# Chand Patrakar & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** Criminal Revision No. 3280 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chand-patrakar-anr-revisionists-v-state-of-u-p-anr-46502
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Section 311 - Power to summon material
witness, or examine person -power conferred
under Section 311 should be invoked by the
court only to meet the ends of justice - Power
is to be exercised only for strong and valid
reasons and it should be exercised with great
caution and circumspection - power under this
provision shall not be exercised if the court is
of the view that the application has been filed
as an abuse of the process of law - Prevention
of Corruption Act, 1988 - Section 8/9 .(Para -23
)

Application preferred by revisionist - under Section
311 of the Cr.P.C. - for re-examination of PW1
270 INDIAN LAW REPORTS ALLAHABAD SERIES
(O.P.2) - grounds - Certain important facts could not
be asked from the PW1 - facts were necessary for
adjudication of the criminal case in question - court
below rejected the application - hence revision.

HELD:-Grounds taken in application under Section
311 of the Cr.P.C. are not only vague but they do not
disclose any of the conditions which are necessary for
recalling the witness. Merely on asking the application
under Section 311 of the Cr.P.C. cannot be allowed as
there has to be sufficient reasons behind it. Order
passed by the court below does not suffer from any
manifest illegality in exercise of revisional jurisdiction.
Court cannot substitute its own view, once another
view is possible, that too when there is nothing on
record to show that the view taken by the court
below suffers from manifest error or is palpably
illegal.(Para - 28,31)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,951 of 48,423. This is a partial read: ask again with offset=39951 for what follows._

11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
269

18. The word evidence used under Section
319 (1) of the Code has been held to be
understood to refer to the evidence recorded
during trial, and also any material that has been
received by the court after cognizance is taken
and before the trial commences, to be utilized
for corroboration and to support the evidence
recorded by the court.

19. The evidence recorded by the court
during trial is thus to be accorded primacy and
for the purpose of exercise of power under
Section 319 of the Code would have to be given
weight over the material which was collected
during
the
course
of
investigation.
The
contention which has been sought to be raised
placing reliance upon the material collected by
the investigating officer during the course of
investigation, for the purpose of exercise of
powers under Section 319 of the Code, thus
cannot be accepted.

20. The power under Section 319 of the
Code to summon even those persons who are not
named in the charge-sheet to appear and face
trial, being unquestionable and the object of the
provision being not to allow a person who
deserves to be tried to go scot-free by being not
arraigned in the trial inspite of possibility of his
complicity which can be gathered from the
evidence during the course of trial, the order
passed under Section 319 of the Code
summoning the revisionist does not contain any
material error so as to warrant inference.

21. The aforementioned legal position has
been considered in detail in recent decisions of
this Court in Adesh Tyagi vs. State of U.P. and
Another6 and Upendra @ Mohit vs. State of
U.P. and Another7.

22. Counsel for the applicant at this stage
submits
that
he
does
not
dispute
the
aforementioned legal position with regard to the
exercise of powers under Section 319 of the
Code and states that the applicant would submit
to the jurisdiction of the court below and seek
bail.

23. It goes without saying that in case any
such application is moved, the court below
would be expected to dispose it of in accordance
with the settled principles of law.

24. Subject to the aforesaid observation,
the revision stands dismissed.
----------
(2021)12ILR A269
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3280 of 2021

Chand Patrakar & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Ajay Kumar Mishra

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Section 311 - Power to summon material
witness, or examine person -power conferred
under Section 311 should be invoked by the
court only to meet the ends of justice - Power
is to be exercised only for strong and valid
reasons and it should be exercised with great
caution and circumspection - power under this
provision shall not be exercised if the court is
of the view that the application has been filed
as an abuse of the process of law - Prevention
of Corruption Act, 1988 - Section 8/9 .(Para -23
)

Application preferred by revisionist - under Section
311 of the Cr.P.C. - for re-examination of PW1
270 INDIAN LAW REPORTS ALLAHABAD SERIES
(O.P.2) - grounds - Certain important facts could not
be asked from the PW1 - facts were necessary for
adjudication of the criminal case in question - court
below rejected the application - hence revision.

HELD:-Grounds taken in application under Section
311 of the Cr.P.C. are not only vague but they do not
disclose any of the conditions which are necessary for
recalling the witness. Merely on asking the application
under Section 311 of the Cr.P.C. cannot be allowed as
there has to be sufficient reasons behind it. Order
passed by the court below does not suffer from any
manifest illegality in exercise of revisional jurisdiction.
Court cannot substitute its own view, once another
view is possible, that too when there is nothing on
record to show that the view taken by the court
below suffers from manifest error or is palpably
illegal.(Para - 28,31)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Jamatraj Kewalji Govani Vs St. of Mah., AIR 1968
SC 178.

2. Mohanlal Shamji Soni Vs U.O.I. & anr., 1991 Supp
(1) SCC 271

3. Zahira Habibulla H. Sheikh & anr. Vs St. of Guj. &
ors., (2004)4 SCC 158

4. U.T. of Dadra & Haveli & anr. Vs Fatehsinh
Mohansinh Chauhan, Appeal (Crl.) No. 834 of 2006

5. Vijay Kumar Vs St. of U.P. & anr., 2011 (8) SCC
136

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

7. Natasha Singh Vs C.B.I., 2013(5) SCC 741

8. Rajaram Prasad Yadav Vs St. of Bihar & anr.,
2013(14) SCC 461

9. Mannan Shaikh & ors. Vs St. of W. B. & anr.,
(2014) 13 SCC 59

10. St. (NCT of Delhi) Vs Shiv Kumar Yadav, 2016(2)
SCC 402

11. Ratan Lal Vs Prahlad Jat & ors. , (2017) 9 SCC
340
12. Swapan Kumar Chatterjee Vs C.B.I., 2019 (14)
SCC 328

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Ajay Kumar Mishra, learned
counsel for the revisionist as well as Sri L.D.
Rajbhar, who appears for the opposite party
no.1.

2. This is a revision under Section 397/401
of the Cr.P.C. challenging the order dated
13.10.2021 passed by Special Judge (P.C.Act)
Court No.2/Additional Sessions Judge, Bareilly
in Special Case No. 3 of 2018 arising out of
Case Crime No.154 of 2016 under Section 8/9
Prevention of Corruption Act (State Vs Chand
Patrakar and another), P.S. Hasanpur, District
Amroha by which the court below has rejected
the application preferred by the revisionist under
Section 311 of the Cr.P.C.

3. Briefly stated facts are that an FIR was
lodged by the opposite party no.2 against the
revisionists, who are two in numbers, on
10.4.2016 before the P.S. Hasanpur, District
Amroha being Case Crime No.154 of 2016 with
an allegation that against the opposite party no.2
and their relatives, a case relating to dowry was
lodged and which was under investigation by
C.O. Hasanpur and about 7 to 8 days prior to the
lodging of the present FIR one Latif (Milkman)
had recommended the name of the revisionist
and a meeting also arranged with them wherein
the issue with regard to the expunging the name
of the opposite party no.2 and her daughters was
discussed in lieu of payment of certain amounts.
A demand of Rs.1,00,000/- was raised by the
revisionist and the opposite party no.2 thereafter
pledged her jewellery and paid an amount of
Rs.30,000/- to the revisionist and an amount of
Rs.70,000/- was balance which was to be paid
subsequently. However, the proceedings went
against the opposite party no.2 and her family
despite the fact according to the opposite party
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
271
no.2, she had made the payment for expunging
away her name from the criminal proceedings as
nothing was done by the revisionist, so above
noted FIR was lodged.

4. The investigation was conducted by
the Investigating Officer and charge sheet was
submitted against the revisionist on 5.5.2016
in Case Crime No.154 of 2016, 8/9 of the
Prevention
of
Corruption
Act
reference
whereof has been given in para-4 of the
application.

5. It appears that the statement of the
PW1 Atarkali (opposite party no.2) was
recorded on 19.4.2018 itself and thereafter the
statements of PW2 to PW7 have also been
recorded. The revisionists as per own showing
have annexed annexure-3 at page 40 of the
paper book an application purported to be
under Section 311 of the Cr.P.C. for recalling
and re-examine of PW1 (O.P. No.2) The said
application has now been rejected while
passing the order dated 13.10.2021 which is
under challenge. \

6. Before the proceeding further it is apt
to quote the provisions contained in Section
311 of the Cr.P.C:

"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."

7. A plain reading of Section 311 of the
Cr.P.C. itself shows that any court may, at any
stage of any inquiry, trial or other proceedings
under said Code, summon any person as a
witness or examine any person in attendance,
though not summoned as a witness, recall and
reexamine any person already examined and
the court shall summon, examine or recall and
re-examine any such person if his evidence
appears to be essential to the just decision of
the case.

8. The legislature was quiet conscious
about the employment of the word "at any
stage of any inquiry", "trial or other
proceedings under this Code" as well as "if his
evidence appears to it to be essential to the
just decision of the case."

9. Section 311 of the Code of Criminal
Procedure, 1973 is the incarnation of the
provisions contained under Section 540 under
Chapter XLVI of the Code of Criminal
Procedure, 1898 (hereinafter referred to as the
Old Code).

10. Section 540 of the Old Code is being
quoted hereinunder:

"540 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 essential to the just decision of
the case."

11. The provisions contained under
Section 540 of the Old Code was subject
matter of consideration in the case of
Jamatraj Kewalji Govani Vs. State of
Maharashtra, reported in AIR 1968 SC 178.
272 INDIAN LAW REPORTS ALLAHABAD SERIES
The Hon'ble Apex Court in paragraph-10 of
the said case has held as under:-

"10. Section 540 is intended to be wide
as the repeated use of the word 'any' throughout
its length clearly indicates. The section is in two
parts. The first part gives a discretionary power
but the latter part is mandatory. The use of the
word 'may' in the first part and of the word
'shall' in the second firmly establishes this
difference. Under the first part, which is
permissive, the court may act in one of three
ways : (a) summon any person as a witness,

(b) examine any person present in
court although not sum- moned, and (c) recall or
re-examine a witness already examined. The
second part is obligatory and compels the Court
to act in these three ways or any one of them, if
the just decision of the case demands it. As the
section stands there is no limitation on the
power of the Court arising from the stage to
which the trial may have reached, provided the
Court is bona fide of the opinion that for the just
decision of the case, the step must be taken. It is
clear that the requirement of just decision of the
case does not limit the action to something in the
interest of the accused only. The action may
equally benefit the prosecution."

12. In the case of Mohanlal Shamji Soni
Vs. Union of India and another, reported in
1991 Supp (1) SCC 271, the Hon'ble Apex
Court in paragraphs 7, 9, 10 and 27 has observed
as under:

"7. Section 540 was found in Chapter
XLVI of the old Code of 1898 under the heading
'Miscellaneous'. But the present corresponding
Section 311 of the new Code is found among
other Sections in Chapter XXIV under the
heading 'General Provisions as to Enquiries and
Trials'. Section 311 is an almost verbatim
reproduction of Section 540 of the old Code
except for the insertion of the words 'to be'
before the word "essential" occurring in the old
Section. This section is manifestly in two parts.
Whereas the word 'used' in the first part is 'may'
the word used in the second part is 'shall'. In
consequence, the first part which is permissive
gives purely discretionary authority to the
Criminal Code and enables it at any stage of
enquiry, trial or other proceedings' under the
Code to act in one of the three ways, namely, (1)
to summon any person as a witness or (2) to
examine any person in attendance, though not
summoned as a witness, or (3) to recall and reexamine any person already examined.

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 with-holds
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
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
273
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 functionswhether 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 re-examine any person in
attendance though not summoned as a witness
or recall and re-examine 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.

27. The principle of law that emerges
from the views expressed by this Court in the
above decisions is that the Criminal Court has
ample power to summon any person as a witness
or recall and re-examine any such person even if
the evidence on both sides is closed and the
jurisdiction of the court must obviously be dictated
by exigency of the situation, and fair-play and
good sense appear to be the only safe guides and
that only the requirements of justice command and
examination of any person which would depend on
the facts and circumstances of each case.

13. In the case of Zahira Habibulla H.
Sheikh and another Vs. State of Gujarat and
others, reported in (2004)4 SCC 158, the
Hon'ble Apex Court in paragraphs- 43 and 46
has observed as under: -

"43. The Courts have to take a
participatory role in a trial. They are not
expected to be tape recorders to record
whatever is being stated by the witnesses.
Section 311 of the Code and Section 165 of the
Evidence Act confer vast and wide powers on
Presiding Officers of Court to elicit all
necessary materials by playing an active role in
the evidence collecting process. They have to
monitor the proceedings in aid of justice in a
manner that something, which is not relevant, is
not unnecessarily brought into record. Even if
the prosecutor is remiss in some ways, it can
control the proceedings effectively so that
ultimate objective i.e. truth is arrived at. This
becomes more necessary where the Court has
reasons to believe that the prosecuting agency
or the prosecutor is not acting in the requisite
manner. The Court cannot afford to be wishfully
or pretend to be blissfully ignorant or oblivious
to such serious pitfalls or dereliction of duty on
the part of the prosecuting agency. The
prosecutor who does not act fairly and acts
more like a counsel for the defence is a liability
to the fair judicial system, and Courts could not
also play into the hands of such prosecuting
agency showing indifference or adopting an
attitude of total aloofness."

"46. Ultimately, as noted above, ad
nauseam the duty of the Court is to arrive at the
truth and subserve the ends of justice. Section
311 of the Code does not confer any party any
right to examine, cross-examine and re-examine
any witness. This is a power given to the Court
not to be merely exercised at the bidding of any
one party/person but the powers conferred and
discretion vested are to prevent any irretrievable
or immeasurable damage to the cause of society,
public interest and miscarriage of justice.
Recourse may be had by Courts to power under
this section only for the purpose of discovering
274 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant facts or obtaining proper proof of such
facts as are necessary to arrive at a just decision
in the case."

14. In the case of U.T. of Dadra & Haveli
&
another
Vs.
Fatehsinh
Mohansinh
Chauhan, in Appeal (Crl.) No. 834 of 2006,
decided on 14.8.2006, the Hon'ble Supreme
Court had in paragraph observed as under:

"12. A conspectus of authorities
referred to above would show that the principle
is well settled that 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 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 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."

15. In the case of Vijay Kumar vs. State of
U.P. and another, reported in 2011 (8) SCC
136, the provisions contained under Section 311
of the Code of Criminal Procedure was
considered and the Hon'ble Court in paragraphs14 and 17 has held as under: -

"14. There is no manner of doubt that
the power under Section 311 of Code of
Criminal Procedure is a vast one. This power
can be exercised at any stage of the trial. Such a
power should be exercised provided the
evidence which may be tendered by a witness is
germane to the issue involved, or if proper
evidence is not adduced or relevant material is
not brought on record due to any inadvertence.
It hardly needs to be emphasized that power
under Section 311 should be exercised for the
just decision of the case. The wide discretion
conferred on the court to summon a witness
must be exercised judicially, as wider the power,
the greater is the necessity for application of the
judicial mind. Whether to exercise the power or
not would largely depend upon the facts and
circumstances of each case. As is provided in the
Section, power to summon any person as a
witness can be exercised if the court forms an
opinion that the examination of such a witness is
essential for just decision of the case.

17. Though Section 311 confers vast
discretion upon the court and is expressed in the
widest possible terms, the discretionary power
under the said Section can be invoked only for
the ends of justice. Discretionary power should
be exercised consistently with the provisions of
the Code and the principles of criminal law. The
discretionary power conferred under Section
311 has to be exercised judicially for reasons
stated by the Court and not arbitrarily or
capriciously. Before directing the learned
Special Judge to examine Smt. Ruchi Saxena as
a court witness, the High Court did not examine
the reasons assigned by the learned Special
Judge as to why it was not necessary to examine
her as a court witness and has given the
impugned direction without assigning any
reason."

16. In the case of P. Sanjeeva Rao Vs.
State of Andhra Pradesh, reported in 2012(7)
SCC 56, the Hon'ble Apex Court has observed
as under:

"19. The nature and extent of the
power vested in the Courts under Section 311
Cr.P.C. to recall witnesses was examined by this
Court in Hanuman Ram v. The State of
Rajasthan & Ors. (2008) 15 SCC 652. This
Court held that the object underlying Section
311 was to prevent failure of justice on account
of a mistake of either party to bring on record
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
275
valuable evidence or leaving an ambiguity in the
statements
of
the
witnesses.
This
Court
observed:

"7. ... ''26. ... 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 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 of the
prosecution and not that of the accused. The
section is a general section which applies to all
proceedings, enquires and trials under the Code
and empowers the Magistrate to issue summons to
any witness at any stage of such proceedings, trial
or enquiry. In Section 311 the significant
expression that occurs is "at any stage of inquiry
or trial or other proceeding under this Code". It is,
however, to be borne in mind that whereas the
section confers a very wide power on the Court on
summoning witnesses, the discretion conferred is
to be exercised judiciously, as the wider the power
the greater is the necessity for application of
judicial mind." (emphasis supplied)

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:

"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." (emphasis
supplied)

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 & Anr. 1991 Supp (1) 271,
where this Court observed:

"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 fairplay 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." (emphasis supplied)

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
Sequeria
Fernandes
v.
Erasmo Jack de Sequeria through LRs. 2012 (3)
SCALE 550. A timely reminder of that solemn
duty was given, in the following words:
276 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 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
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."

17. In the matter of Natasha Singh Vs.
CBI, reported in 2013(5) SCC 741, the Hon'ble
Apex Court after analyzing the law relating to
Section 311 of the CrPC in paragraphs- 20, 21
and 22 has observed as under: -

"20. Undoubtedly, an application filed
under Section 311 Cr.P.C. must be allowed if
fresh evidence is being produced to facilitate a
just decision, however, in the instant case, the
learned Trial Court prejudged the evidence of
the witness sought to be examined by the
appellant, and thereby cause grave and material
prejudice to the appellant as regards her
defence, which tantamounts to a flagrant
violation of the principles of law governing the
production of such evidence in keeping with the
provisions of Section 311 Cr.P.C. By doing so,
the Trial Court reached the conclusion that the
production of such evidence by the defence was
not essential to facilitate a just decision of the
case.
Such
an
assumption
is
wholly
misconceived, and is not tenable in law as the
accused has every right to adduce evidence in
rebuttal of the evidence brought on record by
the prosecution. The court must examine
whether such additional evidence is necessary to
facilitate a just and proper decision of the case.
The examination of the hand-writing expert may
therefore be necessary to rebut the evidence of
Rabi Lal Thapa (PW.40), and a request made
for his examination ought not to have been
rejected on the sole ground that the opinion of
the hand-writing expert would not be conclusive.
In such a situation, the only issue that ought to
have been considered by the courts below, is
whether the evidence proposed to be adduced
was relevant or not. Identical is the position
regarding the panchnama witness, and the court
is justified in weighing evidence, only and only
once the same has been laid before it and
brought on record. Mr. B.B. Sharma, thus, may
be in a position to depose with respect to
whether the documents alleged to have been
found, or to have been seized, were actually
recovered or not, and therefore, from the point
of view of the appellant, his examination might
prove to be essential and imperative for
facilitating a just decision of the case.

21. The High Court has simply quoted
relevant paragraphs from the judgment of the
Trial Court and has approved the same without
giving proper reasons, merely observing that the
additional evidence sought to be brought on
record was not essential for the purpose of
arriving at a just decision. Furthermore, the
same is not a case where if the application filed
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
277
by the appellant had been allowed, the process
would have taken much time. In fact, disallowing
the said application, has caused delay. No
prejudice would have been caused to the
prosecution, if the defence had been permitted to
examine said three witnesses.

22. In view of above, the appeal
succeeds and is allowed. The judgment and
order of the Trial Court, as well as of the High
Court impugned before us, are set aside. The
application under Section 311 Cr.P.C. filed by
the appellant is allowed. The parties are
directed to appear before the learned Trial
Court on the 17th of May, 2013, and the learned
Trial Court is requested to fix a date on which
the appellant shall produce the three witnesses,
and the same may thereafter be examined
expeditiously in accordance with law, and
without causing any further delay. Needless to
say that the prosecution will be entitled to cross
examine them."

18. Further in the matter of Rajaram
Prasad Yadav vs. State of Bihar and another,
reported in 2013(14) SCC 461, the Hon'ble
Supreme Court had considered the provisions
contained under Section 311 and has held in
paragraph-14 as under:

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 reexamination. 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
consider and ensure that such recall and reexamination 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 reexamined 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."

19. In the matter of Mannan Shaikh and
others vs. State of West Bengal and another,
reported in (2014) 13 SCC 59, the Hon'ble Apex
Court had the occasion to further consider the
278 INDIAN LAW REPORTS ALLAHABAD SERIES
provision contained under Section 311 of CrPC
and in paragraphs-12, 16 and 17, has observed
as under: -

"12. 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 reexamine 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 re- examination 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 a 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.

16. If we view the present case in light
of the above judgments, we will have to sustain
the High Court's order. PW15-SI Dayal
Mukherjee stated in the court that he had
recorded the statement of deceased Rupchand
Sk. Thus, this fact was known to the defence. He
was
cross-examined
by
the
defence.
Inadvertently, the said statement was not
brought on record through PW15-SI Dayal
Mukherjee. Rupchand Sk died after the said
statement was recorded. The said statement,
therefore, became very vital to the prosecution.
It is obvious that the prosecution wants to treat
it as a dying declaration. Undoubtedly,
therefore, it is an essential material to the just
decision of the case. Though, the fact of the
recording of this statement is deposed to by
PW15-SI Dayal Mukherjee, since due to
oversight it was not brought on record,
application was made under Section 311 of the
Code praying for recall of PW15-SI Dayal
Mukherjee. This cannot be termed as an
inherent weakness or a latent wedge in the
matrix of the prosecution case. No material is
tried to be brought on record surreptitiously to
fill-up the lacuna. Since the accused knew that
such a statement was recorded by PW15-SI
Dayal Mukherjee, no prejudice can be said to
have been caused to the accused, who will
undoubtedly get a chance to cross-examine
PW15-SI Dayal Mukherjee.

17. It is true that PW15-SI Dayal
Mukherjee was once recalled but that does not
matter. It does not prevent his further recall.
Section 311 of the Code does not put any such
limitation on the court. He can still be recalled if
his evidence appears to the court to be essential
to the just decision of the case. In this
connection we must revisit Rajendra Prasad
where this Court has clarified that the court can
exercise power of re- summoning any witness
even if it has exercised the said power earlier.
Relevant observations of this Court run as
under:

"We cannot therefore accept the
contention of the appellant as a legal
proposition that the court cannot exercise power
of resummoning any witness if once that power
was exercised, nor can the power be whittled
11 All. Chand Patrakar & Anr. Vs. State of U.P. & Anr.
279
down merely on the ground that the prosecution
discovered laches only when the defence
highlighted them during final arguments. The
power of the court is plenary to summon or even
recall any witness at any stage of the case if the
court considers it necessary for a just decision.
The steps which the trial court permitted in this
case for resummoning certain witnesses cannot
therefore be spurned down or frowned at."

20. In the case of State (NCT of Delhi)
Vs. Shiv Kumar Yadav, reported in 2016(2)
SCC 402, the Hon'ble Apex Court in paragraph27 has held as under:-

"It is difficult to approve the view
taken by the High Court. Undoubtedly, fair trial
is the objective and it is the duty of the court to
ensure such fairness. Width of power under
Section 311 Cr.P.C. is beyond any doubt. Not a
single specific reason has been assigned by the
High Court as to how in the present case recall
of as many as 13 witnesses was necessary as
directed in the impugned order. No fault has
been found with the reasoning of the order of the
trial court. The High Court rejected on merits
the only two reasons pressed before it that the
trial was hurried and the counsel was not
competent. In the face of rejecting these
grounds, without considering the hardship to the
witnesses, undue delay in the trial, and without
any other cogent reason, allowing recall merely
on the observation that it is only the accused
who will suffer by the delay as he was in custody
could, in the circumstances, be hardly accepted
as valid or serving the ends of justice. It is not
only matter of delay but also of harassment for
the witnesses to be recalled which could not be
justified on the ground that the accused was in
custody and that he would only suffer by
prolonging of the proceedings. Certainly recall
could be permitted if essential for the just
decision but not on such consideration as has
been adopted in the present case.