Rakesh Kumar vs State Of Himachal Pradesh on 6 August, 2026

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    Himachal Pradesh High Court

    Rakesh Kumar vs State Of Himachal Pradesh on 6 August, 2026

    Author: Sandeep Sharma

    Bench: Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

    Cr.MMO No.845 of2026
    Date of Decision: 06.08.2026
    _______________________________________________________
    Rakesh Kumar …….Petitioners
    Versus

    SPONSORED

    State of Himachal Pradesh … Respondent
    _______________________________________________________
    Coram:

    Hon’ble Mr. Justice Sandeep Sharma, Judge.

    Whether approved for reporting? 1
    
    For the Petitioners :             Mr. Arjun Lal, Mr. Sohil Kumar, Mr. Vidur
                                      Kapoor    and   Ms.     Tamanna    Basoli,
                                      Advocates.
    

    For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar,
    Additional Advocate Generals with Mr. Ravi
    Chauhan & Mr. Anish Banshtu, Deputy
    Advocates General
    _______________________________________________________
    Sandeep Sharma, Judge(oral):

    Being aggrieved and dissatisfied with order dated

    14.07.2026 passed by learned Additional Sessions Judge, Kullu,

    District Kullu, Himachal Pradesh, in Cr.MP. No. 263 of 2026 in

    Sessions Trial No. 99 of 2021(CIS R No.26/2021), whereby an

    application filed under Section 348 Bharatiya Nagarik Suraksha

    Sanhita (earlier Section 311 Cr.P.C.) praying therein to re-

    examine/recall one of the witness for cross-examination came to be

    rejected, petitioner has approached this Court under Section 528

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    Whether the reporters of the local papers may be allowed to see the judgment?
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    Bharatiya Nagarik Suraksha Sanhita for setting aside the aforesaid

    order and grant one opportunity to cross-examine PW-17.

    2. Mr. Ravi Chauhan, learned Deputy Advocate General,

    has put in appearance on behalf of the respondent-State. He fairly

    states that no reply is required to be filed, rather case at hand can be

    decided on the basis of the pleadings as well as documents adduced

    on record.

    3. Precisely, the facts of the case, as emerge from the

    pleadings as well as other material adduced on record by the

    respective parties, are that petitioner herein, who is facing trial under

    Section 302 IPC, filed an application under Section 348 BNSS,

    praying therein to re-examine Sh. Prem Thakur, DPRO Kullu, Tehsil

    and District Kullu, who was examined as PW-17 during trial. In the

    aforesaid application, petitioner-accused averred that though Sh.

    Prem Thakur, DPRO was examined by the prosecution as PW-17, but

    during his cross-examination, certain essential and material questions

    regarding arrival of ambulance could not be put to him. It also came to

    be averred in the application that re-examination and further cross-

    examination of aforesaid witness is very essential for just decision of

    the case.

    4. Aforesaid prayer made on behalf of the petitioner-

    accused came to be resisted by the respondent-State by filing reply

    on the ground that ample opportunities were provided to the
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    petitioner-accused to cross-examine the witness and as such, at this

    belated stage, when the matter is listed for final arguments, prayer

    made through the application at hand cannot be allowed. It also came

    to be submitted at the behest of the respondent-State that story

    regarding lack of communication between accused and his counsel is

    concocted and there are no legal and valid grounds to permit re-

    examination of the witness, rather same is a clear-cut attempt on

    behalf of the petitioner-accused to delay the trial.

    5. Learned trial Court, on the basis of pleadings as well as

    other material adduced on record, dismissed the application primarily

    on the ground that it has been filed at a very belated stage.

    6. Precisely, the grouse of the petitioner, as has been

    highlighted in the petition and further canvassed by Mr. Arjun Lall,

    learned counsel for the petitioner, is that impugned order is not based

    upon proper appreciation of the provision contained under Section

    348 BNSS as well as averments contained in the application. Learned

    counsel representing the petitioner-accused states that Court below,

    merely after recording the averments and submissions made at the

    behest of both the parties, proceeded to decide the application on the

    ground of inordinate delay. There is no attempt, if any, at the behest

    of Court below to find out whether re-examination of PW-17 is

    essential for just decision of the case or not. Lastly, learned counsel

    representing the petitioner states that otherwise also, by now it is well
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    settled that accused should be provided opportunity till the end of trial

    to prove his innocence. He states that since petitioner-accused, by

    way of re-examining PW-17, wants to prove his innocence, there was

    no occasion, if any, for the Court below to dismiss the application,

    rather it ought to have allowed the same, because in that situation, no

    prejudice would be caused to the prosecution.

    7. In support of his aforesaid submission, he placed reliance

    upon the judgment passed by this Court in Cr.MMO No. 209 of 2017,

    titled Sardar Singh v. State of Himachal Pradesh, wherein this

    Court, while placing reliance upon the various judgments passed by

    Hon’ble Apex Court, held that powers under Section 311 Cr.P.C. (now

    Section 348 BNSS) to summon any person as a witness, or examine

    any person already examined can be exercised at any stage,

    provided the same is required for just decision of the case and that is

    the object of a fair trial.

    8. To the contrary, Mr. Ravi Chauhan, learned Deputy

    Advocate General, while supporting the impugned order, submits that

    since despite ample opportunities, petitioner-accused failed to put

    relevant questions to PW-17 during his cross-examination, coupled

    with the fact that application for re-examination came to be filed at a

    belated stage, no illegality can be said to have been committed by

    Court below, while passing the impugned order. He submits that

    application under Section 348 BNSS came to be filed after recording
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    the statement of the petitioner-accused under Section 313 Cr.P.C.,

    and as such, there was no occasion, if any, for the Court below to

    consider the prayer made on behalf of the petitioner for re-

    examination of the witness.

    9. Having heard learned counsel for the parties and

    perused material available on record, this Court finds that person

    otherwise sought to be re-examined through application at hand was

    though cross-examined by petitioner-accused, but at that time, certain

    relevant questions regarding arrangement and arrival of the

    ambulance could not be put to him due to lack of communication

    between accused and his counsel. True it is that , at the time of cross-

    examination, accused was present, but since on account of his

    incarceration, he was unable to communicate with his lawyer prior to

    cross-examination of witness concerned, possibility of

    miscommunication or lack of coordination inter se him and his lawyer

    cannot be ruled out.

    10. Question, which was required to be decided by the Court,

    while deciding the application was “whether re-examination of PW-17

    is essential for just decision of the case or not”?.

    11. Admittedly, careful perusal of the order laid challenge in

    the instant proceedings nowhere suggests that attempt, if any, ever

    came to be made by the Court below to ascertain whether re-

    examination of PW-17 would be essential for just decision of the case,
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    rather, it simply, having taken note of the fact that application for re-

    examination came to be filed at a belated stage, proceeded to dismiss

    the same.

    12. No doubt, PW-17 stood cross-examined at an earlier

    occasion, but since at that time relevant question could not be put to

    him, as has been discussed hereinabove, petitioner had no option,

    but to file application under Section 348 BNSS for re-examination.

    Otherwise also, by now it is well-settled that accused should be

    provided full opportunity to prove his innocence. Bare reading of

    aforesaid provision of law, itself suggests that application for re-

    examination/re-calling of witness can be made at any stage of trial,

    meaning thereby, before passing of judgment, petitioner-accused can

    make an attempt to prove his innocence.

    13. At this stage, it would be apt to take note of provision

    contained under Section 348 BNSS, which reads as under:-

    348. Power to summon material witness, or examine person
    present.

    Any Court may, at any stage of any inquiry, trial or other proceeding
    under this Sanhita, summon any person as a witness, or examine
    any person in attendance, though not summoned as a witness, or
    re-call and re-examine any person already examined; and the Court
    shall summon and examine or re-call and re-examine any such
    person if his evidence appears to it to be essential to the just
    decision of the case.

    14. Bare perusal of aforesaid provision clearly suggests that

    Court may, at any stage, summon any person as a witness, or recall

    and re-examine any witness, provided that same is essentially

    required for just decision of the case.

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    15. Reliance in this regard is placed upon judgment passed

    by this Court in Sardar Singh (supra), wherein aforesaid aspect of

    the matter has been dealt with elaborately taking note of judgments

    passed by Hon’ble Apex Court from time to time. The relevant paras

    of the judgment are as under:-

    “10. Before ascertaining the merits of the submissions having
    been made by learned counsel representing the respective parties
    vis-à-vis impugned order passed by the learned trial Court, it
    would be profitable to take note of Section 311 Cr.P.C., which
    reads as under:-

    “311. Power to summon material witness, or examine
    person present:-. Any Court may, at any stage of any
    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 reexamine
    any such person if his evidence appears to it to be
    essential to the just decision of the case”

    Bare perusal of aforesaid provision suggests that the Court
    may, at any time, summon any person as a witness, or
    recall and re-examine any witness provided that same is
    essentially required for just decision of the case, and
    judgments passed by Hon’ble Apex Court in Mannan SK
    and others vs. State of West Bengal and another
    AIR 2014
    SC 2950, wherein the Hon’ble Court has held as under:-

    “10. The aim of every court is to discover truth. Section
    311
    of the Code is one of many such provisions of the
    Code which strengthen the arms of a court in its effort to
    ferret out the truth by procedure sanctioned by law. It is
    couched in very wide terms. It empowers the court at any
    stage of any inquiry, trial or other proceedings under the
    Code to summon any person as a witness or examine any
    person in attendance, though not summoned as witness or
    recall and re-examine already examined witness. The
    second part of the Section uses the word ‘shall’. It says that
    the court shall summon and examine or recall or re-
    examine any such person if his evidence appears to it to be
    essential to the just decision of the case. The words
    ‘essential to the just decision of the case’ are the key
    words. The court must form an opinion that for the just
    decision of the case recall or reexamination of the witness
    is necessary. Since the power is wide it’s exercise has to
    be done with circumspection. It is trite that wider the power
    greater is the responsibility on the courts which exercise it.
    The exercise of this power cannot be untrammeled and
    arbitrary but must be only guided by the object of arriving at
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    a just decision of the case. It should not cause prejudice to
    the accused. It should not permit the prosecution to fill-up
    the lacuna. Whether recall of a witness is for filling-up of a
    lacuna or it is for just decision of a case depends on facts
    and circumstances of each case. In all cases it is likely to
    be argued that the prosecution is trying to fill-up a lacuna
    because the line of demarcation is thin. It is for the court to
    consider all the circumstances and decide whether the
    prayer for recall is genuine.”

    11. Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of
    Bihar and another
    , (2013)14 SCC 461, has held that powers
    under Section 311 Cr.P.C. to summon any person or witness or
    examine any person already examined can be exercised at any
    stage provided the same is required for just decision of the case.
    It may be profitable to take note of the following paras of the
    judgment:-

    “14. A conspicuous reading of Section 311 Cr.P.C. would
    show that widest of the powers have been invested with the
    Courts when it comes to the question of summoning a
    witness or to recall or re-examine any witness already
    examined. A reading of the provision shows that the
    expression “any” has been used as a pre-fix to “court”,
    “inquiry”, “trial”, “other proceeding”, “person as a witness”,
    “person in attendance though not summoned as a witness”,
    and “person already examined”. By using the said
    expression “any” as a pre-fix to the various expressions
    mentioned above, it is ultimately stated that all that was
    required to be satisfied by the Court was only in relation to
    such evidence that appears to the Court to be essential for
    the just decision of the case. Section 138 of the Evidence
    Act, prescribed the order of examination of a witness in the
    Court. Order of re-examination is also prescribed calling for
    such a witness so desired for such re-examination.
    Therefore, a reading of Section 311 Cr.P.C. and Section
    138
    Evidence Act, insofar as it comes to the question of a
    criminal trial, the order of re-examination at the desire of
    any person under Section 138, will have to necessarily be
    in consonance with the prescription contained in Section
    311
    Cr.P.C. It is, therefore, imperative that the invocation of
    Section 311 Cr.P.C. and its application in a particular case
    can be ordered by the Court, only by bearing in mind the
    object and purport of the said provision, namely, for
    achieving a just decision of the case as noted by us earlier.
    The power vested under the said provision is made
    available to any Court at any stage in any inquiry or trial or
    other proceeding initiated under the Code for the purpose
    of summoning any person as a witness or for examining
    any person in attendance, even though not summoned as
    witness or to recall or re-examine any person already
    examined. Insofar as recalling and re-examination of any
    person already examined, the Court must necessarily
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    consider and ensure that such recall and re-examination of
    any person, appears in the view of the Court to be essential
    for the just decision of the case. Therefore, the paramount
    requirement is just decision and for that purpose the
    essentiality of a person to be recalled and re-examined has
    to be ascertained. To put it differently, while such a widest
    power is invested with the Court, it is needless to state that
    exercise of such power should be made judicially and also
    with extreme care and caution.

    15.In this context, we also wish to make a reference to certain
    decisions rendered by this Court on the interpretation of Section
    311
    Cr.P.C. where, this Court highlighted as to the basic principles
    which are to be borne in mind, while dealing with an application
    under Section 311 Cr.P.C.

    15.1 In the decision reported in Jamatraj Kewalji Govani vs. State
    of Maharashtra
    – AIR 1968 SC 178, this Court held as under in
    paragraph 14:-

    “14. It would appear that in our criminal jurisdiction, statutory law
    confers a power in absolute terms to be exercised at any stage of
    the trial to summon a witness or examine one present in court or to
    recall a witness already examined, and makes this the duty and
    obligation of the Court provided the just decision of the case
    demands it. In other words, where the court exercises the power
    under the second part, the inquiry cannot be whether the accused
    has brought anything suddenly or unexpectedly but whether the
    court is right in thinking that the new evidence is needed by it for a
    just decision of the case. 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.”

    (Emphasis added)
    15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of
    India and another
    – 1991 Suppl.(1) SCC 271, this Court again
    highlighted the importance of the power to be exercised under
    Section 311 Cr.P.C. as under in paragraph 10:-

    “10….In order to enable the court to find out the truth and
    render a just decision, the salutary provisions of Section
    540 of the Code (Section 311 of the new Code) are
    enacted whereunder any court by exercising its
    discretionary authority at any stage of enquiry, trial or other
    proceeding can summon any person as a witness or
    examine any person in attendance though not summoned
    as a witness or recall or re- examine any person in
    attendance though not summoned as a witness or recall
    and reexamine any person already examined who are
    expected to be able to throw light upon the matter in
    dispute; because if judgments happen to be rendered on
    inchoate, inconclusive and speculative presentation of
    facts, the ends of justice would be defeated.”

    10

    15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar –
    1999 (7) SCC 604, the proposition has been reiterated as under

    in paragraph 9:-

    “9. We may observe that the power of the court as
    envisaged in Section 311 of the Code of Criminal
    Procedure has not been curtailed by this Court. Neither in
    the decision of the five-Judge Bench in A.R. Antulay case
    nor in Kartar Singh case such power has been restricted for
    achieving speedy trial. In other words, even if the
    prosecution evidence is closed in compliance with the
    directions contained in the main judgment it is still open to
    the prosecution to invoke the powers of the court under
    Section 311 of the Code. We make it clear that if evidence
    of any witness appears to the court to be essential to the
    just decision of the case it is the duty of the court to
    summon and examine or recall and re-examine any such
    person.”
    (Emphasis added)
    15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh
    Mohansinh Chauhan
    – 2006 (7) SCC 529, the decision has been
    further elucidated as under in paragraph 15:-

    “15. A conspectus of authorities referred to above would
    show that the principle is well settled that the exercise of
    power under Section 311 CrPC should be resorted to only
    with the object of finding out the truth or obtaining proper
    proof of such facts which lead to a just and correct
    decision of the case, this being the primary duty of a
    criminal court. Calling a witness or re-examining a witness
    already examined for the purpose of finding out the truth
    in order to enable the court to arrive at a just decision of
    the case cannot be dubbed as “filling in a lacuna in the
    prosecution case” unless the facts and circumstances of
    the case make it apparent that the exercise of power by
    the court would result in causing serious prejudice to the
    accused resulting in miscarriage of justice.”
    (Emphasis
    supplied)
    15.5 In Iddar & Ors. vs. Aabida & Anr. – AIR 2007 SC 3029, the
    object underlying under Section 311 Cr.P.C., has been stated as
    under in paragraph 9:-

    “9…27. The object underlying Section 311 of the Code is 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 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
    11

    to summon a witness under the section merely because the
    evidence supports the case for 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 Magistrate to issue 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 inquiry or 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 added)
    15.6 In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,
    the scope of Section 311 Cr.P.C. has been highlighted by making
    reference to an earlier decision of this Court and also with
    particular reference to the case, which was dealt with in that
    decision in paragraphs 20 and 23, which are as under:-

    “20. Grant of fairest opportunity to the accused to prove
    his innocence was the object of every fair trial, observed
    this Court in Hoffman Andreas v. Inspector of Customs,
    Amritsar
    (2000) 10 SCC 430. The following passage is in
    this regard apposite:

    “6. …In such circumstances, if the new counsel thought to
    have the material witnesses further examined, the Court
    could adopt latitude and a liberal view in the interest of
    justice, particularly when the court has unbridled powers
    in the matter as enshrined in Section 311 of the Code.
    After all the trial is basically for the prisoners and courts
    should afford the opportunity to them in the fairest manner
    possible.”

    23. We are conscious of the fact that recall of the
    witnesses is being directed nearly four years after they
    were examined-in-chief about an incident that is nearly
    seven years old. Delay takes a heavy toll on the human
    memory apart from breeding cynicism about the efficacy
    of the judicial system to decide cases within a reasonably
    foreseeable time period. To that extent the apprehension
    expressed by Mr. Rawal, that the prosecution may suffer
    prejudice on account of a belated recall, may not be
    wholly without any basis. Having said that, we are of the
    opinion that on a parity of reasoning and looking to the
    consequences of denial of opportunity to cross-examine
    the witnesses, we would prefer to err in favour of the
    appellant getting an opportunity rather than protecting the
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    prosecution against a possible prejudice at his cost.
    Fairness of the trial is a virtue that is sacrosanct in our
    judicial system and no price is too heavy to protect that
    virtue. A possible prejudice to prosecution is not even a
    price, leave alone one that would justify denial of a fair
    opportunity to the accused to defend himself.” (Emphasis
    in original)
    15.7 In a recent decision of this Court in Sheikh Jumman vs.
    State of Maharashtra
    – (2012) 9 SCALE 18, the above referred to
    decisions were followed.

    16. Again in an unreported decision rendered by this Court dated
    08.05.2013 in Natasha Singh vs. CBI (State) – Criminal Appeal
    No.709
    of 2013, where one of us was a party, various other
    decisions of this Court were referred to and the position has been
    stated as under in paragraphs 15 and 16:

    “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
    such power may lead to undesirable results. An application
    under Section 311 Cr.P.C. 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 issue involved. An opportunity of rebuttal,
    however, must be given to the other party.

    The power conferred under Section 311 Cr.P.C. must, therefore,
    be invoked by the Court 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 ‘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.

    16. Fair trial is the main object of criminal procedure, and it is the
    duty of the court to ensure that such fairness is not hampered or
    threatened in any manner. Fair trial entails the interests of the
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    accused, the victim and of the society, and therefore, fair trial
    includes the grant of fair and proper opportunities to the person
    concerned, and the same must be ensured as this is a
    constitutional, as well as a human right. Thus, under no
    circumstances can a person’s right to fair trial be jeopardized.
    Adducing evidence in support of the defence is a valuable right.
    Denial of such right would amount to the denial of a fair trial. Thus,
    it is essential that the rules of procedure that have been designed
    to ensure justice are scrupulously followed, and the court must be
    zealous in ensuring that there is no breach of the same. (Vide
    Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr.
    , AIR
    1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of
    Gujarat & Ors.
    AIR 2004 SC 3114; Zahira Habibullah Sheikh &
    Anr. v. State of Gujarat & Ors.
    , AIR 2006 SC 1367; Kalyani Baskar
    (Mrs.) v. M.S. Sampoornam (Mrs.
    ) (2007) 2 SCC 258; Vijay Kumar
    v. State of U.P. & Anr.
    , (2011) 8 SCC 136; and Sudevanand v.
    State
    through C.B.I. (2012) 3 SCC 387.)”

    17. From a conspectus consideration of the above decisions, while
    dealing with an application under Section 311 Cr.P.C. read along
    with Section 138 of the Evidence Act, we feel the following
    principles will have to be borne in mind by the Courts:

    a) Whether the Court is right in thinking that the new
    evidence is needed by it? Whether the evidence sought to
    be led in under Section 311 is noted by the Court for a just
    decision of a case?

    b) The exercise of the widest discretionary power under
    Section 311 Cr.P.C. should ensure that the judgment
    should not be rendered on inchoate, inconclusive and
    speculative presentation of facts, as thereby the ends of
    justice would be defeated.

    c) If evidence of any witness appears to the Court to be
    essential to the just decision of the case, it is the power of
    the Court to summon and examine or recall and reexamine
    any such person.

    d) The exercise of power under Section 311 Cr.P.C.

    should be resorted to only with the object of finding out the
    truth or obtaining proper proof for such facts, which will
    lead to a just and correct decision of the case.

    e) The exercise of the said power cannot be dubbed as
    filling in a lacuna in a prosecution case, unless the facts
    and circumstances of the case make it apparent that the
    exercise of power by the Court would result in causing
    serious prejudice to the accused, resulting in miscarriage of
    justice.

    f) The wide discretionary power should be exercised
    judiciously and not arbitrarily.

    g) The Court must satisfy itself that it was in every respect
    essential to examine such a witness or to recall him for
    further examination in order to arrive at a just decision of
    the case.

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    h) The object of Section 311 Cr.P.C. simultaneously
    imposes a duty on the Court to determine the truth and to
    render a just decision.

    i) The Court arrives at the conclusion that additional
    evidence is necessary, not because it would be impossible
    to pronounce the judgment without it, but because there
    would be a failure of justice without such evidence being
    considered.

    j) Exigency of the situation, fair play and good sense should
    be the safe guard, while exercising the discretion. The
    Court should bear in mind that no party in a trial can be
    foreclosed from correcting errors and that 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.

    k) The Court should be conscious of the position that after
    all the trial is basically for the prisoners and the Court
    should afford an opportunity to them in the fairest manner
    possible. In that parity of reasoning, it would be safe to err
    in favour of the accused getting an opportunity rather than
    protecting the prosecution against possible prejudice at the
    cost of the accused. The Court should bear in mind that
    improper or capricious exercise of such a discretionary
    power, may lead to undesirable results.

    l) The additional evidence must not be received as a
    disguise or to change the nature of the case against any of
    the party.

    m) The power must be exercised keeping in mind that the
    evidence that is likely to be tendered, would be germane to
    the issue involved and also ensure that an opportunity of
    rebuttal is given to the other party.

    n) The power under Section 311 Cr.P.C. must therefore, be
    invoked by the Court only in order to meet the ends of
    justice for strong and valid reasons and the same must be
    exercised with care, caution and circumspection. The Court
    should bear in mind that fair trial entails the interest of the
    accused, the victim and the society and, therefore, the
    grant of fair and proper opportunities to the persons
    concerned, must be ensured being a constitutional goal, as
    well as a human right.”

    12. Hon’ble Apex Court in Zahira Habibullah Sheikh (5) and
    another vs. State of Gujarat and others
    (2006)3 SCC 374 has
    held as under:-

    “27. The object underlying Section 311 of the Code is 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 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
    15

    because the evidence supports the case for 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 Magistrate to
    issue 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 inquiry or 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.

    28. As indicated above, the Section is wholly discretionary.
    The second part of it imposes upon the Magistrate an
    obligation: it is, that the Court shall summon and examine
    all persons whose evidence appears to be essential to the
    just decision of the case. It is a cardinal rule in the law of
    evidence that the best available evidence should be
    brought before the Court. Sections 60, 64 and 91 of the
    Indian Evidence Act, 1872 (in short, ‘Evidence Act‘) are
    based on this rule. 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 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.

    29. The object of the Section 311 is to bring on record
    evidence not only from the point of view of the accused and
    the prosecution but also from the point of view of the
    orderly society. If a witness called by Court gives evidence
    against the complainant he should be allowed an
    opportunity to cross- examine. The right to cross-examine a
    witness who is called by a Court arises not under the
    provision of Section 311, but under the Evidence Act which
    gives a party the right to cross- examine a witness who is
    not his own witness. Since a witness summoned by the
    Court could not be termed a witness of any particular party,
    the Court should give the right of cross- examination to the
    complainant. These aspects were highlighted in Jamat Raj
    Kewalji Govani v. State of Maharashtra
    , (AIR 1968 SC

    178).

    16

    30. Right from the inception of the judicial system it has
    been accepted that discovery, vindication and
    establishment of truth are the main purposes underlying
    existence of Courts of justice. The operative principles for a
    fair trial permeate the common law in both civil and criminal
    contexts. Application of these principles involves a delicate
    judicial balancing of competing interests in a criminal trial,
    the interests of the accused and the public and to a great
    extent that of the victim have to be weighed not losing sight
    of the public interest involved in the prosecution of persons
    who commit offences.

    13. In the judgments referred above, the Hon’ble Apex Court has
    specifically observed that the words “essential to the just decision
    of the case” are key words and in this regard, the court must form
    an opinion that for the just decision of the case, whether it is
    necessary to recall or examine the witness or not.

    14. True it is that in the aforesaid judgments the Hon’ble Apex
    Court has also cautioned the courts below to be more careful and
    cautious while exercising power under Section 311 of the Cr.PC,
    but court can always summon, recall or reexamine any witness at
    any stage, provided his/her statement is necessary for proper
    adjudication of the case. It is well settled that wider the power
    greater is the responsibility on the courts which exercise it and
    exercise of such power cannot be untrammeled and arbitrary,
    rather, same must be only guided upon by the object of arriving
    at a just decision of the case”.

    16. Most importantly, Hon’ble Apex Court in various

    judgments, as has been taken note by this Court in Sardar Singh’s

    (supra), has held whether recall of witness is to fill up lacuna or it is

    for just decision of a case depends upon the given circumstances of

    each case. In the instant case, probably petitioner-accused, with a

    view to prove his innocence, intends to prove on record that after

    alleged incident, he called for an ambulance through DPRO, so that

    his wife, who is deceased, is taken to hospital. Prosecution in the

    case at hand has attempted to prove that after alleged incident,

    petitioner-accused attempted to dispose of body of the deceased by

    taking it in some private vehicle. Since counsel representing the

    petitioner at the relevant time was unable to put aforesaid suggestion,
    17

    which may otherwise be crucial to the case of the petitioner, he was

    well within his right to seek re-examination of PW-17, which can be

    said to be essential for the just decision of the case.

    17. Consequently, in view of the detailed discussion made

    hereinabove as well as law taken into consideration, this Court finds

    merit in the present petition and accordingly, same is allowed. The

    impugned order dated 14.07.2026 passed by learned Additional

    Sessions Judge, Kullu, District Kullu, Himachal Pradesh, in Cr.MP.

    No. 263 of 2026 in Sessions Trial No. 99 of 2021(CIS R No.26/2021),

    is set aside.

    18. Since learned Court below has already fixed the matter

    on 20.08.2026, this Court directs the petitioner, through his counsel,

    to apprise learned Court below with regard to passing of the instant

    order, enabling it to fix a date for cross-examination of PW-17, to

    whom notice may also be sent for the given date. Needless to say, in

    the event of default, if any, at the behest of the petitioner to re-

    examine the witness on the date fixed by Court below, no further

    opportunity shall be provided and thereafter Court below shall

    proceed to decide the matter accordingly. Pending applications, if

    any, also stand disposed of.

    2.

    (Sandeep Sharma),
    Judge
    August 06, 2026
    (shankar)



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