# Ajmer v. State of U.P

- **Citation:** (2021) 3 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Application U/S 482 Cr.P.C. No. 19804 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajmer-v-state-of-u-p-46891
- **Pages:** 12

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 311- Section
482- Criminal Application against order
rejecting application under section 311
CrPc- Maintainability of -The orders issued
by the trial court on an application filed
under
Section
311
Cr.P.C.
are
interlocutory in nature and a revision
against such order is barred under Section
397(2)
Cr.P.C.-
Even
otherwise
the
availability
of
alternative
remedy
of
revision under Section 397 Cr.P.C. by itself
would not constitute a bar for entertaining
an application under Section 482 Cr.P.C.

As the orders passed by the trial court upon an
application filed u/s 311 of the CrPc are
interlocutory in nature, hence the same can only
be challenged through an application u/s 482 of
the CrPc instead of a criminal revision.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 311 - The power
conferred
has
been
held
to
be
discretionary and is to enable the court to
determine the truth after discovering all
relevant facts and obtaining proper proof
thereof to arrive at a just decision in the
case. The power conferred under Section
311 is to be invoked by the court to meet
the ends of justice, for strong and valid
reasons and it is to be exercised with
great caution and circumspection. The
determinative factor in this regard would
be whether the summoning or recalling of
the witness is in fact, essential to the just
decision of the case keeping in view that
fair trial - which entails the interests of
the accused, the victim and of the society
- is the main object of the criminal
procedure and the court is to ensure that
such
fairness
is
not
hampered
or
threatened in any manner.

The power u/s 311 CrPc, though discretionary,
is
to
be
exercised
sparingly
and
with
circumspection for the just decision of the case
and for ensuring fairness of the trial. ( Para 4,5,
20,21)
Criminal Application rejected. (E-2)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,948 of 41,534. This is a partial read: ask again with offset=39948 for what follows._

3 All. Ajmer Vs. State of U.P.
1173
the statements of the complainant and of the
witnesses. The Magistrate has summoned not
all the opposite parties arrayed as accused in the
complaint, but, has summoned only the
applicants. The Magistrate has recorded in his
order that prima facie case for summoning
under Sections 323, 342, 379, 504, IPC was
made
out.
This
clearly
demonstrates
consideration of the statements of the
complainant and the witnesses, and of
application of judicial mind to arrive at the
satisfaction for summoning under the sections
for which offences were prima facie made out
against the applicants only.

37. Learned counsel for the applicants
could not successfully demonstrate before this
Court as to how the summoning order suffers
from illegality or perversity or improper
exercise of jurisdiction or that any case for
summoning the accused persons, was not made
out even prima facie, on the basis of the
averments in the complaint and the material on
record.

38. So for as the submission of the
learned counsel for the applicants that the
applicants have been falsely implicated, the
same cannot be determined at this stage in the
exercise of the jurisdiction under Section 482
Cr.P.C. as the said submissions require
adjudication on the basis of evidence and can be
determined during trial. The submission that the
applicants have been implicated due to the
F.I.R. lodged by them against the opposite party
no.2 and his family members, as a counter blast,
cannot form the basis for interference with the
summoning order, particularly when it could
not be established that the averments of the
complaint alongwith the material on record do
not make out prima-facie, commission of any
offence by the applicants and also when the
date of the incident as mentioned in the FIR and
the complaint filed by opposite party no.2 is the
same.

39. Lastly, it was also submitted that the
complaint was filed with delay, as it was filed
on 20.10.2016 whereas the alleged incident is
dated 26.09.2016. The Court is not convinced
for the reasons more than one. Ordinarily, delay
in filing complaint by itself cannot be a ground
to quash the criminal prosecution. Further, the
delay does not appear to be inordinate. Besides
paragraph 4 of the complaint mentions that on
26.09.2016 when the complainant approached
the concerned Police Station, his report was not
lodged. An application to the Superintendent of
Police concerned is also said to have been sent
through registered post but when any action
was not taken, the complaint under Section
156(3) Cr.P.C. was filed on 20.10.2016.

40. The order passed by the Magistrate is
in conformity with the settled law. I do not find
any illegality in the order under challenge. The
prayer for quashing the summoning order and
the further proceedings of the complaint case is
refused.

41. This application under Section 482
Cr.P.C. is hereby rejected.

42. No order as to costs.
----------
(2021)03ILR A1173
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19804 of 2020

Ajmer ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Atul Tej Kulshrestha
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 311- Section
482- Criminal Application against order
rejecting application under section 311
CrPc- Maintainability of -The orders issued
by the trial court on an application filed
under
Section
311
Cr.P.C.
are
interlocutory in nature and a revision
against such order is barred under Section
397(2)
Cr.P.C.-
Even
otherwise
the
availability
of
alternative
remedy
of
revision under Section 397 Cr.P.C. by itself
would not constitute a bar for entertaining
an application under Section 482 Cr.P.C.

As the orders passed by the trial court upon an
application filed u/s 311 of the CrPc are
interlocutory in nature, hence the same can only
be challenged through an application u/s 482 of
the CrPc instead of a criminal revision.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 311 - The power
conferred
has
been
held
to
be
discretionary and is to enable the court to
determine the truth after discovering all
relevant facts and obtaining proper proof
thereof to arrive at a just decision in the
case. The power conferred under Section
311 is to be invoked by the court to meet
the ends of justice, for strong and valid
reasons and it is to be exercised with
great caution and circumspection. The
determinative factor in this regard would
be whether the summoning or recalling of
the witness is in fact, essential to the just
decision of the case keeping in view that
fair trial - which entails the interests of
the accused, the victim and of the society
- is the main object of the criminal
procedure and the court is to ensure that
such
fairness
is
not
hampered
or
threatened in any manner.

The power u/s 311 CrPc, though discretionary,
is
to
be
exercised
sparingly
and
with
circumspection for the just decision of the case
and for ensuring fairness of the trial. ( Para 4,5,
20,21)
Criminal Application rejected. (E-2)

Case Law/ Judgements relied upon:-

1. Seturaman Vs Rajamanickam (2009) 5 SCC
153

2. Dhariwal Tobacco Products Ltd. Vs St. of
Maha., 2009 AIR (SC) 1032

3. Prabhu Chawla Vs St. of Raj. & anr. 2016 AIR
(SC) 4245

4. Mohanlal Shamji Soni Vs U.O.I & anr., AIR
1991 SC 1346

5. U.T. of Dadra & Nagar Haveli Vs Fatehsinh
Mohansinh Chauhan, ( 2006) 7 SCC 529

6. Zahira Habibullah Sheikh & anr. Vs St. of Guj.
& ors., (2004) 4 SCC 158

7. P. Sanjeeva Rao Vs St. of A.P. ( 2012) 7 SCC
56

8. Natasha Singh Vs CBI, (2013) 5 SCC 741

9. Rajaram Prasad Yada Vs St.of Bih. & anr,
(2013) 14 SCC 461

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Atul Tej Kulshrestha,
learned counsel for the applicant and Sri
Ratnendu Kumar Singh, learned Additional
Government Advocate appearing for the
State - opposite party.

2. The present application under
Section 482 Cr.P.C. has been filed seeking
to quash the order dated 11.09.2020 passed
by the learned Additional Sessions Judge,
Court
No.11,
Muzaffarnagar
in
S.T.
No.575 of 2015 (State Vs. Jai Singh and
others), under Section 307 I.P.C., P.S.
Bhopa, District Muzaffarnagar to the extent
that the request for summoning Dr.
Sandeep
Bansal,
Guru
Teg
Bahadur
3 All. Ajmer Vs. State of U.P.
1175
Hospital, Dilshad Garden, Delhi and the
doctors at Anand Hospital, Meerut and
AIIMS Hospital, New Delhi as witnesses to
prove the medical reports prepared by
them, has been refused.

3. In response to an objection taken
by the learned Additional Government
Advocate with regard to the entertainability
of the present application the learned
counsel for the applicant submits that the
order passed by the learned Additional
Sessions Judge under Section 311 Cr.P.C.
is
of
an
interlocutory
nature
and
accordingly the remedy of revision against
the said order is barred in terms of Section
397(2) Cr.P.C. To support his contention
reliance has been placed on the decision in
Seturaman v Rajamanickam1, wherein it
has been held that the orders issued by the
trial court on an application filed under
Section 311 Cr.P.C. are interlocutory in
nature and a revision against such order is
barred under Section 397(2) Cr.P.C. The
relevant observations made in the decision
are as follows:-

"5. Secondly, what was not
realised was that the orders passed by the
trial court refusing to call the documents
and rejecting the application under Section
311 CrPC, were interlocutory orders and as
such, the revision against those orders was
clearly barred under Section 397(2) CrPC.
The trial court, in its common order, had
clearly mentioned that the cheque was
admittedly signed by the respondentaccused and the only defence that was
raised, was that his signed cheques were
lost and that the appellant complainant had
falsely used one such cheque. The trial
court also recorded a finding that the
documents were not necessary. This order
did not, in any, manner, decide anything
finally. Therefore, both the orders i.e. one
on the application under Section 91 CrPC
for production of documents and other on
the application under Section 311 CrPC for
recalling the witness, were the orders of
interlocutory nature, in which case, under
Section 397(2), revision was clearly not
maintainable. Under such circumstances,
the learned Judge could not have interfered
in his revisional jurisdiction..."

4. Having regard to the aforesaid, the
objection with regard to the entertainability
of the petition cannot be sustained
inasmuch as the remedy of revision is not
available against the order passed under
Section 311 Cr.P.C.

5. Even otherwise the availability of
alternative remedy of revision under
Section 397 Cr.P.C. by itself would not
constitute a bar for entertaining an
application under Section 482 Cr.P.C., as
held in Dhariwal Tobacco Products Ltd.
v State of Maharashtra2 and affirmed in
Prabhu Chawla v State of Rajasthan and
another3.

6. As per the case set up by the
applicant/informant, upon an F.I.R. lodged
on 22.07.2014, registered as Case Crime
No.176 of 2014, under Sections 147, 148,
149, 452, 307, 506 I.P.C., P.S. Bhopa,
District Muzaffarnagar, the case was
investigated and Charge Sheet No.261 of
2014 was submitted on 16.10.2014.

7. An application (paper no.175 Kha)
under Section 311 Cr.P.C. is stated to have
been filed by the applicant/informant on
02.09.2020 before the learned Additional
District and Sessions Judge, Court No.11,
Muzaffarnagar wherein it was contended
that certain medical reports had not been
proved and for the said purpose the doctors
may be summoned as witnesses.
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned Additional Sessions Judge
partly allowed the aforesaid application and
summoned the doctor at Meerut for being
examined as witness whereas the request
for summoning the other doctors has been
refused. Aggrieved against the aforesaid
order, the present application has been
preferred.

9. The order passed by the learned
Additional Sessions Judge indicates that
against the application filed by the
applicant/informant,
objections
(paper
no.176 Kha) were filed by the accused
questioning the maintainability of the said
application on the ground that powers
under Section 311 Cr.P.C. were to be
exercised by the court concerned on its
discretion and not at the behest of the
applicant/informant. It was also stated that
the prosecution evidence having already
been
closed
the
application
seeking
summoning of witnesses had been filed
only with a view to delay the proceedings,
and accordingly, the application was liable
to be rejected.

10. The learned Additional Sessions
Judge upon a due consideration of the
material facts and the contentions raised by
the parties has held that the injured, Ashok,
was initially examined at the District
Hospital, Muzaffarnagar and the medical
report was prepared which is on record. He
was thereafter referred to Anand Hospital,
Meerut for further treatment and the doctor
at
the
said
hospital
prepared
a
supplementary report which was also on
record alongwith the case diary. It was only
thereafter that the injured went to Guru Teg
Bahadur
Hospital,
Delhi
for
further
treatment. The court below has held that
the treatment at Delhi was only in respect
of some swelling in his leg and for the
purpose of the case the necessary evidence
by way of the injury reports prepared by
the doctors at Muzaffarnagar and Meerut
were already on record.

11. The court below exercising its
discretion
has
partly
allowed
the
application filed by the applicant/informant
and summoned the medical expert/doctor
from Meerut and held that the subsequent
treatment of the injured at Delhi would not
be of any material consequence to the trial
and accordingly the prayer to summon the
doctor at New Delhi has been declined.

12. Learned counsel for the applicant
has sought to contend that all the doctors in
question having examined the injured and
prepared the medical reports were required
to be summoned and the court below has
erred in allowing the application only for
summoning of one of the doctors. He
submits that the applicant being the
informant there was no question that the
application had been filed to delay the trial.

13. Learned Additional Government
Advocate has controverted the aforesaid
submissions by contending that the power
to summon witnesses under Section 311
Cr.P.C. is purely discretionary and in the
present case the prosecution evidence
having been closed, the application filed by
the applicant/informant could not be said to
be bona fide and the court below having
exercised its discretionary jurisdiction in
the matter no interference was called for.

14. The nature and scope of the power
of the court to summon, examine, recall
and re-examine any witness in the context
of Section 311 Cr.P.C. (and also the
corresponding provision as contained in
Section 540 of the Old Code of 1898) was
subject
matter
of
consideration
in
Mohanlal Shamji Soni v Union of India
3 All. Ajmer Vs. State of U.P.
1177
and another4, and it was held that the
power in this regard is in the widest terms
exercisable at any stage so long as the court
is in seisin of the proceeding as may be
considered essential for a just decision of
the case. It was stated thus:-

"9. The very usage of the words
such as 'any court', 'at any stage', or 'of any
enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells
out that this section is expressed in the
widest possible terms and do not limit the
discretion of the court in any way.
However, the very width requires a
corresponding
caution
that
the
discretionary power 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 for any discretion but it binds and
compels the court to take any of the
aforementioned two steps if the fresh
evidence to be obtained is essential to the
just decision of the case.

10. It is a cardinal rule in the law
of evidence that the best available evidence
should be brought before the court to prove
a fact or the points in issue. But it is left
either for the prosecution or for the defence
to establish its respective case by adducing
the best available evidence and 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 sides.
Nonetheless if either of the parties
withholds any evidence which could be
produced and which, if produced, be
unfavourable to the party withholding such
evidence, the court can draw a presumption
under illustration (g) to Section 114 of the
Evidence Act. In such a situation a question
that arises for consideration is whether the
presiding officer of a court should simply
sit as a mere umpire at a contest between
two parties and declare at the end of the
combat who has won and who has lost or is
there not any legal duty of his own,
independent of the parties, to take an active
role in the proceedings in finding the truth
and administering justice? It is a well
accepted and settled principle that a court
must discharge its statutory functions -
whether discretionary or obligatory -
according to law in dispensing justice
because it is the duty of a court not only to
do justice but also to ensure that justice is
being done. 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 reexamine 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."

15. In U.T. of Dadra and Nagar
Haveli
v
Fatehsinh
Mohansinh
Chauhan5, while considering the power of
the court to summon material witnesses
under Section 311 Cr.P.C., it was held that
the said power can be exercised only with
the object of finding out the truth or
obtaining proper proof of facts which may
lead to a just and correct decision. The
observations made in the judgment in this
regard are as follows:-
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

"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."

16. The nature, scope and object of
Section 311 Cr.P.C. came to be extensively
discussed in Zahira Habibullah Sheikh
(5) and another v State of Gujarat and
others6, and it was held that the underlying
object of the provision 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 observations made in
the judgment are as follows:-

"26. In this context, reference
may be made to Section 311 of the
Criminal Procedure Code which reads as
follows:

"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 reexamine any person already examined; and
the court shall summon and examine or
recall and re-examine any such person if
his evidence appears to it to be essential to
the just decision of the case."

The section is manifestly in two
parts. Whereas the word used in the first
part is "may", the second part uses "shall".
In consequences, the first part gives purely
discretionary authority to a criminal court
and enables it at any stage of an enquiry,
trial or proceeding under the Code (a) to
summon any one as a witness, or (b) to
examine any person present in court, or (c)
to recall and re-examine any person whose
evidence has already been recorded. On the
other hand, the second part is mandatory
and compels the court to take any of the
aforementioned steps if the new evidence
appears to it essential to the just decision of
the case. This is a supplementary provision
enabling, and in certain circumstances
imposing on the court the duty of
examining a material witness who would
not be otherwise brought before it. It is
couched in the widest possible terms and
calls for no limitation, either with regard to
the stage at which the powers of the court
should be exercised, or with regard to the
manner in which it should be exercised. It
is not only the prerogative but also the
plain duty of a court to examine such of
those witnesses as it considers absolutely
necessary for doing justice between the
State and the subject. There is a duty cast
upon the court to arrive at the truth by all
lawful means and one of such means is the
examination of witnesses of its own accord
when for certain obvious reasons either
party is not prepared to call witnesses who
are known to be in a position to speak
important relevant facts.

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
3 All. Ajmer Vs. State of U.P.
1179
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
is whether it is essential to the just decision
of the case. The section is not limited only
for the benefit of the accused, and it will
not be an improper exercise of the powers
of the court to summon a witness under the
section merely because the evidence
supports the case 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 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.

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". This 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..."

17. A similar view was reiterated in
P. Sanjeeva Rao v State of A.P.7, after
referring to the earlier decisions in
Hoffman
Andreas
v
Inspector
of
Customs8, Mohanlal Shamji Soni v
Union of India4 and Maria Margarida
Sequeria Fernandes v Erasmo Jack de
Sequeria9, and it was stated as follows:-

"20. Grant of fairest opportunity
to the accused to prove his innocence is 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: (SCC p. 432, para 6)

"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
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
courts should afford the opportunity to
them in the fairest manner possible."

21. The extent and the scope of
the power of the court to recall witnesses
was examined by this Court in Mohanlal
Shamji Soni v. Union of India 1991 Supp
(1) 271, wherein this Court observed: (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 reexamine 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 and
examination of any person which would
depend on the facts and circumstances of
each case."

22. Discovery of the truth is the
essential purpose of any trial or enquiry,
observed a three-Judge Bench of this Court
in Maria Margarida Sequeira Fernandes v.
Erasmo Jack de Sequeira (2012) 5 SCC
370. A timely reminder of that solemn duty
was given, in the following words: (SCC p.
384, para 35)

"35. What people expect is that
the court should discharge its obligation to
find out where in fact the truth lies. Right
from inception of the judicial system it has
been accepted that discovery, vindication
and establishment of truth are the main
purposes underlying the existence of the
courts of justice."

23. We are conscious of the fact
that recall of the witnesses is being directed
nearly four years after they were examinedin-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
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."

18. Considering the scope and object
of Section 311 Cr.P.C. in Natasha Singh v
CBI10, it was held that the power
conferred is to 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. It was stated as under:-

"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 CrPC 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
3 All. Ajmer Vs. State of U.P.
1181
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 CrPC 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 accused, 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 jeopardised.
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 AIR 1958 SC 376,
Zahira Habibulla H. Sheikh v. State of
Gujarat AIR 2004 SC 3114, Zahira
Habibullah Sheikh (5) v. State of Gujarat
AIR 2006 SC 1367, Kalyani Baskar (Mrs.)
v. M.S. Sampoornam (2007) 2 SCC 258,
Vijay Kumar v. State of U.P (2011) 8 SCC
136 and Sudevanand v. State (2012) 3 SCC
387)"

19. The nature and scope of the
powers to be exercised by the court under
Section 311 Cr.P.C. was elaborately
considered in the case of Rajaram Prasad
Yadav v State of Bihar and another11
and after considering the earlier precedents,
the principles to be followed by the courts
with regard to exercise of powers under the
said section have been explained and
enumerated. It has been stated thus:-

"14. A conspicuous reading of
Section 311 CrPC 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 reexamine any witness already examined. A
reading of the provision shows that the
expression "any" has been used as a prefix
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
prefix 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
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
just decision of the case. Section 138 of the
Evidence Act, prescribed the order of
examination of a witness in the court. The
order of re-examination is also prescribed
calling for such a witness so desired for
such re-examination. Therefore, a reading
of Section 311 CrPC and Section 138
Evidence Act, insofar as it comes to the
question of a criminal trial, the order of reexamination at the desire of any person
under Section 138, will have to necessarily
be in consonance with the prescription
contained in Section 311 CrPC. It is,
therefore, imperative that the invocation of
Section 311 CrPC 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 consider 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.

x x x

17.
From
a
conspectus
consideration of the above decisions, while
dealing with an application under Section
311 CrPC read along with Section 138 of
the Evidence Act, we feel the following
principles will have to be borne in mind by
the courts:

17.1. 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?

17.2. The exercise of the widest
discretionary power under Section 311
CrPC 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.

17.3. 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 re-examine any such person.

17.4. 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 for such
facts, which will lead to a just and correct
decision of the case.

17.5. 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.

17.6. The wide discretionary
power should be exercised judiciously and
not arbitrarily.

17.7. The court must satisfy itself
that it was in every respect essential to
examine such a witness or to recall him for
3 All. Ajmer Vs. State of U.P.
1183
further examination in order to arrive at a
just decision of the case.

17.8. The object of Section 311
CrPC simultaneously imposes a duty on the
court to determine the truth and to render a
just decision.

17.9. 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.

17.10. Exigency of the situation,
fair play and good sense should be the
safeguard, 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.

17.11. 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.

17.12. The additional evidence
must not be received as a disguise or to
change the nature of the case against any of
the party.

17.13. 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.

17.14. The power under Section
311 CrPC 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."

20. The power to summon material
witnesses under Section 311 Cr.P.C. which
falls under Chapter XXIV containing the
general provisions as to inquiries and trials
has been held to confer a very wide power
on the courts for summoning witnesses and
accordingly the discretion conferred is to
be exercised judiciously as wider the power
the greater is the necessity for application
of judicial mind.

21. The power conferred has been
held to be discretionary and is to enable the
court
to
determine
the
truth
after
discovering all relevant facts and obtaining
proper proof thereof to arrive at a just
decision in the case. The power conferred
under Section 311 is to be invoked by the
court to meet the ends of justice, for strong
and valid reasons and it is to be exercised
with great caution and circumspection. The
determinative factor in this regard would be
whether the summoning or recalling of the
witness is in fact, essential to the just
decision of the case keeping in view that
fair trial - which entails the interests of the
accused, the victim and of the society - is
the main object of the criminal procedure
and the court is to ensure that such fairness
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
is not hampered or threatened in any
manner.

22. In the case at hand the court
below has duly considered the facts and
circumstances of the case and the material
evidence
on
record
to
exercise
its
discretionary jurisdiction to partly allow the
application filed by the applicant/informant
to summon the doctor from Meerut who
had examined the injured and prepared the
report which was on record alongwith the
case diary, and taking note of the fact that
the subsequent treatment at Guru Teg
Bahadur Hospital, Delhi and AIIMS
Hospital, New Delhi was only in respect of
some swelling in the leg of the injured and
that the same would not be of any material
consequence to the trial, the request to
summon the other doctors has been
declined.

23. Counsel for the applicant has not
been able to dispute the aforestated legal
position with regard to the exercise of
power of the court under Section 311
Cr.P.C. and has not been able to point out
any material error or illegality in the
exercise of the aforesaid discretion by the
court below so as to warrant interference.

24. Having regard to the aforesaid,
this court is not inclined to exercise its
inherent jurisdiction under Section 482
Cr.P.C. to interfere in the matter.

25.

The
application
stands
accordingly dismissed.
----------
(2021)03ILR A1184
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2021

BEFORE
THE HON'BLE DR.