Madhya Pradesh High Court
Santosh Singh Sikarwar vs The State Of Madhya Pradesh on 11 September, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJESH KUMAR GUPTA
ON THE 11th OF SEPTEMBER, 2025
MISC. CRIMINAL CASE No. 3480 of 2024
SANTOSH SINGH SIKARWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Brijendra Singh - Advocate for the petitioner.
Shri V. P. S. Tomar - Panel Lawyer for the respondent/State.
Shri Prabal Pratap Singh Solanki- Advocate for the
respondent/complainant.
ORDER
1. The instant petition has been filed under Section 482 of the Cr.P.C.
for quashing the order dated 04.01.2024 passed in Sessions Trial
No.292/2020 by Special Judge, POCSO, District Morena whereby an
application filed by the respondent under Section 311 of the Cr.P.C. has been
allowed.
2. Brief facts of the case are that the offence was registered under
Section 302, 201 and 34 of IPC at Crime No.90/2020. On the aforesaid FIR,
investigation was carried out. After completion of the investigation, charge-
sheet was filed and charges were framed against the petitioner. Trial
programme was fixed, the evidence of the prosecution was started. After
completion of the prosecution witnesses, defence evidence was carried out.
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After completion of all these, the learned trial court fixed the matter for final
delivery of judgement on 15.12.2023. But, in the meanwhile, after hearing
both the parties, the respondent has filed an application under Section 311 of
the Cr.P.C. The respondent by way of the aforesaid application prayed for re-
examination of PW-11/Vivek Tomar, S.I. who had prepared a Panchanama
of the CCTV footage. The said application has been allowed. Therefore, this
petition has been filed.
3. Learned counsel for petitioner submitted that the trial court while
allowing the application under Section 311 of the Cr.P.C. has committed
grave error and has ignored the fact that the prosecution is just trying to fill
the lacuna in the investigation that has been created by them. It is the fault of
the prosecution and allowing such application is highly impermissible in the
eyes of law. The trial court has also ignored the fact that the matter is already
at final stage and fixed for final judgement. The act of the trial court is
arbitrary and illegal, therefore, the impugned order deserves to be set aside.
4. Learned counsel for respondent/State as well as counsel for
complainant supported the impugned order that prayed for rejection of this
petition.
5. Heard counsel for the rival parties and perused the impugned orders
as well as documents appended thereto.
6. It is a case where in a criminal trial, an application under Section
311 of the Cr.P.C. has been allowed by the trial court at the stage of final
judgement.
7. Section 311 of the Cr.P.C. reads as under;
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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.
8. Section 91 of the Cr.P.C. reads as under;-
91.Summons to produce document or other thing - (1) Whenever any
Court or any officer-in-charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may issue a summons,
or such officer a written order, to the person in whose possession or power
such document or thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place stated in the summons or
order.
9. On perusal of the record, it is not disputed that the trial is at the
verge of end and all witnesses have already been examined before the trial
court and evidence is closed and the matter is listed on 15.12.2023 for final
judgement.
10. The law with respect to recalling of the witnesses or summoning
the witnesses or offence in terms of Section 311 of the Cr.P.C. is clear and
the exercise of power is discretionary. The Hon'ble Supreme Court in the in
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the Case of Rajaram Prasad Yadav Vs. State of Bihar and Another reported
in (2013) 14 SCC 461 as held as under :-
"14. 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 examinedÃÂ. 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 re-examination. 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 re-examination 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 re-examined 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."
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:
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
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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."
11. From perusal of the record and documents, it appears that the
prosecution/PW-11 has alleged that the accused- Santosh has been seen in
the CCTV footage pulling the dead body of the deceased. From the
perceptive of a criminal case of this nature, the aforesaid CCTV footage
appears to be an important piece of evidence and the same needs to be re-
examined to meet the ends of justice.
12. The content of Section 311 of the Cr.P.C. itself says 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.
13. Therefore, from the aforesaid reading and discussion, it is apparent
that the powers under Section 311 of the Cr.P.C. have to be used juditiously
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and in the present case, this court is of the considered opinion that the trial
court has not committed any error in passing the impugned order thereby
allowing application under Section 311 of the Cr.P.C.
14. Hence, this petition, being devoid of merits, is hereby dismissed.
(RAJESH KUMAR GUPTA )
JUDGE
