Karnataka High Court
Mrs. Roopa vs State Of Karnataka on 1 July, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 33247 OF 2025 (GM-RES)
BETWEEN:
MRS. ROOPA
WIFE OF LATE RAMACHANDRA
AGED ABOUT 42 YEARS
RESIDING AT CHAKKERE
VILLAGE, MALURU HOBLI
CHANNAPATNA TALUK,
RAMANAGARA, KARNATAKA - 562 159,
PRESENTLY AT BENGALURU.
...PETITIONER
(BY SRI. PONNANNA M.B, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed
by BY MADDUR POLICE STATION
PADMAVATHI B MADDUR, KARNATAKA - 571 428.
K
Location: High
Court of 2. LATE RAJU V.K.
Karnataka
DEAD, ABATED
SON OF KADEGOWDA
AGED ABOUT 57 YEARS
3. MRS. MAMATHA
WIFE OF MR. RAJU
AGED ABOUT 55 YEARS.
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4. MR. VIJAYKUMAR
SON OF MR. RAJU
AGED ABOUT 36 YEARS
5. MRS. CHIKKATHAYAMMA
WIFE OF LATE MALABORAIAH
AGED ABOUT 72 YEARS
6. MRS. SAVITHA
WIFE OF LATE JAYARAMU
AGED ABOUT 53 YEARS
7. MRS. SMITHA
WIFE OF MR. NANJUNDEGOWDA
AGED ABOUT 38 YEARS
ALL ARE RESIDING AT
VALEGEREHALLI VILLAGE
MADDUR TALUK, MANDYA
KARNATAKA - 571 428.
...RESPONDENTS
(BY SRI. K. NAGESHWARAPPA, HCGP FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA R/W SEC. 482 OF THE CR.P.C,
1973 PRAYING TO A. ISSUE A WRIT IN THE NATURE OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING OR SETTING ASIDE THE IMPUGNED
ORDER DATED 09.10.2025 IN ANNEXURE-A PASSED BY THE
HONBLE COURT OF I ADDL. DISTRICT AND SESSIONS COURT
AT MANDYA IN SC. 33/2021 ONLY INSOFAR AS THE ORDER OF
REJECTING THE PRAYER OF THE PROSECUTION TO ISSUE
WITNESS SUMMONS TO DR. YAMUNA RAJ, MIMS, MANDYA.
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THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before the Court seeking the following
prayers:
“A. Issue a WRIT in the nature of Certiorari or any
other appropriate Writ, Order or Direction quashing
or setting aside the impugned order dated
09.10.2025 in ‘ANNEXURE-A’ passed by the
Hon’ble Court of I Addl. District and Sessions Court
at Mandya in SC.33/2021 only insofar as the order
of rejecting the prayer of the prosecution to issue
witness summons to Dr. Yamuna Raj, MIMS,
Mandya.
B. Pass an Order or direction allowing the application
in ‘ANNEXURE – B’ filed by prosecution under
section 311 of Cr.P.C. in its entirety by issuing
witness summons to both the proposed witnesses
mentioned therein, in the interest of justice and fair
trial.
C. Pass such other order or orders and grant such
other relief or reliefs as this Hon’ble Court may
deem fit in the facts and circumstances of the case,
in the interest of justice and fair trial.”
2. Heard Sri. Ponnanna M.B., learned counsel
appearing for the petitioner and Sri. K. Nageshwarappa,
learned High Court Government Pleader appearing for
respondent No.1.
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3. The petitioner is the complainant, registers a
complaint which becomes a crime and the matter is now
pending before the concerned Court as SC.No.33/2021 for
several offences. The issue in the lis is not with regard to the
merit of the matter. The prosecution files an application under
Section 311 of Code of Criminal Procedure, 1973 (‘the Cr.P.C.’
for short) seeking recall of two witnesses for further
examination. While one is allowed, the other is rejected. It is
therefore, the petitioner/complainant is before the Court.
4. The concerned Court passes the following order.
REASONS
8. The learned Public Prosecutor contended that the
proposed witnesses are the material witnesses in the
case and those witnesses are essential for the just
decision of the case. Therefore, she prayed to allow the
said application.
9. Per contra, the learned counsel for the accused No.4
to 6 contended that the death of Abhilasha is not in
dispute. However, there is no valid reason to summon
the proposed witnesses in the case. The prosecution
made a bald application and there is no cogent reason to
summon the proposed witnesses. Hence, he prayed to
reject the application.
10. The charges framed against the accused for the
offences punishable U/Sec. 498-A and 306 R/w 34 of
IPC. To substantiate the charges, prosecution examined
PW1.to PW27 witnesses. At the stage of evidence of
PW27, the present application came to be filed to
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summon Dr.Yamuna Raj, who attended Abilasha soon
before her death and whose name appear in the
MLC/Accident register; and Dr. Aravind Barad, the
Scientific Officer who examined the death note of
Abilasha.
11. As per the prosecution version, the deceased
Abilasha brought to the MIMS hospital, Mandya at 4.30
p.m., on 03.07.2018 after consumption of the Tablets
and while she was shifting to a Hospital at Mysore,
deceased died and thereafter, dead body of deceased
Abhilasha brought to MIMS hospital, Mandya. The
proposed witness Dr.Yamuna Raj, Medical officer, MIMS
Hospital, Mandya issued the medico legal intimation to
the police. In the instant case, suicidal death of
deceased, consuming atenolol-anti hypertensive drug is
not in dispute. The cause for her suicidal death revealed
only after surface of death note of deceased, three
months after her death, while cleaning the house. Till
such time, the cause for the death of deceased alleged in
the case was not known. Further, it is not the case of
prosecution that the deceased gave any statement
implicating the accused, during her death bed. Under the
said circumstances, the evidence of Dr.Yamuna Raj, the
medical officer of MIMS hospital who issued the medico
legal intimation and provided medical assistance, when
deceased brought to the said hospital, is not essential to
decide the matter and her evidence is not material in the
case. Hence, there is no ground to summon Dr.Yamuna
Raj for her evidence.
12. As per the prosecution version, the deceased left
with death note which implicated the accused. The
prosecution subjected the said death note through
handwriting expert and such handwriting expert gave his
opinion with regard to the handwriting of death note
after submission of the chargesheet. According to
prosecution, Dr.Aravind Barad examined the death note
and gave the report. So, his evidence is necessary to
prove the examination and opinion of handwriting of
deceased Abilasha in the death note. Hence, I hold the
above point in the ‘Partly Affirmative’ and I proceed to
pass the following:
ORDER
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The application filed by the prosecution U/Sec. 311 of
Cr.P.C. dated 21.07.2025 is partly allowed.
Dr. Aravind Barad, Senior Scientific Officer Questioned
Documents Section, RFSL, Bengaluru-68 is summoned
for his evidence.
The prayer of prosecution to issue summons to Dr.
Yamuna Raj, MIMS, Mandya for her evidence, is rejected.
Issue summons to Dr. Aravind Barad, Senior Scientific
Officer, Questioned Documents Section, RFSL,
Bengaluru-68 for his evidence, r/by:23.10.2025.”
A perusal at the order would indicate its flaw. The flaw in
the order would be apparent on the perusal of the order itself,
as the concerned Court permits one witness to be permitted to
be recalled for further examination, while denies the other. The
other being imperative, the concerned Court ought to have
permitted both the witnesses in the light of the judgment of the
Apex Court in the Apex Court in the case of VARSHA GARG
Vs. STATE OF MADHYA PRADESH reported in 2022 SCC
OnLine SC 986, wherein it has held as follows:
“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
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(ii) Recall and re-examine any person who has
already been examined.
32. 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.
33. 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 reexamine 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.
34. A two judge Bench of this Court in Mohanlal
Shamji Soni (supra) while dealing with pari materia
provisions of Section 540 of the Criminal Code of
Procedure 1898 observed:
“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 the just decision of the case.
When any party to the proceedings points out the
desirability of some evidence being taken, then the
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court has to exercise its power under this provision
— either discretionary or mandatory — depending on
the facts and circumstances of each case, having in
view that the most paramount principle underlying
this provision is to discover or to obtain proper proof
of relevant facts in order to meet the requirements
of justice.”
35. Justice S Ratnavel Pandian, 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:
“18 …Therefore, it should be borne in mind
that the aid of the section should be invoked only
with the object of discovering relevant facts or
obtaining proper proof of such facts for a just
decision of the case and it must be used judicially
and not capriciously or arbitrarily because any
improper or capricious exercise of the power may
lead to undesirable results. Further it is incumbent
that due care should be taken by the court while
exercising the power under this section and it should
not be used for filling up the lacuna left by the
prosecution or by the defence or to the disadvantage
of the accused or to cause serious prejudice to the
defence of the accused or to give an unfair
advantage to the rival side and further the additional
evidence should not be received as a disguise for a
retrial or to change the nature of the case against
either of the parties.”
36. Summing up the position as it obtained from
various decisions of this Court, namely Rameshwar Dayal
v. State of U.P., State of W.B. v. Tulsidas Mundhra,
Jamatraj Kewalji Govani v. State of Maharashtra, Masalti
v. State of U.P., Rajeswar Prosad Misra v. State of W.B.
and R.B. Mithani v. State of Maharashtra, the Court held:
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“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.”
37. The power of the court is not constrained by the
closure of evidence. Therefore, it is amply clear from the
above discussion that the broad powers under Section
311 are to be governed by the requirement of justice. The
power must be exercised wherever the court finds that
any evidence is essential for the just decision of the case.
The statutory provision goes to emphasise that the court
is not a hapless bystander in the derailment of justice.
Quite to the contrary, the court has a vital role to
discharge in ensuring that the cause of discovering truth
as an aid in the realization of justice is manifest.
38. Section 91 CrPC empowers inter alia any Court
to issue summons to a person in whose possession or
power a document or thing is believed to be, where it
considers the production of the said document or thing
necessary or desirable for the purpose of any
investigation, inquiry, trial or other proceeding under the
CrPC.
39. Section 91 forms part of Chapter VII of CrPC
which is titled “Processes to Compel the Production of
Things”. Chapter XVI of the CrPC titled “Commencement
of Proceedings before Magistrates” includes Section 207
which provides for the supply to the accused of a copy of
the police report and other documents in any case where
the proceeding has been instituted on a police report.25
Both operate in distinct spheres.
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40. In the present case, the application of the
prosecution for the production of the decoding registers is
relatable to the provisions of Section 91 CrPC. The
decoding registers are sought to be produced through the
representatives of the cellular companies in whose
custody or possession they are found. The decoding
registers are a relevant piece of evidence to establish the
co-relationship between the location of the accused and
the cell phone tower. The reasons which weighed with the
High Court and the Trial Court in dismissing the
application are extraneous to the power which is
conferred under Section 91 on the one hand and Section
311 on the other. The summons to produce a document
or other thing under Section 91 can be issued where the
Court finds that the production of the document or thing
“is necessary or desirable for the purpose of any
investigation, trial or other proceeding” under the CrPC.
As already noted earlier, the power under Section 311 to
summon a witness is conditioned by the requirement that
the evidence of the person who is sought to be
summoned appears to the Court to be essential to the
just decision of the case.
41. PWs 33, 41, 43 and 48, who were the nodal
officers of Idea, Airtel, Reliance and Vodafone have
already been examined. During the examination of PW-
41, the nodal officer of Airtel, the witness specifically
deposed during the course of examination that:
“2. Call detail of mobile number
XXXXXXXXXX, which has 134 pages is Exhibit P-104,
I sent the same detail of the call to the police. Each
page of the same has seal of Bharti Airtel on the
same. Call detail contains date and time wise detail
of call and short message services made/sent and
received by the customer. Additionally, location of
the mobile number is available in code number along
with the time of the call or message for which call
detail is provided. Location of the call made by the
mobile number in certain time has been shown with
codes, I cannot state name of the location today by
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seeing the code. Location can be stated after
decoding the same. We have coding chart for
location, by seeing the same location can be started.
I don’t have aforesaid chart along with me. Aforesaid
chart is available in the office.”
(emphasis supplied)
42. The relevance of the decoding register clearly
emerges from the above statement of PW-41. Hence, the
effort of the prosecution to produce the decoding register
which is a crucial and vital piece of evidence ought not to
have been obstructed. In terms of the provisions of
Section 311, the summoning of the witness for the
purpose of producing the decoding register was essential
for the just decision of the case.
43. Having dealt with the satisfaction of the
requirements of Section 311, we deal with the objection
of the respondents that the application should not be
allowed as it will lead to filling in the lacunae of the
prosecution’s case. However, even the said reason cannot
be an absolute bar to allowing an application under
Section 311.
44. In the decision in Zahira Habibullah Sheikh (5)
v. State of Gujarat, which was more recently reiterated in
Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27,
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:
“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
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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.
(emphasis supplied)
45. The right of the accused to a fair trial is
constitutionally protected under Article 21.
However, in Mina Lalita Baruwa (supra), while
reiterating Rajendra Prasad (supra), 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 (supra), the Court
had held that:
“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 irreparable
lacuna. No party in a trial can be foreclosed
from correcting errors. If proper evidence was not
adduced or a relevant material was not brought on
record due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be
rectified. After all, function of the criminal court is
administration of criminal justice and not to count
errors committed by the parties or to find out and
declare who among the parties performed better.”
(emphasis supplied)
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46. 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 form of the call details which are
already on record but use codes to signify the location of
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.
47. 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 (supra), 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 (supra) observed:
“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
belated stage would cause great prejudice to the
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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.”
48. 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
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 November 2021, the application by
the prosecution had been filed on 15 March 2021
nearly eight months earlier. As a matter of fact,
another witness for the prosecution, Rajesh Kumar
Singh, was also released after examination and
cross-examination on the same day as recorded in
the order dated 13 November 2021 of the trial
court.
49. The Court is vested with a broad and
wholesome power, in terms of Section 311 of the
CrPC, 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
(supra) while dealing with the prayers for adducing
additional evidence under Section 391 CrPC at the
appellate stage, along with a prayer for
examination of witnesses under Section 311 CrPC
explained the role of the court, in the following
terms:
“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
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of the Evidence Act confer vast and wide
powers on presiding officers of 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 record.
Even if the prosecutor is remiss in some
ways, it can control the proceedings
effectively so that the ultimate objective
i.e. truth is arrived at. This becomes more
necessary where the court has reasons to
believe that the prosecuting agency or the
prosecutor is not acting in the requisite
manner. The court cannot afford to be
wishfully 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 could
not also play into the hands of such
prosecuting agency showing indifference
or adopting an attitude of total aloofness.”
(emphasis supplied)
50. Further, in Zahira Habibullah Sheikh (5)
(supra), the Court reiterated the extent of powers under
Section 311 and held that:
“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
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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 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 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 supplied)
51. The Court while reiterating the principle
enunciated in Mohanlal Shamji Soni (supra) stressed upon
the wide ambit of Section 311 which allows the power to
be exercised at any stage and held that:
“44. The power of the court under
Section 165 of the Evidence Act is in a way
complementary to its power under Section 311
of the Code. The section consists of two parts
i.e. : (i) giving a discretion to the court to
examine the witness at any stage, and (ii) the
mandatory portion which compels the court to
examine a witness if his evidence appears to
be essential to the just decision of the court.
Though the discretion given to the court is very
wide, the very width requires a corresponding
caution. In Mohanlal v. Union of India this
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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. Object of the section is to enable
the court to arrive at the truth irrespective
of the fact that the prosecution or the
defence has failed to produce some
evidence which is necessary for a just and
proper disposal of the case. The power is
exercised and the evidence is examined
neither to help the prosecution nor the
defence, if the court feels that there is
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)
5. In the light of the law as declared by the Apex
Court, the petition deserves to succeed. The order of the
concerned Court stands quashed. The application filed by the
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prosecution is allowed in its entirety, which would be recall of
both the witnesses for further examination.
6. For the aforesaid reasons, the following:
ORDER
(i) The writ petition is allowed.
(ii) The proceedings in SC.No.33/2021 pending on
the file of I Additional District and Sessions
Court at Mandya stands quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
List No.: 1 Sl No.: 46
