Narayan Lal Rebari vs State Of Rajasthan on 1 April, 2026

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    Rajasthan High Court – Jodhpur

    Narayan Lal Rebari vs State Of Rajasthan on 1 April, 2026

    [2026:RJ-JD:14230]
    
          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
    
    
    
                    S.B. Criminal Misc(Pet.) No. 1501/2026
    
    1.       Narayan Lal Rebari S/o Shri Thana Ji Rebari, Aged About
             42 Years, Resident Of Jagat, Kurabad, District Udaipur,
             Rajasthan.
    
    2.       Dulhe Singh S/o Shri Padam Singh, Aged About 45 Years,
             Resident Of Vasu, Kurabad, District Udaipur, Rajasthan.
    
    3.       Devi Singh S/o Shri Nathu, Aged About 39 Years,
             Residentadwas, Jawar Mines, District Udaipur, Rajasthan.
    
                                                                      ----Petitioners
                                        Versus
    
    State Of Rajasthan, Through The Public Prosecutor.
    
                                                                     ----Respondent
    
    
    For Petitioner(s)         :     Mr. Hardik Vyas
    For Respondent(s)         :     Mr. Ramesh Dewasi, PP
    
    
    
          HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU

    Judgment

    1. Date of conclusion of arguments: 06.03.2026

    SPONSORED

    2. Date on which judgment was reserved: 06.03.2026

    3. Whether the full judgment or only Full
    the operative part is pronounced:

    4. Date of pronouncement: 01.04.2026

    1. The present criminal misc. petition has been filed under

    Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old

    Section 482 of Cr.P.C.) seeking quashing of the order dated

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    15.01.2026 passed by the learned District & Sessions Judge,

    Salumber in Session Case No. 24/2025 (CIS No. 10/2022) titled

    as State of Rajasthan vs. Narayanlal & Ors., whereby the

    application preferred by the petitioners, who are accused in the

    trial, under Section 311 of Cr.P.C. (now Section 348 of BNSS) for

    summoning and examining the material witness Dr. Sanjay Shah

    has been rejected.

    2. Learned counsel for the petitioners submits that the

    complainant Bhagwati Lal Suthar lodged an FIR No.243/2020

    dated 10.09.2020 alleging commission of offence under Sections

    279, 336, 384, 307 and 323 Indian Penal Code, 1860. It is alleged

    that on 09.09.2020 a collision took place between the vehicle of

    the complainant with another vehicle bearing registration No. RJ-

    27-CE-2447, whereafter an altercation ensued and the

    complainant along with one Vinod Kumar Jain sustained injuries.

    3. During investigation, injury reports of the injured persons

    were prepared and medical opinion regarding the nature of

    injuries was obtained and after completion of investigation, the

    police has submitted a charge-sheet against the petitioners for

    offences under Sections 279, 323, 308, 325, 365, 387 and 34 IPC.

    4. The prosecution has cited 21 witnesses in support of its case

    and the trial has progressed substantially. Out of the said

    witnesses, PW-1 to PW-18 have already been examined and only

    the last prosecution witness, namely the Investigating Officer,

    Hanwant Singh Sodha, remains to be examined.

    5. During the course of trial, the first Investigating Officer

    Kishor Singh (PW-16) admitted in his cross-examination that the

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    Medical Report (Ex.D-1) was prepared on the basis of request

    letter (Ex.P-23) sent by him to the concerned doctor. He further

    submits that the opinion regarding injuries as per (Ex.15) and

    (Ex.D-2) can only be given by the doctor. `

    6. Learned counsel for the petitioner submits that the aforesaid

    medical report and opinion were prepared by Dr. Sanjay Shah,

    who had medically examined the injured, Vinod Kumar Jain.

    However, the said doctor was neither cited as a prosecution

    witness nor examined during trial.

    7. Consequently, the petitioners moved an application dated

    08.12.2025 under Section 311 Cr.P.C. seeking summoning of Dr.

    Sanjay Shah as a witness. It was alleged that in the report of the

    Doctor, it has been stated that the death of the deceased was

    caused by a stroke and not by way of any assault. There was no

    injury on the vital part of the deceased and hence no offence

    under Section 308 IPC was made out. It was submitted that the

    Investigating Officer in his statement has stated that opinion

    regarding the injury on the basis of medical reports can only be

    given by the doctor.

    8. It is contended on behalf of counsel for the petitioner that

    the evidence of the said doctor is essential for proper appreciation

    of the medical evidence and for arriving at a just decision of the

    case. It is further submitted that denial of opportunity to summon

    such a material witness would seriously prejudice case of the

    accused/petitioner. However, the learned trial court rejected the

    application vide order dated 15.01.2026 mainly on the ground that

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    it is the prerogative of the prosecution to decide which witnesses

    are to be examined.

    9. It is vehemently argued by learned counsel for the petitioner

    that the said reasoning is contrary to the settled principles

    governing the exercise of powers under Section 311 Cr.P.C. In

    order to buttress his submissions, reliance is placed upon the

    judgments passed by the Hon’ble Supreme Court in the case of

    Rajaram Prasad Yadav vs. State of Bihar, (2013) 14 SCC

    461; Varsha Garg vs. State of Madhya Pradesh & Ors., 2022

    SCC OnLine SC 986; and K.P. Tamilmaran v. State, 2025 SCC

    OnLine SC 958, to contend that the powers under Section 311

    Cr.P.C., are of wide amplitude and that the Court is duty-bound to

    summon or recall a witness if his evidence appears to be essential

    for arriving at a just decision of the case.

    10. Per contra, the learned Public Prosecutor opposed the instant

    petition and supported the impugned order.

    11. I have considered the submissions made at the Bar and have

    perused the material available on record.

    12. Before adverting to the merits of the case, it would be

    apposite for this Court to reproduce the relevant statutory

    provision, 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 re-examine any such person if his
    evidence appears to it to be essential to the just decision of
    the case.”

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    13. A plain reading of the aforesaid provision makes it

    abundantly clear that very wide powers have been conferred upon

    the Court to summon any person as a witness, or to recall and re-

    examine any witness already examined. The second part of the

    Section in fact mandates the summoning of a witness by the court

    if the court is of the opinion that such evidence is essential for the

    just decision of the case.

    14. The Hon’ble Supreme Court in the case of Rajaram Prasad

    Yadav (supra) has categorically laid down the

    principles/guidelines for exercising the powers under Section 311

    CrPC by the Courts. The principles laid down are as under :-

    “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 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 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

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    recall him for further examination in order to arrive at
    a just decision of the case.

    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”

    15. Similarly, in the case of Varsha Garg (supra), the Hon’ble

    Supreme Court has held that the criminal court possesses ample

    power to summon or recall witnesses even after closure of

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    evidence if such evidence appears essential for the just decision of

    the case. The Apex Court observed as under :-

    “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” :

    (i) Summon any person as a witness or to
    examine any person in attendance, though not
    summoned as a witness; and

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

    This power can be exercised at any stage of any
    inquiry, trial or other proceeding under the CrPC.
    The latter part of 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”. Essentiality of the evidence
    of the person who is to be examined coupled with the
    need for the just decision of the case constitute the
    touchstone which must guide the decision of the court.
    The first part of the statutory provision is discretionary
    while the latter part is obligatory.

    35. Summing up the position as it obtained from various
    decisions of this d Court, namely, Rameshwar Dayal v.
    State of U.P.15
    , State of W.B. v. Tulsidas Mundhrals,
    Jamatraj Kewalji Govani v. State of Maharashtra, Masalti v.
    State of U.P.18
    , Rajeswar Prasad Misra v. State of W.B.19
    and Ratilal Bhanji Mithani v. State of Maharashtra 20, the
    Court held: (Mohanlal Shamji Soni case13, 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

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    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
    the case.

    36. The power of the court is not constrained by
    the closure of evidence. Therefore, it is amply
    clear from the above discussion that the broad
    powers under Section 311 are to be governed by
    the requirement of justice. The power must be
    exercised wherever the court finds that any
    evidence is essential for the just decision of the
    case. The statutory provision goes to emphasize
    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.”

    16. Recently, the Hon’ble Supreme Court in the case of K.P.

    Tamilmaran (supra) has reiterated that the power under Section

    311 Cr.P.C. is couched in the widest terms and may be exercised

    at any stage of the trial so that the Court is not deprived of

    valuable evidence necessary for the just adjudication of the case.

    The Hon’ble Apex court observes as under :-

    “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 moto or on an application moved by
    either side. After all, the object is that the Court
    must not be deprived of the benefit of any valuable
    evidence. It is absolutely necessary that the Court
    must be apprised of the best evidence available.
    Thus, Courts have been given wide powers to decide
    on their own if a witness is required to be called or
    recalled for examination or re-examination. This
    power under Section 311 CrPC can be invoked at any
    stage of the trial, even after the closing of the
    evidence. Section 311 CrPC can also be read along
    with Section 165 of the Evidence Act, as the powers
    of the Court under Section 165 of the Evidence Act
    are complementary to Section 311 of CrPC. As
    discussed above, powers under Section 311 CrPC
    can either be exercised on an application moved by
    either side to the case or suo moto by the Court. In
    case a person is not listed as a witness in the
    charge-sheet but later, the prosecution desires to
    bring that person as an additional prosecution

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    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 witness.

    49. In a case where neither party is interested in
    examining a person as a witness yet the Court feels
    that the evidence of such a person is necessary for a
    just decision, the Court though cannot compel
    either the prosecution or the defence to call a
    witness, but it can invoke its power under Section
    311
    CrPC, read with Section 165 of th Evidence Act
    and call such a person as a Court witness. Whether
    person is required to be examined as a witness for a
    just decision again a question which has to be
    decided by the Court on the basis the facts of that
    particular case. (See: Rama Paswan v. State
    Jharkhand
    , (2007) 11 SCC 191)”

    17. Considering the facts and circumstances of the present case

    in light of the law laid down by the Hon’ble Apex Court, it is found

    that the Investigating Officer, in his statements, has clearly stated

    that he has sent the requisition (Ex.P/25) to the Doctor and reply

    was received, which is (Ex.D/1). Further, it is stated that the

    documents (Ex.D/2) were also received by him, however, the

    opinion regarding the injuries as per (Ex.P/15) and (Ex.D/2)

    cannot be given by him and only Doctor can give the opinion.

    These documents have been prepared by Dr. Sanjay Shah during

    treatment. These documents are also on record and were received

    by the Investigating Officer during investigation and have also

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    been relied upon, but however, surprisingly the Doctor, who has

    prepared the documents, has not been produced as a witness.

    18. The accused-petitioners have clearly disputed the alleged

    injuries on the person of the deceased and contend that the

    reports do not establish that the stated injuries were the cause of

    death. Further, the Investigating Officer (PW-16), in his cross-

    examination, has categorically stated that an opinion on these

    reports can only be given by the doctor concerned.

    19. Therefore, the cause and nature of the injuries constitute a

    crucial aspect of the trial, and the examination of the doctor who

    prepared the medical report is undoubtedly essential to assist the

    Court in appreciating the evidence in its proper perspective and in

    arriving at a just decision of the case.

    20. Merely because the prosecution did not cite the said doctor

    as a witness cannot be a ground to deny the petitioners the

    opportunity to summon such a material expert witness, when his

    evidence appears to be relevant and necessary for the just

    decision of the case.

    21. Therefore, the reasoning assigned by the learned trial court

    that it is solely the prerogative of the prosecution to decide which

    witnesses are to be examined, overlooks the true scope and object

    of Section 311 Cr.P.C., which empowers the Court itself to

    summon any witness if his evidence appears necessary for the

    just adjudication of the case.

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    22. In view of the foregoing discussion, this Court is of the

    considered opinion that the examination of Dr. Sanjay Shah is

    essential for the just and proper adjudication of the case and

    would advance the cause of justice, and the impugned order dated

    15.01.2026 passed by the learned District & Sessions Judge,

    Salumber cannot be sustained.

    23. Accordingly, the present criminal miscellaneous petition is

    allowed and the order dated 15.01.2026 passed by the learned

    District & Sessions Judge, Salumber in Session Case No.24/2025

    (CIS No.10/2022) is hereby quashed and set aside. The

    application filed by the petitioners under Section 311

    Cr.P.C./Section 348 BNSS is allowed.

    24. The learned trial court shall summon Dr. Sanjay Shah as a

    witness and permit the parties to examine and cross-examine him

    in accordance with law, and thereafter proceed with the trial

    expeditiously.

    (BALJINDER SINGH SANDHU),J
    80-Sanjay/-

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