Rajasthan High Court – Jodhpur
Narayan Lal Rebari vs State Of Rajasthan on 1 April, 2026
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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
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
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[2026:RJ-JD:14230] (9 of 11) [CRLMP-1501/2026]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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