Bombay High Court
Mohd. Sharik Sheikh S/O Haji Abdul ... vs Shabana Parvin Sheikh W/O Mohd. Sharik ... on 4 November, 2025
2025:BHC-NAG:11422
1 31-Cr.WP-361-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 361 OF 2024
Mohd. Sharik Sheikh S/o Haji Abdul Qayyum
-- VERSUS --
Shabana Pravin Sheikh W/o Mohd. Sharik Sheikh and Another
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. N.G. Moharir, Advocate for the Petitioner.
Mr. A.Gawande, Advocate h/f Mr. J.M. Gandhi, Advocate for
the Respondent Nos.1 and 2.
CORAM : M.M. NERLIKAR, J.
DATE : NOVEMBER 04, 2025.
Heard the learned counsel for both the
parties.
2. The impugned order dated 20/02/2024
passed below Exh.-67 by the learned Judge, Family
Court, Nagpur, Court No.4, is under challenge.
3. The learned counsel for the petitioner
submits that the ground raised by the respondent was
that due to high fever of his counsel, he was not able
to properly cross-examine the original petitioner
(respondent herein). He submits that certain
questions remained to be asked by him, and
therefore, he prayed for recall of the witness in the
interest of justice.
2 31-Cr.WP-361-2024
4. On the other hand, the learned
counsel for the respondent submits that the case
pertains of the year 2015 and sufficient opportunity
had already been granted for cross-examination.
However, on 24/07/2023, a "no cross" order was
passed, which was subsequently set aside, and the
matter was again posted for cross-examination.
Therefore, it cannot be said that sufficient
opportunity for cross-examination was not granted.
He further submits that it is only a delaying tactic as
the matter arises out of a matrimonial dispute.
Accordingly, he prayed for rejection of the present
petition.
5. After hearing both the counsels, it
appears that the petitioner has been granted
sufficient opportunity for cross-examination. Further,
there is nothing on record to show that on the
relevant date the counsel was unwell. The only
ground put forth was that the counsel for the
petitioner was suffering from high fever and
infection, and therefore, was not physically fit to
cross-examine the respondent herein.
6. Further, it is to be noted that a "no
cross" order had already been passed, which was
subsequently set aside. Under such circumstances,
Section 311 of the Code of Criminal Procedure
ensures that the Court must arrive at a just and
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correct decision by obtaining a clear picture of the
facts. For this purpose, the Court may examine any
witness at any stage. If the evidence of such a witness
appears to it to be essential to the just decision of the
case, meaning thereby powers should be exercised
judiciously and also with extreme care and caution.
7. The Supreme Court in the case of
Rajaram Prasad Yadav VS State of Bihar and Another,
(2013) 14 SCC 461, in paragraph No.17 has culled
out parameters/guidelines with respect to Section
311, which are as follows:-
"17. From a conspectus consideration of the
above decisions, while dealing with an application
under Section 311 Cr.P.C. read along with Section
138 of the Evidence Act, we feel the following
principles will have to be borne in mind by the
Courts:
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 Cr.P.C. should ensure
that the judgment should not be rendered on
inchoate, inconclusive speculative presentation of
facts, as thereby the ends of justice would be
defeated.
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.
4 31-Cr.WP-361-2024
17.4 The exercise of power under Section
311 Cr.P.C. should be resorted to only with the
object of finding out the truth or obtaining proper
proof for such facts, which will lead to a just and
correct decision of the case.
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 further examination in
order to arrive at a just decision of the case.
17.8 The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court to
determine the truth and to render a just decision.
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 safe guard, while
exercising the discretion. The Court should bear in
mind that no party in a trial can be foreclosed
from correcting errors and that if proper evidence
was not adduced or a relevant material was not
brought on record due to any inadvertence, the
Court should be magnanimous in permitting such
mistakes to be rectified.
17.11 The Court should be conscious of the
position that after all the trial is basically for the
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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 Cr.P.C.
must therefore, be invoked by the Court only in
order to meet the ends of justice for strong and
valid reasons and the same must be exercised with
care, caution and circumspection. The Court
should bear in mind that fair trial entails the
interest of the accused, the victim and the society
and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right."
8. It would also be useful to refer to the
judgment of the Supreme Court in the case of Neha
Begum & Ors. VS The State of Assam and Anr.,
(Special Leave to Appeal No.3910/2024). The
Supreme Court, while considering the scope of
Section 311, held that the powers under Section 311
6 31-Cr.WP-361-2024
cannot be exercised to fill in the lacunae. Further, it
was held that lawyer engaged by the petitioners did
not conduct proper cross-examination of the
witnesses cannot be considered to be a valid ground
for the trial court to invoke power under Section 311
Cr.P.C.
9. Under these circumstances, failure on
the part of the counsel representing the petitioner /
original respondent to put proper questions in cross-
examination of the witness, when he had the
opportunity, thereby citing his illness that he was not
fit cannot be a ground for recalling of the witness. In
this view of the matter, there is no merit in the
petition. The impugned order does not require any
interference, and hence, the present petition is
dismissed.
[ M.M. NERLIKAR, J ]
Piyush Mahajan
