27.02.2026 vs Hp State Co-Operative Agricultural & … on 12 March, 2026

Himachal Pradesh High Court

Reserved On: 27.02.2026 vs Hp State Co-Operative Agricultural & … on 12 March, 2026

                                                                                     2026:HHC:6749




      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                                   .
                                              Cr. MMO No. 57 of 2026





                                              Reserved on: 27.02.2026
                                              Date of Decision: 12.03.2026.





    Yashwant Singh                                                               ...Petitioner




                                                     of
                                           Versus

    HP State Co-operative Agricultural & Rural Bank Ltd.
                           rt                       ...Respondent

    Coram
    Hon'ble Mr Justice Rakesh Kainthla, Judge.
    Whether approved for reporting?1 No



    For the Petitioner                          :      Mr Tara Singh Chauhan, Senior
                                                       Advocate, with Mr Surya
                                                       Chauhan, Advocate.




    For Respondent                              :      Mr Deepak Sharma, Advocate.





    Rakesh Kainthla, Judge

The present petition is directed against the order

dated 09.12.2025 passed by learned Judicial Magistrate First

Class, Arki, District Solan, H.P. (learned Trial Court) in Cr. Case

No. 61/3 of 2011 titled HP State Co-operative Agricultural Bank

Ltd. vs. Yashwant Singh vide which learned Trial Court allowed

the application filed by the respondent (complainant before the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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learned Trial Court) under Section 311 Cr.P.C. for placing the

documents on record and examining the witnesses. (Parties shall

.

hereinafter be referred to in the same manner as they were arrayed

before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

of
petition are that the complainant filed a complaint against the

accused before the learned Trial Court for the commission of an

offence
rt
punishable under Section 138 of the Negotiable

Instruments Act (NI Act). When the matter was listed before the

learned Trial Court, the complainant filed an application under

Section 311 of Cr.P.C. for filing the documents and summoning the

witnesses. It was asserted that the accused denied his signature

on the cheque, that he had opened a bank account in the name of

M/s Payal Automobiles with State Bank of Patiala, Ghumarwin or

that he had taken the agency/dealership of Sonalika International

Tractors. An FIR was registered against the accused, and a charge

sheet was filed before the Court. It was found during the

investigation that the accused had opened an account with the

State Bank of Patiala, Ghumarwin, in the name of M/s Payal

Automobiles. He had also issued the cheques. His signatures were

sent for verification to SFSL, and as per the report, the signatures

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tallied with the specimen signatures. He also filed an application

for bail in which he admitted that he was an agent/dealer of M/s

.

Sonalika International, and he had suffered a huge loss. The

record is to be produced to show the falsity of the plea taken by

the respondent/accused in the present case. Hence, it was prayed

that the present application be allowed, the documents be taken

of
on record, and the witnesses be summoned to prove the

documents. rt

3. The application was opposed by filing a reply taking

preliminary objection regarding the lack of maintainability. The

contents of the application were denied on merits. It was

specifically denied that the police had found that the accused had

opened an account with State Bank of Patiala, Ghumarwin, in the

name of M/s Payal Automobiles or had issued the cheque. The

application was filed for prolonging the proceedings. Hence, it

was prayed that the application be dismissed.

4. Learned Trial Court held that the evidence sought to

be produced was necessary to establish the plea taken before the

Court. Therefore, the application was allowed subject to the

payment of the cost of ₹800/-.

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5. Being aggrieved by the order passed by the learned

Trial Court, the petitioner/accused has filed the present petition

.

asserting that the learned Trial Court failed to exercise the

jurisdiction vested in it as per the law and wrongly allowed the

application. The application was filed to fill the lacuna left by the

complainant. The complaint was filed in the year 2011, and the

of
evidence was completed on 02.09.2024. The application was filed

to delay the trial. Therefore, it was prayed that the present
rt
petition be allowed and the order passed by the learned Trial

Court be set aside.

6. I have heard Mr Tara Singh Chauhan, learned Senior

Advocate, assisted by Mr Surya Chauhan, learned counsel for the

petitioner/accused, and Mr Deepak Sharma, learned counsel for

the respondent/complainant.

7. Mr Tara Singh Chauhan, learned Senior Counsel for

the petitioner/accused, submitted that the learned Trial Court

erred in allowing the application. The application was filed to fill

the lacuna left by the complainant and prolong the proceedings.

Learned Trial Court erred in exercising the jurisdiction vested in

it. Hence, he prayed that the present petition be allowed and the

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order passed by the learned Trial Court be set aside. He relied

upon the judgment of Swapan Kumar Chatterjee vs. Central Bureau

.

of Investigation, Criminal Appeal No. 15 of 2019, decided on

04.01.2019, in support of his submission.

8. Mr Deepak Sharma, learned counsel for the

of
respondent/complainant, had supported the order passed by the

learned Trial Court and submitted that no interference is required

with it.

rt

9. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

10. It was laid down by Hon’ble Supreme Court in V.N.

Patil v. K. Niranjan Kumar, (2021) 3 SCC 661: 2021 SCC OnLine SC

172, that the object underlying under Section 311 of Cr.P.C. is that

there should not be any failure of justice due to the mistake of

either party in bringing the valuable evidence on record or leaving

ambiguity in the statements of witnesses examined from either

side. It was observed:

14. The object underlying Section 311 CrPC is that there may
not be a failure of justice on account of the mistake of
either party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is

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whether it is essential to the just decision of the case. The
significant expression that occurs is “at any stage of any
inquiry or trial, or other proceeding under this Code”. It is,

.

however, to be borne in mind that the discretionary power

conferred under Section 311 CrPC has to be exercised
judiciously, as it is always said, “the wider the power, the
greater is the necessity of caution while the exercise of

judicious discretion”.

xxxxx

of

16. This principle has been further reiterated in Mannan
Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri)
547 and thereafter in Ratanlal v. Prahlad Jat, (2017) 9 SCC
340 : (2017) 3 SCC (Cri) 729 and Swapan Kumar Chatterjee v.

rt
CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839. The relevant
paragraphs of Swapan Kumar Chatterjee v. CBI, (2019) 14

SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan
Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI,
(2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839], SCC p. 331, paras

10-11)

“10. The first part of this section which is permissive
gives purely discretionary authority to the criminal

court and enables it at any stage of inquiry, trial or
other proceedings under the Code to act in one of the

three ways, namely, (i) to summon any person as a
witness; or (ii) to examine any person in attendance,

though not summoned as a witness; or (iii) to recall
and re-examine any person already examined. The
second part, which is mandatory, imposes an
obligation on the court (i) to summon and examine,
or (ii) to recall and re-examine any such person if his
evidence appears to be essential to the just decision
of the case.

11. It is well settled that the power conferred under
Section 311 should be invoked by the court only to
meet the ends of justice. The power is to be exercised
only for strong and valid reasons, and it should be

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exercised with great caution and circumspection.
The court has the power under this section to even
recall witnesses for re-examination or further

.

examination, necessary in the interest of justice, but

the same has to be exercised after taking into
consideration the facts and circumstances of each
case. The power under this provision shall not be

exercised if the court is of the view that the
application has been filed as an abuse of the process
of law.”

of

17. The aim of every court is to discover the truth.
Section 311 CrPC is one of many such provisions
which strengthen the arms of a court in its effort to
rt
unearth the truth by procedure sanctioned by law. At
the same time, the discretionary power vested under

Section 311 CrPC has to be exercised judiciously for
strong and valid reasons and with caution and
circumspection to meet the ends of justice.”

11. It was held in State v. N. Seenivasagan, (2021) 14 SCC 1:

2021 SCC OnLine SC 212, that the true test under Section 311 is

whether the evidence of the person who is sought to be examined

or recalled is essential to the just decision of the case or not. It

was observed:

“12. In our view, having due regard to the nature and ambit
of Section 311 of the CrPC, it was appropriate and proper
that the applications filed by the prosecution ought to have
been allowed. Section 311 provides that any court may, at
any stage of any inquiry, trial or other proceedings under
CrPC, summon any person as a witness, examine any
person in attendance, though not summoned as a witness,
or recall and re-examine any person already examined and
the Court shall summon and examine or recall and re-

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examine any such person “if his evidence appears to it to
be essential to the just decision of the case”. The true test,
therefore, is whether it appears to the Court that the

.

evidence of such a person who is sought to be recalled is

essential to the just decision of the case.

13. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203 :

(2019) 2 SCC (Cri) 765, a two-Judge Bench of this Court
noted that an application under Section 311 could not be
rejected on the sole ground that the case had been pending

of
for an inordinate amount of time (ten years there). Rather,
it noted that: (SCC p. 209, para 13)

“13. … the length/duration of a case cannot displace
the basic requirement of ensuring a just decision
rt
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.

Speaking for the Court, Dinesh Maheshwari J.

expounded on the principles underlying Section 311
in the following terms: (Manju Devi case [Manju Devi
v. State of Rajasthan, (2019) 6 SCC 203: (2019) 2 SCC

(Cri) 765], SCC pp. 207-08, para 10)

“10. It needs hardly any emphasis that the discretionary
powers like those under Section 311CrPC are essentially
intended to ensure that every necessary and appropriate

measure is taken by the Court to keep the record straight
and to clear any ambiguity insofar as the evidence is
concerned, as also to ensure that no prejudice is caused to
anyone. The principles underlying Section 311CrPC and
amplitude of the powers of the court thereunder have been
explained by this Court in several decisions [Vide Mohanlal
Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC
(Cri) 595; Zahira Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158: 2004 SCC (Cri) 999; Mina Lalita Baruwa v.
State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218;
Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 :

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(2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC
741 : (2013) 4 SCC (Cri) 828]. In Natasha Singh v. CBI
[Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri)

.

828], though the application for examination of witnesses

was filed by the accused but, on the principles relating to
the exercise of powers under Section 311, this Court
observed, inter alia, as under : (Natasha Singh case [Natasha

Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828], SCC
pp. 746 & 748-49, paras 8 & 15)

of
‘8. Section 311CrPC empowers the court to summon a
material witness, or to examine a person present at
“any stage” of “any enquiry”, or “trial”, or “any
other proceedings” under CrPC, or to summon any
rt
person as a witness, or to recall and re-examine any
person who has already been examined if his

evidence appears to it, to be essential to the arrival of
a just decision of the case. Undoubtedly, CrPC has
conferred a very wide discretionary power upon the
court in this respect, but such a discretion is to be

exercised judiciously and not arbitrarily. The power
of the court in this context is very wide, and in the
exercise of the same, it may summon any person as a

witness at any stage of the trial or other proceedings.

The court is competent to exercise such power even
suo motu if no such application has been filed by
either of the parties. However, the court must satisfy

itself that it was in fact essential to examine such a
witness, or to recall him for further examination, in
order to arrive at a just decision of the case.

***

15. The scope and object of the provision is to enable the
court to determine the truth and to render a just decision
after discovering all relevant facts and obtaining proper
proof of such facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not capriciously
or arbitrarily, as any improper or capricious exercise of

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such power may lead to undesirable results. An application
under Section 311CrPC must not be allowed only to fill up a
lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional
evidence must not be received as a disguise for retrial or to

change the nature of the case against either of the parties.
Such a power must be exercised, provided that the evidence
that is likely to be tendered by a witness is germane to the

of
issue involved. An opportunity of rebuttal, however, must
be given to the other party. The power conferred under
Section 311CrPC must therefore be invoked by the court
rt
only in order to meet the ends of justice, for strong and
valid reasons, and the same must be exercised with great

caution and circumspection. The very use of words such as
“any court”, “at any stage”, “or any enquiry, trial or other
proceedings”, “any person” and “any such person” clearly
spells out that the provisions of this section have been

expressed in the widest possible terms, and do not limit the
discretion of the court in any way. There is thus no escape
if the fresh evidence to be obtained is essential to the just

decision of the case. The determinative factor should
therefore be whether the summoning/recalling of the said

witness is, in fact, essential to the just decision of the
case.” (emphasis in original)”

12. It was laid down by the Hon’ble Supreme Court in

Varsha Garg v. State of M.P., (2023) 19 SCC 646: 2022 SCC OnLine SC

986 that the Court has the jurisdiction under Section 311 Cr.P.C. to

summon any witness, recall or re-examine any person for the just

decision of the case. It was observed at page 659: –

31. Having clarified that the bar under Section 301 is
inapplicable and that the appellant is well placed to pursue

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this appeal, we now examine Section 311 of CrPC. Section
311 provides that the court “may”:

(i) Summon any person as a witness or to examine

.

any person in attendance, though not summoned as

a witness; and

(ii) Recall and re-examine any person who has
already been examined.

This power can be exercised at any stage of any inquiry,
trial or other proceeding under the CrPC. The latter part of

of
Section 311 states that the court “shall” summon and
examine or recall and re-examine any such person “if his
evidence appears to the court to be essential to the just
decision of the case”. Section 311 contains a power upon
rt
the court in broad terms. The statutory provision must be
read purposively to achieve the intent of the statute to aid

in the discovery of truth.

32. The first part of the statutory provision, which uses the
expression “may”, postulates that the power can be
exercised at any stage of an inquiry, trial or other

proceeding. The latter part of the provision mandates the
recall of a witness by the court as it uses the expression
“shall summon and examine or recall and re-examine any

such person if his evidence appears to it to be essential to

the just decision of the case”. Essentially, the evidence of
the person who is to be examined, coupled with the need
for a just decision of the case, constitutes the touchstone

that must guide the decision of the court. The first part of
the statutory provision is discretionary, while the latter
part is obligatory.

33. A Two-Judge Bench of this Court in Mohanlal Shamji
Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri)
595, while dealing with pari materia provisions of Section
540 of the Criminal Code of Procedure, 1898, observed:

(SCC p. 279, para 16)
“16. The second part of Section 540, as pointed out
albeit imposes upon the court an obligation of
summoning or recalling and re-examining any

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witness, and the only condition prescribed is that the
evidence sought to be obtained must be essential to
the just decision of the case. When any party to the

.

proceedings points out the desirability of some

evidence being taken, then the court has to exercise
its power under this provision — either discretionary
or mandatory — depending on the facts and

circumstances of each case, having in view that the
most paramount principle underlying this provision
is to discover or to obtain proper proof of relevant

of
facts in order to meet the requirements of justice.”

34. S. Ratnavel Pandian, J. speaking for the two-Judge
Bench, noted that the power is couched in the widest
possible terms and calls for no limitation, either with
rt
regard to the stage at which it can be exercised or the
manner of its exercise. It is only circumscribed by the

principle that the “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. In that context, the Court
observed: (Mohanlal Shamji Soni case [Mohanlal Shamji

Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri)
595], SCC p. 280, para 18)

“18. … 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

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not be received as a disguise for a retrial or to change
the nature of the case against either of the parties.”

35. Summing up the position as it obtained from various

.

decisions of this Court, namely, Rameshwar Dayal v. State of

U.P., (1978) 2 SCC 518: 1978 SCC (Cri) 311, State of W.B. v.
Tulsidas Mundhra, 1962 SCC OnLine SC 413: 1963 Supp (1)
SCR 1, Jamatraj Kewalji Govani v. State of Maharashtra, 1967

SCC OnLine SC 19 : (1967) 3 SCR 415: AIR 1968 SC 178, Masalti
v. State of U.P., 1964 SCC OnLine SC 30 : (1964) 8 SCR 133: AIR
1965 SC 202, Rajeswar Prasad Misra v. State of W.B., 1965 SCC

of
OnLine SC 122 : (1966) 1 SCR 178: AIR 1965 SC 1887 and Ratilal
Bhanji Mithani v. State of Maharashtra, (1971) 1 SCC 523: 1971
SCC (Cri) 231], the Court held : (Mohanlal Shamji Soni v.
Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595],
rt
SCC p. 283, para 27)
“27. 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.”

36. The power of the court is not constrained by the closure
of evidence. Therefore, it is amply clear from the above
discussion that the broad powers under Section 311 are to
be governed by the requirement of justice. The power must
be exercised wherever the court finds that any evidence is
essential for the just decision of the case. The statutory
provision goes to emphasise that the court is not a hapless
bystander in the derailment of justice. Quite to the
contrary, the court has a vital role to discharge in ensuring
that the cause of discovering truth as an aid in the
realisation of justice is manifest.

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13. It was further held that filling up the loopholes is a

subsidiary factor, and the Court should be concerned with the

.

essentiality of the evidence. It was observed at page 662: –

43. In the decision in Zahira Habibullah Sheikh (5) v. State of

Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8, which was
more recently reiterated in Godrej Pacific Tech. Ltd. v.

Computer Joint India Ltd., (2008) 11 SCC 108 : (2009) 2 SCC

of
(Cri) 455], the Court specifically dealt with this objection
and observed that the resultant filling of loopholes on
account of allowing an application under Section 311 is
merely a subsidiary factor and the court’s determination of
rt
the application should only be based on the test of the
essentiality of the evidence. It noted that: [Zahira

Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374:

(2006) 2 SCC (Cri) 8], SCC p. 393, para 28]

28. … The court is not empowered under the
provisions of the Code to compel either the

prosecution or the defence to examine any particular
witness or witnesses on their side. This must be left
to the parties. But in weighing the evidence, the

court can take note of the fact that the best available
evidence has not been given, and can draw an

adverse inference. The court will often have to
depend on intercepted allegations made by the

parties, or on an inconclusive inference from facts
elicited in the evidence. In such cases, the court has
to act under the second part of the section.

Sometimes, the examination of witnesses as directed by
the court may result in what is thought to be “filling of
loopholes”. That is purely a subsidiary factor and cannot
be taken into account. Whether the new evidence is
essential or not must, of course, depend on the facts
of each case, and has to be determined by the
Presiding Judge.” (emphasis supplied)

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44. The right of the accused to a fair trial is constitutionally
protected under Article 21. However, in Mina Lalita Baruwa
v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218,

.

while reiterating Rajendra Prasad v. Narcotic Cell, (1999) 6

SCC 110: 1999 SCC (Cri) 1062, the Court observed that it is
the duty of the criminal court to allow the prosecution to
correct an error in interest of justice. In Rajendra Prasad v.

Narcotic Cell, (1999) 6 SCC 110: 1999 SCC (Cri) 1062, the Court
had held that: (Rajendra Prasad case [Rajendra Prasad v.
Narcotic Cell, (1999) 6 SCC 110: 1999 SCC (Cri) 1062], SCC p.

of
113, para 8)
“8. 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
rt
should normally go to the accused in the trial of the
case, but an oversight in the management of the

prosecution cannot be treated as an 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, the
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.” (emphasis supplied)

45. In the present case, the importance of the decoding

registers was raised in the examination of PW 41.
Accordingly, the decoding registers merely being
additional documents required to be able to appreciate the
existing evidence in the form of the call details, which are
already on record but use codes to signify the location of
the accused, a crucial detail, which can be decoded only
through the decoding registers, the right of the accused to
a fair trial is not prejudiced. The production of the
decoding registers fits into the requirement of being
relevant material which was not brought on record due to
inadvertence.

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46. Finally, we also briefly deal with the objection of the
respondents regarding the stage at which the application
under Section 311 was filed. The respondents have placed

.

reliance on Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC

328 : (2019) 4 SCC (Cri) 839, a two-Judge Bench decision of
this Court, to argue that the application should not be
allowed as it has been made at a belated stage. The Court in

Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328: (2019) 4
SCC (Cri) 839 observed: (SCC p. 331, paras 11-12)
“11. It is well settled that the power conferred under

of
Section 311 should be invoked by the court only to
meet the ends of justice. The power is to be exercised
only for strong and valid reasons, and it should be
exercised with great caution and circumspection.
rt
The court has wide power under this Section to even
recall witnesses for re-examination or further

examination, necessary in the interest of justice, but
the same has to be exercised after taking into
consideration the facts and circumstances of each
case. The power under this provision shall not be

exercised if the court is of the view that the
application has been filed as an abuse of the process
of law.

12. Where the prosecution evidence has been closed

long back, and the reasons for non-examination of
the witness earlier are not satisfactory, the
summoning of the witness at a belated stage would

cause great prejudice to the accused and should not
be allowed. Similarly, the court should not encourage
the filing of successive applications for recall of a
witness under this provision.”

47. In the present appeal, the argument that the
application was filed after the closure of the evidence of the
prosecution is manifestly erroneous. As already noted
above, the closure of the evidence of the prosecution took
place after the application for the production of the
decoding register and for the summoning of the witness
under Section 311 was dismissed. Though the dismissal of

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the application and the closure of the prosecution evidence
both took place on 13-11-2021, the application by the
prosecution had been filed on 15-3-2021, nearly eight

.

months earlier. As a matter of fact, another witness for the

prosecution, Rajesh Kumar Singh, was also released after
examination and cross-examination on the same day as
recorded in the order dated 13-11-2021 of the trial court.

48. The court is vested with a broad and wholesome power,
in terms of Section 311 CrPC, to summon and examine or
recall and re-examine any material witness at any stage,

of
and the closing of prosecution evidence is not an absolute
bar. This Court in Zahira Habibulla H. Sheikh v. State of
Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999 while dealing
with the prayers for adducing additional evidence under
rt
Section 391CrPC at the appellate stage, along with a prayer
for examination of witnesses under Section 311CrPC

explained the role of the court, in the following terms: (SCC
pp. 188-89, para 43)
“43. The courts have to take a participatory role in a

trial. They are not expected to be tape recorders to
record whatever is being stated by the witnesses.
Section 311 of the Code and Section 165 of the

Evidence Act confer vast and wide powers on
presiding officers of the court to elicit all necessary

materials by playing an active role in the evidence-
collecting process. They have to monitor the
proceedings in aid of justice in a manner that

something, which is not relevant, is not unnecessarily
brought into the record. Even if the prosecutor is remiss
in some ways, it can control the proceedings effectively
so that the ultimate objective, i.e. truth, is arrived at.
This becomes more necessary where the court has
reasons to believe that the prosecuting agency or the
prosecutor is not acting in the requisite manner. The
court cannot afford to be wishful or pretend to be
blissfully ignorant or oblivious to such serious pitfalls or
dereliction of duty on the part of the prosecuting agency.
The prosecutor who does not act fairly and acts more

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like a counsel for the defence is a liability to the fair
judicial system, and courts cannot also play into the
hands of such a prosecuting agency, showing

.

indifference or adopting an attitude of total

aloofness.” (emphasis supplied)

49. Further, in Zahira Habibullah Sheikh (5) v. State of
Gujarat, (2006) 3 SCC 374: (2006) 2 SCC (Cri) 8, the Court

reiterated the extent of powers under Section 311 and held
that: (SCC p. 392, para 27)
“27. The object underlying Section 311 of the Code is

of
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
rt
statements of the witnesses examined from either
side. The determinative factor is whether it is essential
to the just decision of the case. The section is not

limited only for the benefit of the accused, and it will
not be an improper exercise of the powers of the
court to summon a witness under the section merely

because the evidence supports the case of the
prosecution and not that of the accused. The section
is a general section which applies to all proceedings,

enquiries and trials under the Code and empowers
the Magistrate to issue a summons to any witness at

any stage of such proceedings, trial or enquiry. In
Section 311, the significant expression that occurs is at
any stage of any inquiry, trial or other proceeding under

this Code. It is, however, to be borne in mind that
whereas the section confers a very wide power on the
court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the wider
the power, the greater is the necessity for application
of judicial mind.” (emphasis supplied)

50. The Court while reiterating the principle enunciated in
Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC
271: 1991 SCC (Cri) 595 stressed upon the wide ambit of
Section 311 which allows the power to be exercised at any
stage and held that : (Zahira Habibulla H. Sheikh v. State of

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2026:HHC:6749

Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999], SCC p. 189,
para 44)
“44. The power of the court under Section 165 of the

.

Evidence Act is, in a way, complementary to its

power under Section 311 of the Code. The section
consists of two parts, i.e., (i) giving a discretion to
the court to examine the witness at any stage, and

(ii) the mandatory portion which compels the court
to examine a witness if his evidence appears to be
essential to the just decision of the court. Though the

of
discretion given to the court is very wide, the very
width requires a corresponding caution. In Mohanlal
Shamji Soni v. Union of India, 1991 Supp (1) SCC 271:

1991 SCC (Cri) 595 this Court has observed, while
rt
considering the scope and ambit of Section 311, that
the very usage of the words such as, “any court”, “at

any stage”, or “any enquiry or trial or other
proceedings”, “any person” and “any such person”

clearly spells out that the section has expressed in
the widest-possible terms and do not limit the

discretion of the court in any way. However, as noted
above, the very width requires a corresponding
caution that the discretionary powers should be

invoked as the exigencies of justice require and
exercised judicially with circumspection and

consistently with the provisions of the Code. The
second part of the section does not allow any discretion

but obligates and binds the court to take necessary steps
if the fresh evidence to be obtained is essential to the just
decision of the case, “essential” to an active and alert
mind and not to one which is bent to abandon or
abdicate. The object of the section is to enable the court
to arrive at the truth irrespective of the fact that the
prosecution or the defence has failed to produce some
evidence which is necessary for a just and proper
disposal of the case. The power is exercised, and the
evidence is examined, neither to help the
prosecution nor the defence, if the court feels that

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there is a necessity to act in terms of Section 311, but
only to subserve the cause of justice and public
interest. It is done with an object of getting the

.

evidence in aid of a just decision and to uphold the

truth.” (emphasis supplied)

51. While reiterating the decisions of this Court in Karnel
Singh v. State of M.P., (1995) 5 SCC 518: 1995 SCC (Cri) 977,

Paras Yadav v. State of Bihar, (1999) 2 SCC 126: 1999 SCC
(Cri) 104, Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC
517: 1998 SCC (Cri) 1085 and Amar Singh v. Balwinder Singh,

of
(2003) 2 SCC 518: 2003 SCC (Cri) 641 this Court held that the
court may interfere even at the stage of appeal : (Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158:

2004 SCC (Cri) 999], SCC p. 196, para 64)
rt
“64. It is no doubt true that the accused persons have
been acquitted by the trial court and the acquittal has

been upheld, but if the acquittal is unmerited and
based on tainted evidence, tailored investigation,
unprincipled prosecutor and perfunctory trial and

evidence of threatened/terrorised witnesses, it is no
acquittal in the eye of the law and no sanctity or
credibility can be attached and given to the so-called

findings. It seems to be nothing but a travesty of
truth, fraud on the legal process and the resultant

decisions of courts — coram non judis and non est.
There is, therefore, every justification to call for
interference in these appeals.”

14. A similar view was taken in K.P. Tamilmaran Vs. State

and others 2025 INSC 576 wherein it was observed: –

47. Before moving further, we consider it necessary to deal
with the law relating to section 311 CrPC under which PW-
49 was summoned as a witness. Section 311 CrPC reads as
follows:

“311. Power to summon a material witness or examine
a person present.– Any Court may, at any stage of any

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inquiry, trial or other proceeding under this Code,
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; and the Court shall summon and examine or
recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the

case.”

This Section 311 of the CrPC provides wide powers to a
Criminal Court, to do the following:

of
I. Summon any person as a witness, or
ii. Examine any person present in court, though not
rtsummoned as a witness, or
iii. Recall and re-examine any person already examined.

The above powers can be exercised ‘at any stage of any
inquiry, trial or other proceeding’ under the CrPC. The
provision can be divided into two parts. The word ‘may’ is
used in the first part of the section, which grants the Court

the discretion to summon a witness. In contrast, the
second part of the Section uses the word ‘shall’, which
casts a duty on the Court to summon and examine or recall

or re-examine any such person as a witness when it
appears to the Court that it is essential to do so for a just

decision in the case. In other words, the second part is
mandatory, and Courts are obligated to exercise their
powers under Section 311 CrPC when the evidence of any

person is essential for a just decision of the case. (See:
Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC
OnLine SC 19)

48. As is clear from the language of the provision itself,
there is a wide discretion with the Courts under Section 311
CrPC. These powers can be exercised suo motu or on an
application moved by either side. After all, the object is that
the Court must not be deprived of the benefit of any
valuable evidence. It is absolutely necessary that the Court
must be apprised of the best evidence available. Thus,
Courts have been given wide powers to decide on their own

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if a witness is required to be called or recalled for
examination or re-examination. This power under Section
311 CrPC can be invoked at any stage of the trial, even after

.

the closing of the evidence. Section 311 CrPC can also be

read along with Section 165 of the Evidence Act, as the
powers of the Court under Section 165 of the Evidence Act
are complementary to Section 311 of CrPC. As discussed

above, powers under Section 311 CrPC can either be
exercised on an application moved by either side to the
case or suo moto by the Court. In case a person is not listed

of
as a witness in the charge-sheet but later the prosecution
desires to bring that person as an additional prosecution
witness, then the prosecution can move an application to
bring this person as a prosecution witness. It is then for the
rt
Court to decide whether such a person is required as a
witness or not. If the Court finds that such a person should

have been examined as a prosecution witness and he/she
was omitted from the list of witnesses due to some
oversight, mistake or for any other reason, the Court may
allow the application and such a person can be examined as

a prosecution witness. Thereafter, the normal course of
examination-in-chief, cross-examination, etc., would
follow as per the procedure. On the other hand, when the

Court calls a person as a Court witness, there are some
restrictions regarding the cross-examination of such a

witness.

15. The reply filed before the learned Trial Court

mentioned that the accused had denied that he was a dealer of

M/s Sonalika International, or that he had opened an account at

State Bank of Patiala, Ghumarwin. The complaint was filed before

the learned Trial Court on the premise that the accused was a

dealer of M/s Sonalika International. He had taken a loan and

issued a cheque drawn on the State Bank of Patiala, Ghumarwin,

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to discharge his legal liability. Therefore, the Court was required

to determine whether the accused had an account with the State

.

Bank of Patiala, Ghumarwin, and whether he had issued a cheque

as a dealer of Sonalika tractors. Therefore, the documents sought

to be proved on record were relevant, and the learned Trial Court

had rightly allowed the application.

of

16. In Swapan Kumar Chatterjee (supra), the Hon’ble
rt
Supreme Court held that when the evidence was closed long back,

the exercise of discretion under Section 311 Cr.P.C. was not

justified. In the present case, the statement of the accused was

recorded on 02.09.2024. The matter was listed for defence

witnesses; therefore, it cannot be said that evidence had been

closed long ago. Further, the applicant was not a party in the

police challan, and it could have no knowledge of the material

collected by the parties; hence, the application could not have

been dismissed on the ground of delay, and the cited judgment

does not apply to the present case.

17. In view of the above, there is no infirmity in the order

passed by the learned Trial Court. Hence, the present application

fails and is hereby dismissed.

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18. The observations made hereinabove are regarding the

disposal of this petition and will have no bearing, whatsoever, on

.

the case’s merits.

(Rakesh Kainthla)

Judge
12th March, 2026
(Nikita)

of
rt

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