Madhya Pradesh High Court
Kameshwar Singh vs C.B.I. on 14 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 14th OF OCTOBER, 2025
MISC. CRIMINAL CASE No. 17682 of 2024
KAMESHWAR SINGH
Versus
C.B.I.
Appearance:
Shri Anil Kumar Gupta - Advocate for the petitioner.
Shri Vikram Singh - Advocate for the respondent/CBI.
ORDER
Per: Justice Vivek Agarwal
Heard Shri Anil Kumar Gupta, learned counsel for the petitioner. His
contention is that, the petitioner is aggrieved of the order dated 11.01.2024
passed by learned Special Judge, CBI, Jabalpur in Special Case No. 5/2016,
whereby learned trial Court has rejected an application filed under Section
311 Cr.P.C. on behalf of the accused Kameshwar Singh.
2. It is submitted that, accused Kameshwar Singh had engaged
Senior Advocate Shri Anil Khare, who had examined and cross-examined
various witnesses. It is pointed out that, present counsel Shri Anil Kumar
Gupta was engaged on 22.02.2024 and upon his engagement, he found that,
Shri Anil Khare, learned Sr. Advocate had not properly cross-examined the
witnesses and there are several lacunas, therefore, with a view to secure ends
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of justice, the application under Section 311 Cr.P.C. is filed.
3. Reliance is placed on the judgment of Hon'ble Supreme Court in
the case of Rajaram Prasad Yadav Vs. State of Bihar & another (2013)14
SCC 461, to submit that, the application under Section 311 Cr.P.C. cannot be
dismissed merely dubbing it to be filed to fill in a lacuna in a prosecution
case. Thus, it is submitted that, application be allowed.
4. Shri Vikram Singh, learned counsel for respondent/CBI placed
reliance on the judgment of Hon'ble Supreme Court in the case Satbir Singh
Vs. State of Haryana 2023 SCC OnLine SC 1086, but he is not having copy
of the judgment to be handed over to the Court for going through the
Judgment. This practice in the hands of the CBI's Counsel is deprecated. In
the case of Satbir Singh Vs. State of Haryana (supra) , the Hon'ble Supreme
Court has noted as under:
"10.The first part of this section which is permissive gives purely
discretionary authority to the criminal court and enables it at any stage
of inquiry, trial or other proceedings under the Code to act in one of the
three ways, namely, (i) to summon any person as a witness; or (ii) to
examine any person in attendance, though not summoned as a witness;
or (iii) to recall and re-examine any person already examined. The
second part, which is mandatory, imposes an obligation on the court (i)
to summon and examine or (ii) to recall and re-examine any such
person if his evidence appears to be essential to the just decision of the
case.
11. It is well settled that the power conferred under Section 311
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should be invoked by the court only to meet the ends of justice. The
power is to be exercised only for strong and valid reasons and it should
be exercised with great caution and circumspection. The court has vide
power under this section to even recall witnesses for re-examination or
further examination, necessary in the interest of justice, but the same
has to be exercised after taking into consideration the facts and
circumstances of each case. The 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.
12.Where the prosecution evidence has been closed long back
and the reasons for non-examination of the witness earlier are not
satisfactory, the summoning of the witness at belated stage would cause
great prejudice to the accused and should not be allowed. Similarly, the
court should not encourage the filing of successive applications for
recall of a witness under this provision."
5. After hearing learned counsel for the parties and going through
the records. Hon'ble Supreme Court in the case of Rajaram Prasad Yadav Vs.
State of Bihar & another (supra) has noted 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." It is further held that, " the exercise of the said
power 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
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the accused, resulting in miscarriage of justice." It is further held that " the
wide discretionary power under Section 311 Cr.P.C. should be exercised
judiciously and not arbitrarily".
6. It is also held that " 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".
7. In the case of Neha Begum & Ors. Vs. State of Assam & another
[Special Leave to Appeal (Crl.) No.(s)3910 of 2024] decided on 02.09.2024 ,
the Hon'ble Supreme Court held as under:
"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.
8. On a perusal of the subject application filed by the petitioners
in the trial Court by invoking the provisions under Section 231(2) read
with Section 311 CrPC, we find that other than a vague aspersion that
the erstwhile lawyer engaged by the petitioners did not conduct proper
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cross-examination of the witnesses, no such specific ground was
alluded on behalf of the accused petitioners which could be considered
to be a valid ground for the trial Court to invoke the power under
Section 311 CrPC.
9. Apparently thus, the prayer made by the petitioners in the
application to recall and re-examine the witnesses was nothing but an
attempt to fill in the lacuna. There is nothing on record to suggest that
non summoning of the witnesses for further cross examination could
cause grave prejudice the accused and that such a cause of action was
essential for a just decision of the case."
8. However, upon perusal of the application under Section 311
Cr.P.C. it is evident that, cross-examination of the relevant witnesses was
completed in the year, 2021. Case is pending since the year, 2016. It is
observed that, the change of counsel took place in the month of February
2024, the application under Section 311 Cr.P.C. had already been filed on
25.11.2023. Hence, the contention advanced by Shri Gupta, learned counsel
for the petitioner, that the application was filed pursuant to the change of
counsel, is not made out. Secondly no reasons for delay has been explained,
thirdly, once the witnesses were cross-examined in detail, then, for default of
the counsel who cross-examined the witnesses in not subjecting them to
detailed cross-examination, qua the documents which were exhibited by
each of the witnesses cannot be said to be a mere oversight. But it is
apparently an attempt to fulfill the lacuna which has been left deliberately or
otherwise by the counsel who cross-examined the witnesses.
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9. It is true that, spirit of the law is that the human and constitutional
safeguards should not be overlooked but it is also true that spirit of Section
311 Cr.P.C. is not to allow the parties to fulfill the lacuna. Thus, it is evident
that, neither the application which was filed before the trial Court is speaking
one nor the order impugned reflects that, there is any lack of due diligence or
exercise of proper authority in an improper manner by the trial Court, calling
for interference by this Court.
10. Accordingly, application fails and is dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
