9.1.2026 vs Of on 23 February, 2026

Himachal Pradesh High Court

Reserved On: 9.1.2026 vs Of on 23 February, 2026

                                                                                     2026:HHC:3578


      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. MMO No. 37 of 2026




                                                                                   .
                                              Reserved on: 9.1.2026





                                              Date of Decision: 23.2.2026.





    Vijay Singh                                                             ...Petitioner
                                           Versus




                                                     of
    State of HP                                                              ...Respondent


    Coram
                           rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1                   Yes.

    For the Petitioner                :         Mr. Rajiv Jiwan, Senior Advocate,
                                                with M/s Yuyutsu Singh Thakur,


                                                Yug      Singhal   and   Annanya
                                                Sharma, Advocates.
    For the Respondent                :         Mr. Jitender Sharma, Additional




                                                Advocate General.





    Rakesh Kainthla, Judge

The petitioner has filed the present petition for

quashing of the order dated 7.11.2025, passed by learned

Additional Sessions Judge-1, Solan, H.P. (learned Trial Court),

vide which the application for recalling the witnesses Dr Sangeet

Dhillon (PW17) and Naseeb Singh Patial (PW41) was allowed.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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(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

petition are that the police have filed a charge sheet against the

accused for the commission of offences punishable under

Sections 302, 307, 353, and 201 of the Indian Penal Code (IPC) and

of
Section 25 of the Arms Act, 1959. The matter was listed for

arguments on 3.5.2025. The arguments were partly addressed on
rt
that day, and the matter was adjourned for further arguments,

when the prosecution filed an application under Section 311

Cr.P.C. for recalling Dr. Sangeet Dhillon (PW17) and Naseeb Singh

Patial (PW41), claiming that the bullet and the revolver could not

be shown to them due to the oversight. The application was

opposed by the accused but was allowed by the learned Trial Court

after holding that the evidence sought to be adduced was material

and necessary for arriving at a just decision of the case.

3. Being aggrieved by the order passed by the learned

Trial Court, the accused has filed the present petition asserting

that the learned Trial Court passed a cryptic and non-speaking

order. It was not explained how showing of the already exhibited

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bullets and revolver would be material in the adjudication of the

matter. The Court failed to analyse what specific evidence would

.

emerge from the re-examination of the witnesses, why the

evidence was indispensable, and how the justice would be

defeated without such re-examination. The jurisdiction under

Section 311 of Cr.P.C. is to be exercised judiciously and not

of
arbitrarily. The prosecution failed to explain the delay of 26

months from the examination of PW17 and 15 months from the
rt
examination of PW41. The application was an attempt to fill-up

the lacuna left by the prosecution. Allowing the application would

cause a grave prejudice to the accused and would deprive him of

his right to a speedy trial. The order violates the fair trial and

causes grave prejudice to the accused. No new circumstances

justifying the recall of the witnesses were specified. There is no

ambiguity in the evidence of the witnesses justifying their recall.

Hence, it was prayed that the present petition be allowed and the

order passed by the learned Trial Court be set-aside.

4. I have heard Mr Rajiv Jiwan, learned Senior Counsel,

assisted by M/s Yuyutsu Singh Thakur, Yug Singhal and Annanya

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

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Jitender Sharma, learned Additional Advocate General, for the

respondent-State.

.

5. Mr Rajiv Jiwan, learned Senior Counsel for the

petitioner/accused, submitted that the learned Trial Court erred

in allowing the application. No cogent reasons were assigned to

allow the application. The order is cryptic and mentions that the

of
examination of the witnesses is material; however, it was not

specified how the examination of the witnesses would help the
rt
Court in arriving at a just conclusion. The application was filed

belatedly. Hence, he prayed that the present application be

allowed and the order passed by the learned Trial Court be set-

aside.

6. Mr Jitender Sharma, learned Additional Advocate

General, for the respondent-State, submitted that Dr Sangeet

Dhillon conducted the post-mortem examination and Naseeb

Singh Patial examined the revolver in the laboratory. The revolver

and the bullets are required to be shown to them to ascertain the

truth in the present case. Hence, he prayed that the present

petition be dismissed.

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7. I have given considerable thought to the submissions

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

.

8. 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

of
either party in bringing the valuable evidence on record or leaving

ambiguity in the statements of witnesses examined from either
rt
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

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

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

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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

of
three ways, namely, (i) to summon any person
as a witness; or (ii) to examine any person in
attendance, though not summoned as a
rt 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 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.”

17. The aim of every court is to discover the truth.
Section 311 CrPC is one of many such provisions

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which strengthen the arms of a court in its effort to
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.”

9. It was held in State v. N. Seenivasagan, (2021) 14

SCC 1: 2021 SCC OnLine SC 212, that the true test under

of
Section 311 is whether the evidence of the person who is

sought to be examined or recalled is essential to the just
rt
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-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 for an inordinate amount of time

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(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 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.

of
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
rt
(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 :

(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],

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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)

‘8. Section 311CrPC empowers the court to
summon a material witness, or to examine

of
a person present at “any stage” of “any
enquiry”, or “trial”, or “any other
proceedings” under CrPC, or to summon
rt any 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

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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 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.

of
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
rt
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 311CrPC 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 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)”

10. 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

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

of

(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
rt
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
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
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.

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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
witness, and the only condition prescribed is that the
evidence sought to be obtained must be essential to

of
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
rt
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
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
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

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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.”

35. Summing up the position as it obtained from various

of
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
rt
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
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],
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

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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.

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

subsidiary factor, and the Court should be concerned with the

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

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

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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)

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

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

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

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

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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.

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

of
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
rt
SCC (Cri) 839 observed: (SCC p. 331, paras 11-12)
“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
exercised with great caution and circumspection.

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.”

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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

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

of
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.

rt

48. The court is vested with a broad and wholesome power,
in terms of Section 311CrPC, to summon and examine or

recall and re-examine any material witness at any stage,
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
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

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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
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

of
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
rt
that: (SCC p. 392, para 27)
“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

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)

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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
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

of
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
rt
essential to the just decision of the court. Though the
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
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

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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

.

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

of
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,
rt
(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)
“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.”

12. 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-

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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

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

of
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:

rt
I. Summon any person as a witness, or

ii. Examine any person present in court, though not
summoned 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

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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

.

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

of
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
rt
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
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.

13. Dr Sangeet Dhillon conducted the post-mortem

examination of the deceased; therefore, it is essential to ascertain

her opinion whether the injuries noticed by her could have been

caused by means of the bullet and the revolver produced by the

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

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Kartarey v. State of U.P., (1976) 1 SCC 172 that it the duty of the

prosecution as well as the Court that the weapon of offence is

.

shown to the Medical Officer to ascertain his opinion whether the

injury noticed by him could have been caused by means of

weapon of offence alleged by the prosecution. It was observed:-

“26. We take this opportunity of emphasising the

of
importance of eliciting the opinion of the medical witness,
who had examined the injuries of the victim, more
specifically on this point, for the proper administration of
rt
justice, particularly in a case where injuries found are
forensically of the same species, e.g. stab wounds, and the
problem before the Court is whether all or any of those

injuries could be caused with one or more than one
weapon. It is the duty of the prosecution, and no less of the
Court, to see that the alleged weapon of the offence, if

available, is shown to the medical witness and his opinion
invited as to whether all or any of the injuries on the victim
could be caused with that weapon. Failure to do so may,

sometimes, cause aberration in the course of justice…”

14. This judgment was followed by the Hon’ble Supreme

Court in Narendrasinh Keshubhai Zala v. State of Gujarat, (2023) 18

SCC 783, wherein it was observed:-

19. This Court has consistently held in a catena of
judgments that it is the duty of the prosecution to establish
the use of the weapon discovered in the commission of the
crime. Failure to do so may cause an aberration in the
course of justice. (Kartarey v. State of U.P. [Kartarey v. State
of U.P., (1976) 1 SCC 172: 1975 SCC (Cri) 803]; Ishwar Singh v.

State of U.P. [Ishwar Singh v. State of U.P., (1976) 4 SCC 355:

1976 SCC (Cri) 629]; Ramjibhai Narasangbhai v. State of
Gujarat [Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1

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SCC 184: 2004 SCC (Cri) 269] and Amar Singh case [Amar
Singh v. State (NCT of Delhi), (2020) 19 SCC 165 : (2021) 3 SCC
(Cri) 784] )

.

15. Therefore, in view of the binding precedent of the

Hon’ble Supreme Court, it is essential to show the weapon of

offence to the Medical Officer, and the learned Trial Court cannot

be faulted for recalling the witnesses for showing the weapon of

of
offence to her.

16. Naseeb Singh Patial, Deputy Director, examined the
rt
revolver and the bullets. He test-fired the revolver and issued his

report. He is an expert, and showing the revolver to him is

essential to ascertain whether the revolver produced on record

was the same one that was test-fired by him or not. Thus, the

findings recorded by the learned Trial Court that the recalling of

witnesses is essential to arrive at the truth cannot be faulted.

17. It was submitted that the revolver and the cartridge

were exhibited in the statement of Vikram Singh (PW10) on

26.10.2021, and the learned Prosecutor was at fault in not

showing the document to the witnesses who were examined

subsequently. The application is an attempt to fill-up the lacuna

left by the prosecution caused by the fault of the learned

Prosecutor. This submission will not help the petitioner. It was

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laid down by the Hon’ble Supreme Court in Rajender Prasad vs.

Narcotic Cell 1999(6) SCC 110 that the Court should be liberal in

.

allowing the application under Section 311 of Cr.P.C. Such

applications are often opposed on the grounds that allowing the

application would amount to filling the lacunae. The lacunae do

not mean the fault committed by the prosecuting counsel. It was

of
observed:

6. It is a common experience in criminal Courts that
rt
defence counsel would raise objections whenever Courts
exercise powers under Section 311 of the Code or under

Section 165 of the Evidence Act by saying that the Court
could not ‘fill the lacuna in the prosecution case.’ A lacuna
in 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 laches or mistakes during the conducting of a case
cannot be understood as a lacuna which a Court cannot fill
up.

7. A lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution’s case. The advantage of it 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 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 the administration of

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criminal justice and not to count errors committed by the
parties or to find out and declare who among the parties
performed better.

.

18. Similarly, it was held in Zahira H Sheikh vs. State of

Gujarat 2006(3) SCC 374 that when the examination of the witness

is necessary, it cannot be declined on the ground that the same

would amount to the filling of the loophole. It was observed:

of

27. The object underlying Section 311 of the Code is that
there may not be a failure of justice on account of the
mistake of either party in bringing the valuable evidence
rt
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 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 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 inquiry or trial or

other proceedings 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 the 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

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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

of
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
rt
directed by the Court, may result in what is thought to be
the “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 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 the 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 Jagat Rai v.
State of Maharashtra (AIR 1968 SC 178).

19. In the present case, the fault of the learned Public

Prosecutor in not showing the material objects to the witnesses

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during their examination will not amount to a lacuna as laid down

by the Hon’ble Supreme Court, and the application could not have

.

been rejected on the ground that the application was filed to fill

up the lacuna.

20. It was submitted that the application was filed when

the matter was partly heard, and the same was highly belated.

of
This submission will not help the petitioner. It was laid down by

Hon’ble Division Bench of this Court in Dharam Pal alias Ashu vs
rt
State of HP CrMMO no. 828 of 2024, decided on 29.05.2025, that the

application under Section 311 of CrPC can be filed at any stage,

even after the conclusion of the evidence. It was observed:

“8. Thus, from the aforesaid pronouncements by the
Hon’ble Supreme Court, it is clear that the power to receive

evidence in exercise of Section 311 of the Code could be
exercised even if evidence on both sides is closed. 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 a general section which applies to all
proceedings, enquiries and trials under the Code.”

21. It is trite to say that the jurisdiction vested in this

Court under Section 538 of BNSS is extraordinary and should be

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sparingly exercised. In the present case, no case is made out for

the exercise of the extraordinary jurisdiction.

.

22. In view of the above, the present petition fails, and it is

dismissed.

23. The observation made herein before shall remain

of
confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

                        rt                             (Rakesh Kainthla)
                                                           Judge

     23rd February, 2026
          (Chander)








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