bhatkar, J.
Citation: 2017(4) MHLJ 441

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Principles to be followed by court while deciding application for recalling of witnesses

In Mohanlal Shamji Soni (supra), Supreme
Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. Though
Section 540 (Section 311 of the new
Code) is, in the widest possible terms
and calls for no limitation, either with
regard to the stage at which the powers
of the court should be exercised, or
with regard to the manner in which they
should be exercised, that power is
circumscribed by the principle that[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court essential to a just decision
of the case by getting at the truth by all
lawful means. Therefore, it should be
borne in mind that the aid of the
section should be invoked only with the
object of discovering relevant facts or
obtaining proper proof of such facts for
a just decision of the case and it must
be used judicially and not capriciously
or arbitrarily because any improper or
capricious exercise of the power may
lead to undesirable results. Further it is
incumbent that due care should be
taken by the court while exercising the
power under this section and it should
not be used for filling up the lacuna left
by the prosecution or by the defence or
to the disadvantage of the accused or
to cause serious prejudice to the
defence of the accused or to give an
unfair advantage to the rival side and
further the additional evidence should
not be received as a disguise for a
retrial or to change the nature of the
case against either of the parties.”
“The principle of law that emerges
from the views expressed by this Court
in the above decisions is that the
Criminal Court has ample power to
summon any person as a witness or
recall and re-examine any such person
even if the evidence on both sides is
closed and the jurisdiction of the court
must obviously be dictated by exigency
of the situation, and fair-play and good
sense appear to be the only safe guides
and that only the requirements of
justice command the examination of
any person which would depend on the
facts and circumstances of each case.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“It is a common experience in
criminal courts that defence counsel
would raise objections whenever courts
exercise powers under Section 311 of
the Code or under Section 165 of the
Evidence Act, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
prosecution is not to be equated with
the fallout of an oversight committed by
a public prosecutor during trial, either
in producing relevant materials or in
eliciting relevant answers from
witnesses. The adage “to err is human”
is the recognition of the possibility of
making mistakes to which humans are
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
Lacuna in the prosecution must be
understood as the inherent weakness or
a latent wedge in the matrix of the
prosecution case. The advantage of it
should normally go to the accused in
the trial of the case, but an over sight
in the management of the prosecution
cannot be treated as irreparable lacuna.
No party in a trial can be foreclosed
from correcting errors. If proper
evidence was not adduced or a relevant
material was not brought on record due
to any inadvertence, the court should
be magnanimous in permitting such
mistakes to be rectified. After all,
function of the criminal Court is
administration of criminal justice and
not to count errors committed by the
parties or to find out and declare who
among the parties performed better.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR


CRL. MISC. (PET.) (CRLMP) NO. 3661 of 2015

Sant Shri Asharamji Bapu V/s. State of Rajasthan

DATED : November 3, 2016
MR. JUSTICE P.K. LOHRA

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