Allahabad High Court

: Rajeev Kumar Srivastava : G.A. Court No. - 92 HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

1. By means of present application u/s 528 BNSS, the applicant has prayed for quashing the impugned order 18.8.2025 passed by Additional Sessions Judge/FTC No. 2, Gorakhpur, under Section 311 Cr.P.C. (Section 348 BNSS) in S.T. No. 266 of 2010, P.S. Chauri Chaura, District Gorakhpur arising out of Case Crime no. 1030 of 2007, under section 394 IPC, whereby application under section 311 Cr.P.C. has been allowed and the learned court below has summoned SI Kamlesh Singh and SHO Rajesh Kumar Singh, police personnel to prove the weapon of offence (material evidence) and fixed the case for examination.

2. Heard learned counsel for the applicant and learned AGA for the State.

3. Learned counsel for the applicant submits that the application under section 311 Cr.P.C. has been filed by the prosecution side with highly belated stage when entire prosecution evidence was closed; evidence of accused persons were recorded; opportunity of cross examination was closed and part arguments were heard. The application under section 311 Cr.P.C. has been allowed by the impugned order which has been filed only to fill up lacunae of prosecution case, which is not permissible under law. Learned counsel placed reliance on the judgement of Hon'ble Supreme Court in Ratan Lal vs. Prahlad Jat and others, 2017 0 Supreme (SC) 936, wherein, Hon'ble Court has observed as under:-

16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is 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, 2 NA528 No. 33686 of 2025 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”.

17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.

18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:- justice. Discretionary power “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 should be exercised consistently with the provisions of CrPC 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”.

21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- “Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months 3 NA528 No. 33686 of 2025 after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross- examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed”.

4. The aforesaid case was a murder trial against respondent nos. 1 and 2 and three others; the statement of 28 witnesses have been recorded in the trial. Thereafter, accused- respondents had filed application under section 311 Cr.P.C. for re-recording their statement on the ground that the previous statement was made under the influence of police; in the application, the witnesses have stated that respondent no. 1 and 2 had no role in the incident; the witnesses who were sought to be re-cross examined, were already cross examined at length; the Sessions Judge had dismissed the application observing that the witnesses were also cross examined at length and it cannot be said that they were in any kind of pressure and the applications were filed with a view to favour the accused persons; the two accused persons moved the petition before the High Court for quashing the said order and the High Court has allowed the applications filed by the witnesses and in that perspective Hon'ble Apex Court has made above observations.

5. Learned AGA submitted that there is no illegality or perversity in the impugned order passed by the court below and it need not to be interfered in present case.

6. In present case, undoubtedly, the application under section 311 Cr.P.C. has been filed at the belated stage after closing evidence of both sides and at the stage of remaining final argument. However, this fact cannot be lost sight that the weapon of offence in a murder trial is an important piece of evidence and the prosecution must have opportunity to do so by the police official who were recovered the same. Recovery memo of the said weapon has already been proved as Ex-K-1 during prosecution evidence; fate of criminal trial should not suffer due to inadvertence of prosecution. In case, learned trial court would not have allowed the application under section 311 Cr.P.C. the prosecution will be deprived of opportunity to prove a material evidence, which is essential for the just decision of the case.

7. Section 311 Cr.P.C. provides that 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.

8. Hon'ble Supreme Court in Mohanlal Shamji Soni vs. Union of India, 4 NA528 No. 33686 of 2025 AIR 1991 SC 1346, held that the power of the court to summon any person as a witness or recall and re-examine any such person, can be invoked even if the evidence on both sides is closed so long as court detains seisine of the court proceedings. In present case, learned court below has invoked jurisdiction under section 311 Cr.P.C. which confers ample power to trial court to summon any person as a witness or recall or re-examine any person who have already been examined if his evidence appears to be essential to the just decision of the case. Learned court below has assigned cogent reason in paragraph-9 of the impugned order and that cannot be said as perverse or contrary to law. I find no merits in the present case and thus it deserves to be dismissed.

9. Before parting with present case it is pertinent to observe that the case is pending since 2012 and the application under section 311 Cr.P.C. has been allowed by order dated 18.8.2025, therefore, it is directed that examination of two witnesses will be concluded by the trial court and every effort be made by prosecution to produce said witnesses before the court without any further delay; the examination will be concluded preferably within two months so that the case may be decided on merits.

10. The instant application is dismissed with above observations. September 19, 2025 Dhirendra/ (Ram Manohar Narayan Mishra,J.)

: Rajeev Kumar Srivastava : G.A. Court No. - 92 HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

1. By means of present application u/s 528 BNSS, the applicant has prayed for quashing the impugned order 18.8.2025 passed by Additional Sessions Judge/FTC No. 2, Gorakhpur, under Section 311 Cr.P.C. (Section 348 BNSS) in S.T. No. 266 of 2010, P.S. Chauri Chaura, District Gorakhpur arising out of Case Crime no. 1030 of 2007, under section 394 IPC, whereby application under section 311 Cr.P.C. has been allowed and the learned court below has summoned SI Kamlesh Singh and SHO Rajesh Kumar Singh, police personnel to prove the weapon of offence (material evidence) and fixed the case for examination.

2. Heard learned counsel for the applicant and learned AGA for the State.

3. Learned counsel for the applicant submits that the application under section 311 Cr.P.C. has been filed by the prosecution side with highly belated stage when entire prosecution evidence was closed; evidence of accused persons were recorded; opportunity of cross examination was closed and part arguments were heard. The application under section 311 Cr.P.C. has been allowed by the impugned order which has been filed only to fill up lacunae of prosecution case, which is not permissible under law. Learned counsel placed reliance on the judgement of Hon'ble Supreme Court in Ratan Lal vs. Prahlad Jat and others, 2017 0 Supreme (SC) 936, wherein, Hon'ble Court has observed as under:-

16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is 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, 2 NA528 No. 33686 of 2025 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”.

17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.

18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:- justice. Discretionary power “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 should be exercised consistently with the provisions of CrPC 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”.

21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- “Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months 3 NA528 No. 33686 of 2025 after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross- examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed”.

4. The aforesaid case was a murder trial against respondent nos. 1 and 2 and three others; the statement of 28 witnesses have been recorded in the trial. Thereafter, accused- respondents had filed application under section 311 Cr.P.C. for re-recording their statement on the ground that the previous statement was made under the influence of police; in the application, the witnesses have stated that respondent no. 1 and 2 had no role in the incident; the witnesses who were sought to be re-cross examined, were already cross examined at length; the Sessions Judge had dismissed the application observing that the witnesses were also cross examined at length and it cannot be said that they were in any kind of pressure and the applications were filed with a view to favour the accused persons; the two accused persons moved the petition before the High Court for quashing the said order and the High Court has allowed the applications filed by the witnesses and in that perspective Hon'ble Apex Court has made above observations.

5. Learned AGA submitted that there is no illegality or perversity in the impugned order passed by the court below and it need not to be interfered in present case.

6. In present case, undoubtedly, the application under section 311 Cr.P.C. has been filed at the belated stage after closing evidence of both sides and at the stage of remaining final argument. However, this fact cannot be lost sight that the weapon of offence in a murder trial is an important piece of evidence and the prosecution must have opportunity to do so by the police official who were recovered the same. Recovery memo of the said weapon has already been proved as Ex-K-1 during prosecution evidence; fate of criminal trial should not suffer due to inadvertence of prosecution. In case, learned trial court would not have allowed the application under section 311 Cr.P.C. the prosecution will be deprived of opportunity to prove a material evidence, which is essential for the just decision of the case.

7. Section 311 Cr.P.C. provides that 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.

8. Hon'ble Supreme Court in Mohanlal Shamji Soni vs. Union of India, 4 NA528 No. 33686 of 2025 AIR 1991 SC 1346, held that the power of the court to summon any person as a witness or recall and re-examine any such person, can be invoked even if the evidence on both sides is closed so long as court detains seisine of the court proceedings. In present case, learned court below has invoked jurisdiction under section 311 Cr.P.C. which confers ample power to trial court to summon any person as a witness or recall or re-examine any person who have already been examined if his evidence appears to be essential to the just decision of the case. Learned court below has assigned cogent reason in paragraph-9 of the impugned order and that cannot be said as perverse or contrary to law. I find no merits in the present case and thus it deserves to be dismissed.

9. Before parting with present case it is pertinent to observe that the case is pending since 2012 and the application under section 311 Cr.P.C. has been allowed by order dated 18.8.2025, therefore, it is directed that examination of two witnesses will be concluded by the trial court and every effort be made by prosecution to produce said witnesses before the court without any further delay; the examination will be concluded preferably within two months so that the case may be decided on merits.

10. The instant application is dismissed with above observations. September 19, 2025 Dhirendra/ (Ram Manohar Narayan Mishra,J.)