Varsha Garg Versus The State of Madhya Pradesh & Ors

Varsha Garg Versus The State of Madhya Pradesh & Ors


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1021 of 2022
Varsha Garg ...Appellant
Versus
The State of Madhya Pradesh & Ors. ...Respondents
WITH
MA 1144 of 2022
In
SLP (Crl) No. 2239 of 2022
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 A Single Judge of the Indore Bench of the High Court of Madhya Pradesh
rejected, by a judgment dated 8 April 2022, a petition instituted by the appellant
under Section 482 of the Code of Criminal Procedure 19731
registered as Misc.
Criminal Case No. 57152 of 2021.
2 The petition addressed a challenge to the correctness of an order dated 13
November 2021 of the Second Additional Sessions Judge, Dr. Ambedkar Nagar,
District Indore rejecting an application under Section 311 CrPC seeking to summon
the nodal officers of certain cellular entities along with the decoding register to trace
the mobile location of accused Vikas, Mangilal and Suresh.
3 The appellant is the spouse of an advocate who was brutally murdered
outside his office at about 2330 hrs on 18 November 2015. Following the homicide,
a First Information Report bearing Criminal Complaint No. 734 of 2015 was
registered with Police Station2 Mhow, District Indore on 19 November 2015 for an
offence punishable under Section 302 read with Section 34 of the Indian Penal Code
18603
. The investigation was initiated. The post mortem report indicated that the
homicide was caused due to a firearm injury. The second, third, fourth, fifth and sixth

1
―CrPC‖
2
“P.S.”
3
―IPC‖
3
respondents (i.e., Vikas, Sawan, Mangilal, Suresh and Raju) were arrested during
the course of the investigation.
4 A charge-sheet was submitted after investigation on 15 February 2016. A
supplementary charge-sheet was submitted on 20 November 2016. The case has
been committed to the Court of the Second Additional Sessions Judge, Dr.
Ambedkar Nagar, District Indore and was registered as Sessions Trial 227 of 2016.
5 Among the enclosures to the supplementary charge-sheet were certificates
dated 11 January 2016 of the nodal officers of certain cellular companies, namely:
(i) a certificate dated 11 January 2016 of Airtel;
(ii) a certificate dated 18 January 2016 of Reliance;
(iii) a certificate dated 30 March 2016 of Idea;
(iv) a certificate dated 6 June 2016 of Vodafone.
Upon the commencement of the recording of evidence at the trial, the nodal officers
of Idea (PW33), Airtel (PW41), Reliance (PW43) and Vodafone (PW48) were
examined on 17 November 2017, 7 May 2018, 17 July 2018 and 31 October 2018.
The Station House Officer
4
, P.S. Mhow between February 2016 and April 2017, was
examined by the prosecution as PW47 on 31 October 2018. PW47 had filed the
supplementary charge-sheet and had prepared a compact disc5 with call details of

4
―SHO‖
5
―CD‖
4
the co-accused. He also admitted that he had not filed a certificate as required under
Section 65B of the Indian Evidence Act 18726
in relation to the CD.
6 The statements of accused – Suresh (the fifth respondent) and Mangilal (the
fourth respondent) – under Section 313 CrPC were recorded on 25 January 2020
and 12 February 2020 respectively. During the course of the trial, the CD had been
produced but since it was found to be ‗corrupted‘, an application was made to the
trial court to requisition the copy of the CD which was available at the police station.
The application was allowed on 15 November 2019. On the subsequent date, PW47
marked his appearance. On the next date of hearing, when PW47 was required to
produce the CD which was kept at the police station, he failed to do so. In those
circumstances, an application (―first application‖) was preferred to requisition the
said CD but this application was rejected by the trial court on the ground that the
evidence of PW47 had been recorded and a last opportunity had already been given
to him to produce the CD. A Single Judge of the High Court on 2 March 2020
allowed the petition instituted by the appellant to challenge the order of the trial
court, noting that the CD was a vital piece of evidence and had been provided to all
the accused along with the charge-sheet. Resultantly, the trial court was directed to
take necessary steps for requisitioning the CD through the police station and for
taking it on record from PW47.

6
―IEA‖
5
7 On 15 March 2021, another application (―second application‖) was moved
under Section 311 on behalf of the prosecution for summoning the decoding
register.
8 On 5 July 2021, the prosecution filed an application (―third application‖)
under Section 311 CrPC stating that the court had taken on record the CD and a
certificate under Section 65B of the Evidence Act, in pursuance of the order of the
High Court admitting its previous application. By filing the third application, the
prosecution sought permission to summon the certificate issuer and examine said
witness in order to prove the certificate.
9 On 16 July 2021, an application was filed by the prosecution (“fourth
application”) under Section 311 to summon the nodal officer of Idea and under
Section 91 to produce the call data records of two mobile numbers.
10 On 22 September 2021, the trial court allowed the third application but
dismissed the fourth application. This order of the trial court was challenged before
the High Court.
11 In the meantime, the trial court by an order dated 13 November 2021
dismissed the second application as well. The trial court in its order dated 13
November 2021 rejected the application for the production of the decoding register
on the ground that:
(i) The document which the prosecution desired to summon does not form a part
of the investigation; and
6
(ii) The document has not been obtained during the course of the investigation.
Consequently, on the same date, the trial court also recorded that the evidence of
the prosecution stood closed. The appellant challenged this order of the trial court
before the High Court invoking its jurisdiction under Section 482 CrPC. While
rejecting this petition on 8 April 2022 in Misc. Criminal Case No. 57152 of 2021, the
Single Judge of the High Court held that
A. The decoding registers are not part of the case diary or the charge-sheet;
B. The prosecution has closed its evidence; and
C. The application has been filed at a belated stage without collecting all the
relevant information (for instance, whether the decoding register is available
with the service provider or not).
12 Separately, on the same date i.e. 8 April 2022, the High Court also disposed
of two proceedings under Section 482 instituted by the State of Madhya Pradesh7
and by the appellant8
challenging the order of the trial court dated 22 September
2021 dismissing the fourth application under Section 91 CrPC for summoning of
documents. The Single Judge noted that the application under Section 91 had been
filed by the prosecution for summoning the CDR and CAF of two mobile numbers on
the ground that they were crucial for establishing the guilt of accused Sawan. It was
urged before the High Court that PW41, the nodal officer of Airtel, had specifically
deposed that he had forwarded the call details of the mobile numbers to the SDOP

7 MCrC No. 61600 of 2021
8 MCrC No. 51642 of 2021
7
along with a letter dated 11 January 2016 (Exhibit P/103) but these were not filed
along with the charge-sheet. However, the High Court held that since these
documents were available in the case diary, they could be exhibited under Section
91 CrPC. Accepting the plea of the prosecution and the appellant, the Single Judge
set aside the trial court‘s order which had dismissed the application seeking the
summoning of the documents and the trial court was directed to pass a
consequential order on the application.
13 It is however the other judgment of the High Court dated 8 April 2022 in Misc.
Criminal Case No. 57152 of 2021 mentioned earlier which rejected the petition
instituted by the appellant under Section 482 challenging the order of the trial judge
dated 13 November 2021 dismissing the second application which has been called
into question in these proceedings.
14 We have heard Mr Ramakrishnan Viraraghavan, senior counsel appearing on
behalf of the appellant. Mr Shreeyash U Lalit, counsel for the State of MP has
supported the submissions in the appeal.
15 Mr SK Gangele, senior counsel appears on behalf of the second, third and
sixth respondents while Ms Bansuri Swaraj, appears on behalf of the fourth and fifth
respondents.
16 The submission which has been urged by Mr Ramakrishnan Viraraghavan,
senior counsel on behalf of the appellant and by Mr Shreeyash U Lalit , counsel for
the State of MP are set out below:
8
(i) The production of the decoding register is crucial to establish the corelationship between the location of the accused and the cell phone tower;
(ii) The application was filed by the prosecution before the closure of evidence
and it was only after the rejection of the application that the order dated 30
November 2022 of the Second Additional Sessions Judge recorded that the
evidence of the prosecution stood closed;
(iii) In any event, there was no bar in law to the filing of an application under
Section 311 even after the closure of evidence;
(iv) The production of the decoding register was sought under the provisions of
Section 91 CrPC which exists independent of Section 207 CrPC; and
(v) There is no element of prejudice to the accused since the enclosures to the
supplementary charge-sheet specifically refer to the certificates of the nodal
officers of the cellular companies.
17 Mr SK Gangele, senior counsel appearing on behalf of the second, third and
sixth respondents has urged that:
(i) In view of the bar contained in Section 301 CrPC, it is not open to the
appellant who is the spouse of the deceased to pursue these proceedings;
(ii) The nodal officers have already been examined on 7 May 2018, 17 July
2018 and 31 October 2019;
(iii) The locations have been mentioned by the witnesses; and
(iv) All relevant documents are already on record.
9
18 Ms Bansuri Swaraj, counsel appearing on behalf of the respondents four and
five submitted that:
(i) Four applications were submitted by the prosecution under Section 311
CrPC;
(ii) 53 witnesses have been examined;
(iii) Final arguments at the trial are to be addressed on 25 July 2022;
(iv) In view of the decision of this Court in Swapan Kumar Chatterjee v.
Central Bureau of Investigation9
, an application under Section 311 CrPC
ought not be allowed where:
a. It is an abuse of the process of the Court; or
b. The prosecution‘s evidence was closed long back.
(v) The prosecution‘s evidence was closed long back;
(vi) The reasons for non-examination of the witnesses earlier are not
satisfactory;
(vii) The accused had been denied bail and are in custody as under trials for
over 6.5 years; and
(viii) The right to a speedy trial is an integral component of Article 21 of the
Constitution which mandates fairness to the accused.
19 Accordingly, it was urged that the nodal officers were examined in 2017-2018,
the CD has already been brought on record and the two Courts having concurrently

9
(2019) 14 SCC 328
10
rejected the application under Section 311, the balance of justice must weigh in
favour of the accused.
20 First, we deal with the objection of the respondents regarding the bar in
Section 301 of the CrPC on the basis of which it has been argued that it is not open
to the Appellant who is the spouse of the deceased to pursue these proceedings.
21 The respondents have relied upon the decisions in Shiv Kumar v. Hukam
Chand10 and Dhariwal Industries Ltd. v. Kishore Wadhwani11 to further their
contention. However, both these cases deal with this Court having declined private
counsel to conduct a prosecution instead of a Public Prosecutor in a sessions trial
by relying upon the specific bar in Section 225 CrPC. Accordingly, these cases can
be clearly distinguished from the facts of the present case. In the present case, even
the application under Section 311 in the sessions trial was moved by the State and
there is no question of the appellant wanting to replace the public prosecutor in the
trial.
22 On the other hand, in Mina Lalita Baruwa v. State of Orissa12, the appellant
was alleged to have been gang raped by the assailants who were arrayed as
accused at the sessions trial. PW 18 was a Sub Divisional Judicial Magistrate before
whom the Test Identification Parade13 was held. PW 18 had recorded the
proceedings in the prescribed format and certain documents were marked as Ext.
The grievance of the appellant was that during the course of the examination in

10 (1999) 7 SCC 467
11 (2016) 10 SCC 378
12 (2013) 16 SCC 173
13 ―TIP‖
11
chief, an incorrect version was spoken to by PW18 as an authorized officer who
conducted the TIP. However, the prosecution failed to confront him with the
aforementioned Ext. 8 or to controvert the incorrect statement in order to remove
any source of ambiguity which would otherwise prejudice the case of the
prosecution. The appellant approached the Special Public Prosecutor to set right the
error of PW18 in his evidence and to confront him inter alia with a document marked
as Ext. 8.The public prosecutor not having taken any steps, the appellant moved the
trial judge with an application for recalling PW18. The trial judge rejected the
application on the ground of maintainability, holding that such an application could
not have been filed at the instance of the victim. The High Court, placing reliance on
the provisions of Section 301 CrPC observed that the informant had a limited role to
play and it was not open to her to file an application for recalling witnesses.
In this backdrop, this Court examined the provisions of Section 301. Section 301 is
extracted below:
―301. Appearance by Public Prosecutors.—(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a case
may appear and plead without any written authority before
any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader
to prosecute any person in any Court, the Public Prosecutor
or Assistant Public Prosecutor in charge of the case shall
conduct the prosecution, and the pleader so instructed shall
act therein under the directions of the Public Prosecutor or
Assistant Public Prosecutor, and may, with the permission of
the Court, submit written arguments after the evidence is
closed in the case.‖
12
23 The Court observed:
―19. In criminal jurisprudence, while the offence is against the
society, it is the unfortunate victim who is the actual sufferer
and therefore, it is imperative for the State and the
prosecution to ensure that no stone is left unturned. It is also
the equal, if not more, duty and responsibility of the court to
be alive and alert in the course of trial of a criminal case and
ensure that the evidence recorded in accordance with law
reflect upon every bit of vital information placed before it. It
can also be said that in that process the court should be
conscious of its responsibility and at times when the
prosecution either deliberately or inadvertently omit to bring
forth a notable piece of evidence or a conspicuous statement
of any witness with a view to either support or prejudice the
case of any party, should not hesitate to interject and prompt
the prosecution side to clarify the position or act on its own
and get the record of proceedings straight. Neither the
prosecution nor the court should remain a silent spectator in
such situations. Like in the present case where there is a
wrong statement made by a witness contrary to his own
record and the prosecution failed to note the situation at that
moment or later when it was brought to light and whereafter
also the prosecution remained silent, the court should have
acted promptly and taken necessary steps to rectify the
situation appropriately. The whole scheme of the Code of
Criminal Procedure envisages fool proof system in
dealing with a crime alleged against the accused and
thereby ensure that the guilty does not escape and the
innocent is not punished. It is with the above background,
we feel that the present issue involved in the case on hand
should be dealt with.‖
(emphasis supplied)
24 The Court noted that while it is true that Section 301 places limitations on the
right of the private person to participate in criminal proceedings, nonetheless Section
311 empowers the trial court to summon witnesses in order to arrive at a just
decision. The court held in that context:
13
―21 …Therefore, a reading of Sections 301 and 311 together
keeping in mind a situation like the one on hand, it will have to
be stated that the trial Court should have examined whether
invocation of Section 311 was required to arrive at a just
decision. In other words even if in the consideration of the trial
Court invocation of Section 301(2) was not permissible, the
anomalous evidence deposed by PW-18 having been brought
to its knowledge should have examined the scope for
invoking Section 311 and set right the position. Unfortunately,
as stated earlier, the trial Court was in a great hurry in
rejecting the appellant‘s application without actually relying on
the wide powers conferred on it under Section 311 CrPC for
recalling PW-18 and ensuring in what other manner, the
grievance expressed by the victim of a serious crime could be
remedied. In this context, a reference to some of the
decisions relied upon by the counsel for the appellant can be
usefully made.‖
25 Further, the Court while relying upon the earlier decisions in J.K.
International v. State (Govt. of NCT of Delhi)14
, Zahira Habibulla H.
Sheikh v. State of Gujarat15
, Manu Sharma v. State (NCT of Delhi)16
, Mohanlal
Shamji Soni v. Union of India17
, Rajendra Prasad v. Narcotic Cell18
, noted:
―31 …a criminal court cannot remain a silent spectator. It has
got a participatory role to play and having been invested with
enormous powers under Section 311 CrPC, as well as
Section 165 of the Evidence Act, a trial court in a situation like
the present one where it was brought to the notice of the
court that a flagrant contradiction in the evidence of PW 18
who was a statutory authority and in whose presence the test
identification parade was held, who is also a Judicial
Magistrate, ought to have risen to the occasion in public
interest and remedied the situation by invoking Section 311
CrPC, by recalling the said witness with further direction to

14 (2001) 3 SCC 462
15 (2004) 4 SCC 158
16 (2010) 6 SCC 1
17 (1991) Supp (1) SCC 271
18 (1999) 6 SCC 110
14
the Public Prosecutor for putting across the appropriate
question or court question to the said witness and thereby set
right the glaring error accordingly. It is unfortunate to state
that the trial court miserably failed to come alive to the
realities as to the nature of evidence that was being recorded
and miserably failed in its duty to note the serious flaw and
error in the recording of evidence of PW 18.‖
26 The objection which has been raised by the second, third and sixth
respondents on the basis of the provisions of Section 301 CrPC lacks substance.
Sub-section (1) of Section 301 stipulates that the Public Prosecutor or the Assistant
Public Prosecutor in charge of a case may appear without written authority before
any court in which the case is under inquiry, trial or appeal. Sub-section (2) of
Section 301 postulates that if any such case, any private person instructs a pleader
to prosecute any person in any court, the Public Prosecutor or Assistant Public
Prosecutor in charge of the case shall conduct the prosecution, and the pleader so
instructed shall act under the directions of the Public Prosecutor or Assistant Public
Prosecutor, and may, with the permission of the Court, submit written arguments
after the evidence is closed in the case.
27 In the present case, the application for the summoning of witness and for
production of the decoding register was submitted by the State. Hence, the bar
contained in Section 301 does not stand in the way.
28 Having clarified that the bar under Section 301 is inapplicable and that the
appellant is well placed to pursue this appeal, we now examine Section 311 of
CrPC. Section 311 provides that the Court ―may‖:
15
(i) Summon any person as a witness or to examine any person in attendance,
though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
This power can be exercised at any stage of any inquiry, trial or other proceeding
under the CrPC. The latter part of Section 311 states that the Court ―shall‖ summon
and examine or recall and re-examine any such person ―if his evidence appears to
the Court to be essential to the just decision of the case‖. Section 311 contains a
power upon the Court in broad terms. The statutory provision must be read
purposively, to achieve the intent of the statute to aid in the discovery of truth.
29 The first part of the statutory provision which uses the expression ―may‖
postulates that the power can be exercised at any stage of an inquiry, trial or other
proceeding. The latter part of the provision mandates the recall of a witness by the
Court as it uses the expression ―shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just
decision of the case‖. Essentiality of the evidence of the person who is to be
examined coupled with the need for the just decision of the case constitute the
touchstone which must guide the decision of the Court. The first part of the statutory
provision is discretionary while the latter part is obligatory.
30 A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while
dealing with pari materia provisions of Section 540 of the Criminal Code of
Procedure 1898 observed:
16
―16. The second part of Section 540 as pointed out albeit
imposes upon the court an obligation of summoning or
recalling and re-examining any witness and the only condition
prescribed is that the evidence sought to be obtained must be
essential to the just decision of the case. When any party to
the proceedings points out the desirability of some evidence
being taken, then the court has to exercise its power under
this provision — either discretionary or mandatory —
depending on the facts and circumstances of each case,
having in view that the most paramount principle underlying
this provision is to discover or to obtain proper proof of
relevant facts in order to meet the requirements of justice.‖
Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power
is couched in the widest possible terms and calls for no limitation, either with regard
to the stage at which it can be exercised or the manner of its exercise. It is only
circumscribed by the principle that the ―evidence to be obtained should appear to the
court essential to a just decision of the case by getting at the truth by all lawful
means.‖ In that context the Court observed:
―18 …Therefore, it should be borne in mind that the aid of the
section should be invoked only with the object of discovering
relevant facts or obtaining proper proof of such facts for a just
decision of the case and it must be used judicially and not
capriciously or arbitrarily because any improper or capricious
exercise of the power may lead to undesirable results. Further
it is incumbent that due care should be taken by the court
while exercising the power under this section and it should
not be used for filling up the lacuna left by the prosecution or
by the defence or to the disadvantage of the accused or to
cause serious prejudice to the defence of the accused or to
give an unfair advantage to the rival side and further the
additional evidence should not be received as a disguise for a
retrial or to change the nature of the case against either of the
parties.‖
17
31 Summing up the position as it obtained from various decisions of this Court,
namely Rameshwar Dayal v. State of U.P.19
, State of W.B. v. Tulsidas
Mundhra20
, Jamatraj Kewalji Govani v. State of Maharashtra21
, Masalti v. State
of U.P.22
, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of
Maharashtra24
, the Court held:
―27. The principle of law that emerges from the views
expressed by this Court in the above decisions is that the
criminal court has ample power to summon any person as a
witness or recall and re-examine any such person even if the
evidence on both sides is closed and the jurisdiction of the
court must obviously be dictated by exigency of the situation,
and fair play and good sense appear to be the only safe
guides and that only the requirements of justice command
the examination of any person which would depend on the
facts and circumstances of each case.‖
32 The power of the court is not constrained by the closure of evidence.
Therefore, it is amply clear from the above discussion that the broad powers under
Section 311 are to be governed by the requirement of justice. The power must be
exercised wherever the court finds that any evidence is essential for the just
decision of the case. The statutory provision goes to emphasise that the court is not
a hapless bystander in the derailment of justice. Quite to the contrary, the court has
a vital role to discharge in ensuring that the cause of discovering truth as an aid in
the realization of justice is manifest.

19 (1978) 2 SCC 518
20 (1963) Supp 1 SCR 1
21 (1967) 3 SCR 415
22 (1964) 8 SCR 133
23 (1966) 1 SCR 178
24 (1971) 1 SCC 523
18
33 Section 91 CrPC empowers inter alia any Court to issue summons to a
person in whose possession or power a document or thing is believed to be, where it
considers the production of the said document or thing necessary or desirable for
the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
34 Section 91 forms part of Chapter VII of CrPC which is titled ―Processes to
Compel the Production of Things‖. Chapter XVI of the CrPC titled ―Commencement
of Proceedings before Magistrates‖ includes Section 207 which provides for the
supply to the accused of a copy of the police report and other documents in any
case where the proceeding has been instituted on a police report.25 Both operate in
distinct spheres.
35 In the present case, the application of the prosecution for the production of
the decoding registers is relatable to the provisions of Section 91 CrPC. The
decoding registers are sought to be produced through the representatives of the
cellular companies in whose custody or possession they are found. The decoding
registers are a relevant piece of evidence to establish the co-relationship between

25 Section 207 in The Code Of Criminal Procedure, 1973
207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has
been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of
each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to
examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been
made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is
referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of
that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall,
instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally
or through pleader in Court.
19
the location of the accused and the cell phone tower. The reasons which weighed
with the High Court and the Trial Court in dismissing the application are extraneous
to the power which is conferred under Section 91 on the one hand and Section 311
on the other. The summons to produce a document or other thing under Section 91
can be issued where the Court finds that the production of the document or thing ―is
necessary or desirable for the purpose of any investigation, trial or other proceeding‖
under the CrPC. As already noted earlier, the power under Section 311 to summon
a witness is conditioned by the requirement that the evidence of the person who is
sought to be summoned appears to the Court to be essential to the just decision of
the case.
36 PWs 33, 41, 43 and 48, who were the nodal officers of Idea, Airtel, Reliance
and Vodafone have already been examined. During the examination of PW-41, the
nodal officer of Airtel, the witness specifically deposed during the course of
examination that:
―2. Call detail of mobile number XXXXXXXXXX, which has
134 pages is Exhibit P-104, I sent the same detail of the call
to the police. Each page of the same has seal of Bharti Airtel
on the same. Call detail contains date and time wise detail of
call and short message services made/sent and received by
the customer. Additionally, location of the mobile number
is available in code number along with the time of the call
or message for which call detail is provided. Location of
the call made by the mobile number in certain time has
been shown with codes, I cannot state name of the
location today by seeing the code. Location can be
stated after decoding the same. We have coding chart
for location, by seeing the same location can be started.
I don’t have aforesaid chart along with me. Aforesaid
chart is available in the office.‖
(emphasis supplied)
20
37 The relevance of the decoding register clearly emerges from the above
statement of PW-41. Hence, the effort of the prosecution to produce the decoding
register which is a crucial and vital piece of evidence ought not to have been
obstructed. In terms of the provisions of Section 311, the summoning of the witness
for the purpose of producing the decoding register was essential for the just decision
of the case.
38 Having dealt with the satisfaction of the requirements of Section 311, we deal
with the objection of the respondents that the application should not be allowed as it
will lead to filling in the lacunae of the prosecution‘s case. However, even the said
reason cannot be an absolute bar to allowing an application under Section 311.
39 In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which
was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India
Ltd.27, the Court specifically dealt with this objection and observed that the resultant
filling of loopholes on account of allowing an application under Section 311 is merely
a subsidiary factor and the Court‘s determination of the application should only be
based on the test of the essentiality of the evidence. It noted that:
―28. The court is not empowered under the provisions of the
Code to compel either the prosecution or the defence to
examine any particular witness or witnesses on their side.
This must be left to the parties. But in weighing the evidence,
the court can take note of the fact that the best available
evidence has not been given, and can draw an adverse
inference. The court will often have to depend on intercepted
allegations made by the parties, or on inconclusive inference
from facts elicited in the evidence. In such cases, the court

26 (2006) 3 SCC 374
27 (2008) 11 SCC 108
21
has to act under the second part of the section. Sometimes
the examination of witnesses as directed by the court
may result in what is thought to be “filling of loopholes”.
That is purely a subsidiary factor and cannot be taken
into account. Whether the new evidence is essential or not
must of course depend on the facts of each case, and has to
be determined by the Presiding Judge.
(emphasis supplied)
40 The right of the accused to a fair trial is constitutionally protected under Article
21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad
(supra), the Court observed that it is the duty of the criminal court to allow the
prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the
Court had held that:
―8. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go to
the accused in the trial of the case, but an oversight in the
management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be foreclosed
from correcting errors. 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.
After all, function of the criminal court is administration of
criminal justice and not to count errors committed by the
parties or to find out and declare who among the parties
performed better.‖
(emphasis supplied)
In the present case, the importance of the decoding registers was raised in the
examination of PW-41. Accordingly, the decoding registers merely being additional
documents required to be able to appreciate the existing evidence in form of the call
details which are already on record but use codes to signify the location of accused,
a crucial detail, which can be decoded only through the decoding registers, the right
of the accused to a fair trial is not prejudiced. The production of the decoding
22
registers fits into the requirement of being relevant material which was not brought
on record due to inadvertence.
41 Finally, we also briefly deal with the objection of the respondents regarding
the stage at which the application under Section 311 was filed. The respondents
have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this
Court, to argue that the application should not be allowed as it has been made at a
belated stage. The Court in Swapan Kumar (supra) observed:
―11. It is well settled that the power conferred under Section
311 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 wide 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.‖
In the present appeal, the argument that the application was filed after the closure of
the evidence of the prosecution is manifestly erroneous. As already noted above,
the closure of the evidence of the prosecution took place after the application for the
production of the decoding register and for summoning of the witness under Section
23
311 was dismissed. Though the dismissal of the application and the closure of the
prosecution evidence both took place on 13 November 2021, the application by the
prosecution had been filed on 15 March 2021 nearly eight months earlier. As a
matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also
released after examination and cross-examination on the same day as recorded in
the order dated 13 November 2021 of the trial court.
42 The Court is vested with a broad and wholesome power, in terms of Section
311 of the CrPC, to summon and examine or recall and re-examine any material
witness at any stage and the closing of prosecution evidence is not an absolute bar.
This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for
adducing additional evidence under Section 391 CrPC at the appellate stage, along
with a prayer for examination of witnesses under Section 311 CrPC explained the
role of the court, in the following terms:
―43. The courts have to take a participatory role in a trial.
They are not expected to be tape recorders to record
whatever is being stated by the witnesses. Section 311 of the
Code and Section 165 of the Evidence Act confer vast and
wide powers on presiding officers of court to elicit all
necessary materials by playing an active role in the evidencecollecting process. They have to monitor the proceedings
in aid of justice in a manner that something, which is not
relevant, is not unnecessarily brought into record. Even if
the prosecutor is remiss in some ways, it can control the
proceedings effectively so that the ultimate objective i.e.
truth is arrived at. This becomes more necessary where
the court has reasons to believe that the prosecuting
agency or the prosecutor is not acting in the requisite
manner. The court cannot afford to be wishfully or
pretend to be blissfully ignorant or oblivious to such
24
serious pitfalls or dereliction of duty on the part of the
prosecuting agency. The prosecutor who does not act fairly
and acts more like a counsel for the defence is a liability to
the fair judicial system, and courts could not also play into the
hands of such prosecuting agency showing indifference or
adopting an attitude of total aloofness.‖
(emphasis supplied)
Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of
powers under Section 311 and held that:
―27. The object underlying Section 311 of the Code is that
there may not be failure of justice on account of mistake of
either party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is
whether it is essential to the just decision of the case.
The section is not limited only for the benefit of the accused,
and it will not be an improper exercise of the powers of the
court to summon a witness under the section merely because
the evidence supports the case of the prosecution and not
that of the accused. The section is a general section which
applies to all proceedings, enquiries and trials under the Code
and empowers the Magistrate to issue summons to any
witness at any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is “at
any stage of any inquiry or trial or other proceeding
under this Code”. It is, however, to be borne in mind that
whereas the section confers a very wide power on the court
on summoning witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.‖
(emphasis supplied)
43 The Court while reiterating the principle enunciated in Mohanlal Shamji Soni
(supra) stressed upon the wide ambit of Section 311 which allows the power to be
exercised at any stage and held that:
25
―44. The power of the court under Section 165 of the
Evidence Act is in a way complementary to its power under
Section 311 of the Code. The section consists of two parts
i.e.: (i) giving a discretion to the court to examine the witness
at any stage, and (ii) the mandatory portion which compels
the court to examine a witness if his evidence appears to be
essential to the just decision of the court. Though the
discretion given to the court is very wide, the very width
requires a corresponding caution. In Mohanlal v. Union of
India this Court has observed, while considering the scope
and ambit of Section 311, that the very usage of the words
such as, ―any court‖, ―at any stage‖, or ―any enquiry or trial or
other proceedings‖, ―any person‖ and ―any such person‖
clearly spells out that the section has expressed in the widestpossible terms and do not limit the discretion of the court in
any way. However, as noted above, the very width requires a
corresponding caution that the discretionary powers should
be invoked as the exigencies of justice require and exercised
judicially with circumspection and consistently with the
provisions of the Code. The second part of the section
does not allow any discretion but obligates and binds the
court to take necessary steps if the fresh evidence to be
obtained is essential to the just decision of the case,
“essential” to an active and alert mind and not to one
which is bent to abandon or abdicate. Object of the
section is to enable the court to arrive at the truth
irrespective of the fact that the prosecution or the
defence has failed to produce some evidence which is
necessary for a just and proper disposal of the case. The
power is exercised and the evidence is examined neither to
help the prosecution nor the defence, if the court feels that
there is necessity to act in terms of Section 311 but only to
subserve the cause of justice and public interest. It is done
with an object of getting the evidence in aid of a just decision
and to uphold the truth.
(emphasis supplied)
26
While reiterating the decisions of this Court in Karnel Singh v. State of M.P.28
,
Paras Yadav v. State of Bihar29
, Ram Bihari Yadav v. State of Bihar30 and Amar
Singh v. Balwinder Singh31 this Court held that the court may interfere even at the
stage of appeal:
―64. It is no doubt true that the accused persons have been
acquitted by the trial court and the acquittal has been upheld,
but if the acquittal is unmerited and based on tainted
evidence, tailored investigation, unprincipled prosecutor and
perfunctory trial and evidence of threatened/terrorised
witnesses, it is no acquittal in the eye of the law and no
sanctity or credibility can be attached and given to the socalled findings. It seems to be nothing but a travesty of truth,
fraud on the legal process and the resultant decisions of
courts — coram non judis and non est. There is, therefore,
every justification to call for interference in these appeals.‖
44 For the above reasons, we have come to the conclusion that the decision of
the High Court which is impugned in the appeal is unsustainable. We accordingly
allow the appeal and set aside the impugned judgment and order of the High Court
dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of
the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13
November 2021 in Sessions Trial 227 of 2016 dismissing the application filed by the
prosecution. The application filed by the prosecution for the production of the
decoding registers and for the summoning of the witnesses of the cellular

28 (1995) 5 SCC 518
29 (1999) 2 SCC 126
30 (1998) 4 SCC 517
31 (2003) 2 SCC 518
27
companies for that purpose is allowed. The Second Additional Sessions Judge, Dr.
Ambedkar Nagar, District Indore is directed to conclude Sessions Trial No. 227 of
2016 by 31 October 2022.
MA No. 1144 of 2022 in SLP (Crl.) No. 2239 of 2022
45 The application has been filed on behalf of one of the accused – Mangilal
Thakur - who was granted interim bail on medical grounds on 6 May 2022 in SLP
(Crl.) No. 2239 of 2022 for a period of thirty days from the date of his release. In
view of the continuing medical condition of the accused, we deem it appropriate and
proper to extend the interim bail which was granted by order of this Court up to 31
October 2022 subject to the same terms and conditions.
46 Pending application(s), if any, stand disposed of.
..…………...…...….......………………........J.
 [Dr Dhananjaya Y Chandrachud]
.…...…..…....…........……………….…........J.
 [AS Bopanna]
New Delhi;
August 08, 2022

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