Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh on 6 August, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.845 of2026
Date of Decision: 06.08.2026
_______________________________________________________
Rakesh Kumar …….Petitioners
Versus
State of Himachal Pradesh … Respondent
_______________________________________________________
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioners : Mr. Arjun Lal, Mr. Sohil Kumar, Mr. Vidur
Kapoor and Ms. Tamanna Basoli,
Advocates.
For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar,
Additional Advocate Generals with Mr. Ravi
Chauhan & Mr. Anish Banshtu, Deputy
Advocates General
_______________________________________________________
Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated
14.07.2026 passed by learned Additional Sessions Judge, Kullu,
District Kullu, Himachal Pradesh, in Cr.MP. No. 263 of 2026 in
Sessions Trial No. 99 of 2021(CIS R No.26/2021), whereby an
application filed under Section 348 Bharatiya Nagarik Suraksha
Sanhita (earlier Section 311 Cr.P.C.) praying therein to re-
examine/recall one of the witness for cross-examination came to be
rejected, petitioner has approached this Court under Section 528
1
Whether the reporters of the local papers may be allowed to see the judgment?
2
Bharatiya Nagarik Suraksha Sanhita for setting aside the aforesaid
order and grant one opportunity to cross-examine PW-17.
2. Mr. Ravi Chauhan, learned Deputy Advocate General,
has put in appearance on behalf of the respondent-State. He fairly
states that no reply is required to be filed, rather case at hand can be
decided on the basis of the pleadings as well as documents adduced
on record.
3. Precisely, the facts of the case, as emerge from the
pleadings as well as other material adduced on record by the
respective parties, are that petitioner herein, who is facing trial under
Section 302 IPC, filed an application under Section 348 BNSS,
praying therein to re-examine Sh. Prem Thakur, DPRO Kullu, Tehsil
and District Kullu, who was examined as PW-17 during trial. In the
aforesaid application, petitioner-accused averred that though Sh.
Prem Thakur, DPRO was examined by the prosecution as PW-17, but
during his cross-examination, certain essential and material questions
regarding arrival of ambulance could not be put to him. It also came to
be averred in the application that re-examination and further cross-
examination of aforesaid witness is very essential for just decision of
the case.
4. Aforesaid prayer made on behalf of the petitioner-
accused came to be resisted by the respondent-State by filing reply
on the ground that ample opportunities were provided to the
3
petitioner-accused to cross-examine the witness and as such, at this
belated stage, when the matter is listed for final arguments, prayer
made through the application at hand cannot be allowed. It also came
to be submitted at the behest of the respondent-State that story
regarding lack of communication between accused and his counsel is
concocted and there are no legal and valid grounds to permit re-
examination of the witness, rather same is a clear-cut attempt on
behalf of the petitioner-accused to delay the trial.
5. Learned trial Court, on the basis of pleadings as well as
other material adduced on record, dismissed the application primarily
on the ground that it has been filed at a very belated stage.
6. Precisely, the grouse of the petitioner, as has been
highlighted in the petition and further canvassed by Mr. Arjun Lall,
learned counsel for the petitioner, is that impugned order is not based
upon proper appreciation of the provision contained under Section
348 BNSS as well as averments contained in the application. Learned
counsel representing the petitioner-accused states that Court below,
merely after recording the averments and submissions made at the
behest of both the parties, proceeded to decide the application on the
ground of inordinate delay. There is no attempt, if any, at the behest
of Court below to find out whether re-examination of PW-17 is
essential for just decision of the case or not. Lastly, learned counsel
representing the petitioner states that otherwise also, by now it is well
4
settled that accused should be provided opportunity till the end of trial
to prove his innocence. He states that since petitioner-accused, by
way of re-examining PW-17, wants to prove his innocence, there was
no occasion, if any, for the Court below to dismiss the application,
rather it ought to have allowed the same, because in that situation, no
prejudice would be caused to the prosecution.
7. In support of his aforesaid submission, he placed reliance
upon the judgment passed by this Court in Cr.MMO No. 209 of 2017,
titled Sardar Singh v. State of Himachal Pradesh, wherein this
Court, while placing reliance upon the various judgments passed by
Hon’ble Apex Court, held that powers under Section 311 Cr.P.C. (now
Section 348 BNSS) to summon any person as a witness, or examine
any person already examined can be exercised at any stage,
provided the same is required for just decision of the case and that is
the object of a fair trial.
8. To the contrary, Mr. Ravi Chauhan, learned Deputy
Advocate General, while supporting the impugned order, submits that
since despite ample opportunities, petitioner-accused failed to put
relevant questions to PW-17 during his cross-examination, coupled
with the fact that application for re-examination came to be filed at a
belated stage, no illegality can be said to have been committed by
Court below, while passing the impugned order. He submits that
application under Section 348 BNSS came to be filed after recording
5
the statement of the petitioner-accused under Section 313 Cr.P.C.,
and as such, there was no occasion, if any, for the Court below to
consider the prayer made on behalf of the petitioner for re-
examination of the witness.
9. Having heard learned counsel for the parties and
perused material available on record, this Court finds that person
otherwise sought to be re-examined through application at hand was
though cross-examined by petitioner-accused, but at that time, certain
relevant questions regarding arrangement and arrival of the
ambulance could not be put to him due to lack of communication
between accused and his counsel. True it is that , at the time of cross-
examination, accused was present, but since on account of his
incarceration, he was unable to communicate with his lawyer prior to
cross-examination of witness concerned, possibility of
miscommunication or lack of coordination inter se him and his lawyer
cannot be ruled out.
10. Question, which was required to be decided by the Court,
while deciding the application was “whether re-examination of PW-17
is essential for just decision of the case or not”?.
11. Admittedly, careful perusal of the order laid challenge in
the instant proceedings nowhere suggests that attempt, if any, ever
came to be made by the Court below to ascertain whether re-
examination of PW-17 would be essential for just decision of the case,
6
rather, it simply, having taken note of the fact that application for re-
examination came to be filed at a belated stage, proceeded to dismiss
the same.
12. No doubt, PW-17 stood cross-examined at an earlier
occasion, but since at that time relevant question could not be put to
him, as has been discussed hereinabove, petitioner had no option,
but to file application under Section 348 BNSS for re-examination.
Otherwise also, by now it is well-settled that accused should be
provided full opportunity to prove his innocence. Bare reading of
aforesaid provision of law, itself suggests that application for re-
examination/re-calling of witness can be made at any stage of trial,
meaning thereby, before passing of judgment, petitioner-accused can
make an attempt to prove his innocence.
13. At this stage, it would be apt to take note of provision
contained under Section 348 BNSS, which reads as under:-
348. Power to summon material witness, or examine person
present.
Any Court may, at any stage of any inquiry, trial or other proceeding
under this Sanhita, summon any person as a witness, or examine
any person in attendance, though not summoned as a witness, or
re-call and re-examine any person already examined; and the Court
shall summon and examine or re-call and re-examine any such
person if his evidence appears to it to be essential to the just
decision of the case.
14. Bare perusal of aforesaid provision clearly suggests that
Court may, at any stage, summon any person as a witness, or recall
and re-examine any witness, provided that same is essentially
required for just decision of the case.
7
15. Reliance in this regard is placed upon judgment passed
by this Court in Sardar Singh (supra), wherein aforesaid aspect of
the matter has been dealt with elaborately taking note of judgments
passed by Hon’ble Apex Court from time to time. The relevant paras
of the judgment are as under:-
“10. Before ascertaining the merits of the submissions having
been made by learned counsel representing the respective parties
vis-Ã -vis impugned order passed by the learned trial Court, it
would be profitable to take note of Section 311 Cr.P.C., which
reads as under:-
“311. Power to summon material witness, or examine
person present:-. Any Court may, at any stage of any
inquiry, trial or other proceeding under this Code, summon
any person as a witness, or examine any person in
attendance, though not summoned as a witness, or. recall
and re- examine any person already examined; and the
Court shall summon and examine or recall and reexamine
any such person if his evidence appears to it to be
essential to the just decision of the case”
Bare perusal of aforesaid provision suggests that the Court
may, at any time, summon any person as a witness, or
recall and re-examine any witness provided that same is
essentially required for just decision of the case, and
judgments passed by Hon’ble Apex Court in Mannan SK
and others vs. State of West Bengal and another AIR 2014
SC 2950, wherein the Hon’ble Court has held as under:-
“10. The aim of every court is to discover truth. Section
311 of the Code is one of many such provisions of the
Code which strengthen the arms of a court in its effort to
ferret out the truth by procedure sanctioned by law. It is
couched in very wide terms. It empowers the court at any
stage of any inquiry, trial or other proceedings under the
Code to summon any person as a witness or examine any
person in attendance, though not summoned as witness or
recall and re-examine already examined witness. The
second part of the Section uses the word ‘shall’. It says that
the court shall summon and examine or recall or re-
examine any such person if his evidence appears to it to be
essential to the just decision of the case. The words
‘essential to the just decision of the case’ are the key
words. The court must form an opinion that for the just
decision of the case recall or reexamination of the witness
is necessary. Since the power is wide it’s exercise has to
be done with circumspection. It is trite that wider the power
greater is the responsibility on the courts which exercise it.
The exercise of this power cannot be untrammeled and
arbitrary but must be only guided by the object of arriving at
8a just decision of the case. It should not cause prejudice to
the accused. It should not permit the prosecution to fill-up
the lacuna. Whether recall of a witness is for filling-up of a
lacuna or it is for just decision of a case depends on facts
and circumstances of each case. In all cases it is likely to
be argued that the prosecution is trying to fill-up a lacuna
because the line of demarcation is thin. It is for the court to
consider all the circumstances and decide whether the
prayer for recall is genuine.”
11. Hon’ble Apex Court in Raja Ram Prasad Yadav vs. State of
Bihar and another, (2013)14 SCC 461, has held that powers
under Section 311 Cr.P.C. to summon any person or witness or
examine any person already examined can be exercised at any
stage provided the same is required for just decision of the case.
It may be profitable to take note of the following paras of the
judgment:-
“14. A conspicuous reading of Section 311 Cr.P.C. would
show that widest of the powers have been invested with the
Courts when it comes to the question of summoning a
witness or to recall or re-examine any witness already
examined. A reading of the provision shows that the
expression “any” has been used as a pre-fix to “court”,
“inquiry”, “trial”, “other proceeding”, “person as a witness”,
“person in attendance though not summoned as a witness”,
and “person already examined”. By using the said
expression “any” as a pre-fix to the various expressions
mentioned above, it is ultimately stated that all that was
required to be satisfied by the Court was only in relation to
such evidence that appears to the Court to be essential for
the just decision of the case. Section 138 of the Evidence
Act, prescribed the order of examination of a witness in the
Court. Order of re-examination is also prescribed calling for
such a witness so desired for such re-examination.
Therefore, a reading of Section 311 Cr.P.C. and Section
138 Evidence Act, insofar as it comes to the question of a
criminal trial, the order of re-examination at the desire of
any person under Section 138, will have to necessarily be
in consonance with the prescription contained in Section
311 Cr.P.C. It is, therefore, imperative that the invocation of
Section 311 Cr.P.C. and its application in a particular case
can be ordered by the Court, only by bearing in mind the
object and purport of the said provision, namely, for
achieving a just decision of the case as noted by us earlier.
The power vested under the said provision is made
available to any Court at any stage in any inquiry or trial or
other proceeding initiated under the Code for the purpose
of summoning any person as a witness or for examining
any person in attendance, even though not summoned as
witness or to recall or re-examine any person already
examined. Insofar as recalling and re-examination of any
person already examined, the Court must necessarily
9consider and ensure that such recall and re-examination of
any person, appears in the view of the Court to be essential
for the just decision of the case. Therefore, the paramount
requirement is just decision and for that purpose the
essentiality of a person to be recalled and re-examined has
to be ascertained. To put it differently, while such a widest
power is invested with the Court, it is needless to state that
exercise of such power should be made judicially and also
with extreme care and caution.
15.In this context, we also wish to make a reference to certain
decisions rendered by this Court on the interpretation of Section
311 Cr.P.C. where, this Court highlighted as to the basic principles
which are to be borne in mind, while dealing with an application
under Section 311 Cr.P.C.
15.1 In the decision reported in Jamatraj Kewalji Govani vs. State
of Maharashtra – AIR 1968 SC 178, this Court held as under in
paragraph 14:-
“14. It would appear that in our criminal jurisdiction, statutory law
confers a power in absolute terms to be exercised at any stage of
the trial to summon a witness or examine one present in court or to
recall a witness already examined, and makes this the duty and
obligation of the Court provided the just decision of the case
demands it. In other words, where the court exercises the power
under the second part, the inquiry cannot be whether the accused
has brought anything suddenly or unexpectedly but whether the
court is right in thinking that the new evidence is needed by it for a
just decision of the case. If the court has acted without the
requirements of a just decision, the action is open to criticism but if
the court’s action is supportable as being in aid of a just decision
the action cannot be regarded as exceeding the jurisdiction.”
(Emphasis added)
15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of
India and another – 1991 Suppl.(1) SCC 271, this Court again
highlighted the importance of the power to be exercised under
Section 311 Cr.P.C. as under in paragraph 10:-
“10….In order to enable the court to find out the truth and
render a just decision, the salutary provisions of Section
540 of the Code (Section 311 of the new Code) are
enacted whereunder any court by exercising its
discretionary authority at any stage of enquiry, trial or other
proceeding can summon any person as a witness or
examine any person in attendance though not summoned
as a witness or recall or re- examine any person in
attendance though not summoned as a witness or recall
and reexamine any person already examined who are
expected to be able to throw light upon the matter in
dispute; because if judgments happen to be rendered on
inchoate, inconclusive and speculative presentation of
facts, the ends of justice would be defeated.”
10
15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar –
1999 (7) SCC 604, the proposition has been reiterated as under
in paragraph 9:-
“9. We may observe that the power of the court as
envisaged in Section 311 of the Code of Criminal
Procedure has not been curtailed by this Court. Neither in
the decision of the five-Judge Bench in A.R. Antulay case
nor in Kartar Singh case such power has been restricted for
achieving speedy trial. In other words, even if the
prosecution evidence is closed in compliance with the
directions contained in the main judgment it is still open to
the prosecution to invoke the powers of the court under
Section 311 of the Code. We make it clear that if evidence
of any witness appears to the court to be essential to the
just decision of the case it is the duty of the court to
summon and examine or recall and re-examine any such
person.” (Emphasis added)
15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh
Mohansinh Chauhan – 2006 (7) SCC 529, the decision has been
further elucidated as under in paragraph 15:-
“15. A conspectus of authorities referred to above would
show that the principle is well settled that the exercise of
power under Section 311 CrPC should be resorted to only
with the object of finding out the truth or obtaining proper
proof of such facts which lead to a just and correct
decision of the case, this being the primary duty of a
criminal court. Calling a witness or re-examining a witness
already examined for the purpose of finding out the truth
in order to enable the court to arrive at a just decision of
the case cannot be dubbed as “filling in a lacuna in the
prosecution case” unless the facts and circumstances of
the case make it apparent that the exercise of power by
the court would result in causing serious prejudice to the
accused resulting in miscarriage of justice.” (Emphasis
supplied)
15.5 In Iddar & Ors. vs. Aabida & Anr. – AIR 2007 SC 3029, the
object underlying under Section 311 Cr.P.C., has been stated as
under in paragraph 9:-
“9…27. The object underlying Section 311 of the Code is that
there may not be failure of justice on account of mistake of
either party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The
section is not limited only for the benefit of the accused, and
it will not be an improper exercise of the powers of the court
11to summon a witness under the section merely because the
evidence supports the case for the prosecution and not that
of the accused. The section is a general section which
applies to all proceedings, enquiries and trials under the
Code and empowers Magistrate to issue summons to any
witness at any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is ‘at any
stage of inquiry or trial or other proceeding under this Code’.
It is, however, to be borne in mind that whereas the section
confers a very wide power on the court on summoning
witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the
necessity for application of judicial mind.” (Emphasis added)
15.6 In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,
the scope of Section 311 Cr.P.C. has been highlighted by making
reference to an earlier decision of this Court and also with
particular reference to the case, which was dealt with in that
decision in paragraphs 20 and 23, which are as under:-
“20. Grant of fairest opportunity to the accused to prove
his innocence was the object of every fair trial, observed
this Court in Hoffman Andreas v. Inspector of Customs,
Amritsar (2000) 10 SCC 430. The following passage is in
this regard apposite:
“6. …In such circumstances, if the new counsel thought to
have the material witnesses further examined, the Court
could adopt latitude and a liberal view in the interest of
justice, particularly when the court has unbridled powers
in the matter as enshrined in Section 311 of the Code.
After all the trial is basically for the prisoners and courts
should afford the opportunity to them in the fairest manner
possible.”
23. We are conscious of the fact that recall of the
witnesses is being directed nearly four years after they
were examined-in-chief about an incident that is nearly
seven years old. Delay takes a heavy toll on the human
memory apart from breeding cynicism about the efficacy
of the judicial system to decide cases within a reasonably
foreseeable time period. To that extent the apprehension
expressed by Mr. Rawal, that the prosecution may suffer
prejudice on account of a belated recall, may not be
wholly without any basis. Having said that, we are of the
opinion that on a parity of reasoning and looking to the
consequences of denial of opportunity to cross-examine
the witnesses, we would prefer to err in favour of the
appellant getting an opportunity rather than protecting the
12
prosecution against a possible prejudice at his cost.
Fairness of the trial is a virtue that is sacrosanct in our
judicial system and no price is too heavy to protect that
virtue. A possible prejudice to prosecution is not even a
price, leave alone one that would justify denial of a fair
opportunity to the accused to defend himself.” (Emphasis
in original)
15.7 In a recent decision of this Court in Sheikh Jumman vs.
State of Maharashtra – (2012) 9 SCALE 18, the above referred to
decisions were followed.
16. Again in an unreported decision rendered by this Court dated
08.05.2013 in Natasha Singh vs. CBI (State) – Criminal Appeal
No.709 of 2013, where one of us was a party, various other
decisions of this Court were referred to and the position has been
stated as under in paragraphs 15 and 16:
“15. The scope and object of the provision is to enable the
Court to determine the truth and to render a just decision
after discovering all relevant facts and obtaining proper
proof of such facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not capriciously
or arbitrarily, as any improper or capricious exercise of
such power may lead to undesirable results. An application
under Section 311 Cr.P.C. must not be allowed only to fill
up a lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused, or to cause
serious prejudice to the defence of the accused, or to give
an unfair advantage to the opposite party. Further the
additional evidence must not be received as a disguise for
retrial, or to change the nature of the case against either of
the parties. Such a power must be exercised, provided that
the evidence that is likely to be tendered by a witness, is
germane to the issue involved. An opportunity of rebuttal,
however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must, therefore,
be invoked by the Court only in order to meet the ends of justice,
for strong and valid reasons, and the same must be exercised with
great caution and circumspection.
The very use of words such as ‘any Court’, ‘at any stage’, or ‘or
any enquiry’, trial or other proceedings’, ‘any person’ and ‘any
such person’ clearly spells out that the provisions of this section
have been expressed in the widest possible terms, and do not limit
the discretion of the Court in any way. There is thus no escape if
the fresh evidence to be obtained is essential to the just decision
of the case. The determinative factor should, therefore, be whether
the summoning/recalling of the said witness is in fact, essential to
the just decision of the case.
16. Fair trial is the main object of criminal procedure, and it is the
duty of the court to ensure that such fairness is not hampered or
threatened in any manner. Fair trial entails the interests of the
13accused, the victim and of the society, and therefore, fair trial
includes the grant of fair and proper opportunities to the person
concerned, and the same must be ensured as this is a
constitutional, as well as a human right. Thus, under no
circumstances can a person’s right to fair trial be jeopardized.
Adducing evidence in support of the defence is a valuable right.
Denial of such right would amount to the denial of a fair trial. Thus,
it is essential that the rules of procedure that have been designed
to ensure justice are scrupulously followed, and the court must be
zealous in ensuring that there is no breach of the same. (Vide
Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR
1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh &
Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar
(Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar
v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v.
State through C.B.I. (2012) 3 SCC 387.)”
17. From a conspectus consideration of the above decisions, while
dealing with an application under Section 311 Cr.P.C. read along
with Section 138 of the Evidence Act, we feel the following
principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence sought to
be led in under Section 311 is noted by the Court for a just
decision of a case?
b) The exercise of the widest discretionary power under
Section 311 Cr.P.C. should ensure that the judgment
should not be rendered on inchoate, inconclusive and
speculative presentation of facts, as thereby the ends of
justice would be defeated.
c) If evidence of any witness appears to the Court to be
essential to the just decision of the case, it is the power of
the Court to summon and examine or recall and reexamine
any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding out the
truth or obtaining proper proof for such facts, which will
lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as
filling in a lacuna in a prosecution case, unless the facts
and circumstances of the case make it apparent that the
exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage of
justice.
f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect
essential to examine such a witness or to recall him for
further examination in order to arrive at a just decision of
the case.
14
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.
i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be impossible
to pronounce the judgment without it, but because there
would be a failure of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good sense should
be the safe guard, while exercising the discretion. The
Court should bear in mind that no party in a trial can be
foreclosed from correcting errors and that if proper
evidence was not adduced or a relevant material was not
brought on record due to any inadvertence, the Court
should be magnanimous in permitting such mistakes to be
rectified.
k) The Court should be conscious of the position that after
all the trial is basically for the prisoners and the Court
should afford an opportunity to them in the fairest manner
possible. In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity rather than
protecting the prosecution against possible prejudice at the
cost of the accused. The Court should bear in mind that
improper or capricious exercise of such a discretionary
power, may lead to undesirable results.
l) The additional evidence must not be received as a
disguise or to change the nature of the case against any of
the party.
m) The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to
the issue involved and also ensure that an opportunity of
rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be
invoked by the Court only in order to meet the ends of
justice for strong and valid reasons and the same must be
exercised with care, caution and circumspection. The Court
should bear in mind that fair trial entails the interest of the
accused, the victim and the society and, therefore, the
grant of fair and proper opportunities to the persons
concerned, must be ensured being a constitutional goal, as
well as a human right.”
12. Hon’ble Apex Court in Zahira Habibullah Sheikh (5) and
another vs. State of Gujarat and others (2006)3 SCC 374 has
held as under:-
“27. The object underlying Section 311 of the Code is that
there may not be failure of justice on account of mistake of
either party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The
section is not limited only for the benefit of the accused,
and it will not be an improper exercise of the powers of the
Court to summon a witness under the Section merely
15because the evidence supports the case for the
prosecution and not that of the accused. The section is a
general section which applies to all proceedings, enquiries
and trials under the Code and empowers Magistrate to
issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the significant
expression that occurs is “at any stage of inquiry or trial or
other proceeding under this Code”. It is, however, to be
borne in mind that whereas the section confers a very wide
power on the Court on summoning witnesses, the
discretion conferred is to be exercised judiciously, as the
wider the power the greater is the necessity for application
of judicial mind.
28. As indicated above, the Section is wholly discretionary.
The second part of it imposes upon the Magistrate an
obligation: it is, that the Court shall summon and examine
all persons whose evidence appears to be essential to the
just decision of the case. It is a cardinal rule in the law of
evidence that the best available evidence should be
brought before the Court. Sections 60, 64 and 91 of the
Indian Evidence Act, 1872 (in short, ‘Evidence Act‘) are
based on this rule. The Court is not empowered under the
provisions of the Code to compel either the prosecution or
the defence to examine any particular witness or witnesses
on their side. This must be left to the parties. But in
weighing the evidence, the Court can take note of the fact
that the best available evidence has not been given, and
can draw an adverse inference. The Court will often have
to depend on intercepted allegations made by the parties,
or on inconclusive inference from facts elicited in the
evidence. In such cases, the Court has to act under the
second part of the section. Sometimes the examination of
witnesses as directed by the Court may result in what is
thought to be “filling of loopholes”. That is purely a
subsidiary factor and cannot be taken into account.
Whether the new evidence is essential or not must of
course depend on the facts of each case, and has to be
determined by the Presiding Judge.
29. The object of the Section 311 is to bring on record
evidence not only from the point of view of the accused and
the prosecution but also from the point of view of the
orderly society. If a witness called by Court gives evidence
against the complainant he should be allowed an
opportunity to cross- examine. The right to cross-examine a
witness who is called by a Court arises not under the
provision of Section 311, but under the Evidence Act which
gives a party the right to cross- examine a witness who is
not his own witness. Since a witness summoned by the
Court could not be termed a witness of any particular party,
the Court should give the right of cross- examination to the
complainant. These aspects were highlighted in Jamat Raj
Kewalji Govani v. State of Maharashtra, (AIR 1968 SC
178).
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30. Right from the inception of the judicial system it has
been accepted that discovery, vindication and
establishment of truth are the main purposes underlying
existence of Courts of justice. The operative principles for a
fair trial permeate the common law in both civil and criminal
contexts. Application of these principles involves a delicate
judicial balancing of competing interests in a criminal trial,
the interests of the accused and the public and to a great
extent that of the victim have to be weighed not losing sight
of the public interest involved in the prosecution of persons
who commit offences.
13. In the judgments referred above, the Hon’ble Apex Court has
specifically observed that the words “essential to the just decision
of the case” are key words and in this regard, the court must form
an opinion that for the just decision of the case, whether it is
necessary to recall or examine the witness or not.
14. True it is that in the aforesaid judgments the Hon’ble Apex
Court has also cautioned the courts below to be more careful and
cautious while exercising power under Section 311 of the Cr.PC,
but court can always summon, recall or reexamine any witness at
any stage, provided his/her statement is necessary for proper
adjudication of the case. It is well settled that wider the power
greater is the responsibility on the courts which exercise it and
exercise of such power cannot be untrammeled and arbitrary,
rather, same must be only guided upon by the object of arriving
at a just decision of the case”.
16. Most importantly, Hon’ble Apex Court in various
judgments, as has been taken note by this Court in Sardar Singh’s
(supra), has held whether recall of witness is to fill up lacuna or it is
for just decision of a case depends upon the given circumstances of
each case. In the instant case, probably petitioner-accused, with a
view to prove his innocence, intends to prove on record that after
alleged incident, he called for an ambulance through DPRO, so that
his wife, who is deceased, is taken to hospital. Prosecution in the
case at hand has attempted to prove that after alleged incident,
petitioner-accused attempted to dispose of body of the deceased by
taking it in some private vehicle. Since counsel representing the
petitioner at the relevant time was unable to put aforesaid suggestion,
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which may otherwise be crucial to the case of the petitioner, he was
well within his right to seek re-examination of PW-17, which can be
said to be essential for the just decision of the case.
17. Consequently, in view of the detailed discussion made
hereinabove as well as law taken into consideration, this Court finds
merit in the present petition and accordingly, same is allowed. The
impugned order dated 14.07.2026 passed by learned Additional
Sessions Judge, Kullu, District Kullu, Himachal Pradesh, in Cr.MP.
No. 263 of 2026 in Sessions Trial No. 99 of 2021(CIS R No.26/2021),
is set aside.
18. Since learned Court below has already fixed the matter
on 20.08.2026, this Court directs the petitioner, through his counsel,
to apprise learned Court below with regard to passing of the instant
order, enabling it to fix a date for cross-examination of PW-17, to
whom notice may also be sent for the given date. Needless to say, in
the event of default, if any, at the behest of the petitioner to re-
examine the witness on the date fixed by Court below, no further
opportunity shall be provided and thereafter Court below shall
proceed to decide the matter accordingly. Pending applications, if
any, also stand disposed of.
2.
(Sandeep Sharma),
Judge
August 06, 2026
(shankar)
