Madhya Pradesh High Court
Sunil Adiwasi vs The State Of Madhya Pradesh on 12 August, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
1 MCRC-27925-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 12th OF AUGUST, 2025
MISC. CRIMINAL CASE No. 27925 of 2025
SUNIL ADIWASI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Raghuwanshi - Advocate for petitioner.
Shri Deependra Singh Kushwah - Additional Advocate General for
respondent/State.
ORDER
The inherent powers of this Court under Section 528 of BNSS (482 of
Cr.P.C.) are invoked to assail interlocutory order dated 13.05.2025 passed by
18th Additional Sessions Judge, District Gwalior whereby an application
under Section 311 of Cr.P.C. preferred by the accused/petitioner for recalling
and re-cross-examination of PW-7 namely Abhishek Korku by assigning the
reason that during recording of testimony of the said witnesses, certain
relevant questions were not put to him, has suffered dismissal.
2. Learned counsel for the petitioner has submitted that a perusal of the
testimony of the aforesaid witness reveals that no effective cross-
examination has been made by the counsel who was representing the
accused. It was not the complainant but his friend; Kishan who was allegedly
available at the place of incident and had witnessed the alleged commission
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
2 MCRC-27925-2025
of offence. Therefore, the re-cross-examination of the said witness had to be
carried out in order to bring out the varacity of facts as the said witness is an
essential witness for just decision of the case. It is contended that it is the
right of the accused to effectively cross-examine the witness to bring out the
truth because cross-examination is only tool in the hand of the accused by
which truth can be elucidated. Thus, it is prayed that present petition be
allowed and the impugned order dated13.05.2025 passed by 18th Additional
Sessions Judge, District Gwalior be set-aside.
3. On the other hand, learned counsel for the State has submitted that
Abhishek Korku (PW-7) has already been fully examined in chief and cross-
examined in open Court by the counsel for the accused. When once witness
has been examined and cross- examined fully, he cannot be re-called for
further cross-examination to fill up the lacuna and to bolster his argument
learned counsel has placed reliance on the judgment passed in the case
o f Rajaram Prasad Yadav vs State Of Bihar & Anr, reported in 2013(14)
SCC 461 and has contended that powers conferred under Section 311 of
Cr.P.C. must be invoked by the Court only in order to meet the ends of
justice for strong and valid reasons. The same must be exercised with care
and caution and circumspection. Therefore, no illegality has been committed
by learned trial Court in rejecting the application filed by the petitioner under
Section 311 of Cr.P.C..
4. Learned counsel for rival parties are heard on the question of
admission.
5. Before delving deep into the matter, this Court find it expedient
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
3 MCRC-27925-2025
to quote Section 311 of CrPC for ready reference which reads as under:-
311. Power to summon material witness, or examine Person
Present:- Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or
examine any person in attendance, though not summoned, as a
witness, or recall and re-examine any person already examined ;
and the Court shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be essential to the
just decision of the case.
6. From the plain reading of this Section, it is clear that the witness
cannot be recalled unless and until the Court comes to the conclusion that
his/her further cross-examination is necessary to the just decision of the case.
The petitioner has not pointed out any circumstance to indicate that full
opportunity was not given to the petitioner to cross-examine the said witness.
So far as the prayer of the petitioner seeking re-cross-examination of
Abhishek Korku (PW-7) on the ground of asking questions with regard to
presence of his friend Kishan on the spot is concerned, in Para 13 and 14 of
the cross-examination of the said PW, he has clearly deposed in this regard.
A witness cannot be recalled merely on the saying of an accused. The
application filed by the petitioner for recalling of aforesaid PW appears to be
an attempt to fill up the lacuna left behind in his cross-examination.
7. The reason assigned by the trial Court cannot be found fault with
since the power vested in the trial Court under Section 311 of Cr.P.C. is
neither to fill up the lacuna left behind in the cross-examination nor to
adduce additional or better evidence. The power vested in the trial Court
under Section 311 of Cr.P.C. is though wide, but is circumscribed by the
rider of recall/re-examination being essential for just decision of the case.
The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
4 MCRC-27925-2025
another, (2013) 14 SCC 461 has laid down certain principles to be kept in
mind by the trial Court while dealing with power under Section 311 of
Cr.P.C. The relevant paragraph 23 of the said judgment is reproduced
below:-
"23. From a conspectus consideration of the above decisions,
while dealing with an application under Section 311 Cr.P.C. read
along with Section 138 of the Evidence Act, we feel the following
principles will have to be borne in mind by the Courts:
(a) Whether the Court is right in thinking that the new evidence is
needed by it? Whether the evidence sought to be led in under
Section 311 is noted by the Court for a just decision of a case?
(b) The exercise of the widest discretionary power under Section
311 Cr.P.C. should ensure that the judgment should not be
rendered on inchoate, inconclusive speculative presentation of
facts, as thereby the ends of justice would be defeated.
(c) If evidence of any witness appears to the Court to be essential
to the just decision of the case, it is the power of the Court to
summon and examine or recall and re-examine any such person.
(d) The exercise of power under Section 311 Cr.P.C. should be
resorted to only with the object of finding out the truth or
obtaining proper proof for such facts, which will lead to a just and
correct decision of the case.
(e) The exercise of the said power cannot be dubbed as filling in a
lacuna in a prosecution case, unless the facts and circumstances of
the case make it apparent that the exercise of power by the Court
would result in causing serious prejudice to the accused, resulting
in miscarriage of justice.
(f) The wide discretionary power should be exercised judiciously
and not arbitrarily.
(g) The Court must satisfy itself that it was in every respect
essential to examine such a witness or to recall him for further
examination in order to arrive at a just decision of the case.
(h) The object of Section 311 Cr.P.C. simultaneously imposes a
duty on the Court to determine the truth and to render a just
decision.
(i) The Court arrives at the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
5 MCRC-27925-2025
judgment without it, but because there would be a failure of justice
without such evidence being considered.
(j) Exigency of the situation, fair play and good sense should be
the safe guard, while exercising the discretion. The Court should
bear in mind that no party in a trial can be foreclosed from
correcting errors and that if proper evidence was not adduced or a
relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting
such mistakes to be rectified.
(k) The Court should be conscious of the position that after all the
trial is basically for the prisoners and the Court should afford an
opportunity to them in the fairest manner possible. In that parity
of reasoning, it would be safe to err in favour of the accused
getting an opportunity rather than protecting the prosecution
against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a
discretionary power, may lead to undesirable results.
(l) The additional evidence must not be received as a disguise or
to change the nature of the case against any of the party.
(m) The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to the
issue involved and also ensure that an opportunity of rebuttal is
given to the other party.
(n) The power under Section 311 Cr.P.C. must therefore, be
invoked by the Court only in order to meet the ends of justice for
strong and valid reasons and the same must be exercised with care,
caution and circumspection. The Court should bear in mind that
fair trial entails the interest of the accused, the victim and the
society and, therefore, the grant of fair and proper opportunities to
the persons concerned, must be ensured being a constitutional
goal, as well as a human right"
8. Testing the factual matrix attending the instant case on the anvil of
the aforesaid law, it is evident that the request for recalling and re-cross-
examining of the aforesaid PW is an attempt on the part of petitioner/accused
to ask questions which were not asked when the said PW was examined
earlier by the defence counsel. The principles culled out by the Apex Court
in the case of Rajaram Prasad (supra) do not permit exercise of power under
Section 311 Cr.P.C. for the purpose sought by the petitioner.
NEUTRAL CITATION NO. 2025:MPHC-GWL:17536
6 MCRC-27925-2025
9. If the request of petitioner is accepted, then no trial would come to
an end and the defence or prosecution, as the case may be, would keep
invoking the power under Section 311 of Cr.P.C. to fill up lacunas in their
evidence.
10. In the absence of any failure of justice noticed, this Court declines
interference and dismisses the present petition under Section 528 of BNSS.
11. Accordingly, present petition stand dismissed sans cost.
(MILIND RAMESH PHADKE)
JUDGE
ojha
