The discretionary power under Section 311 of the Cr.P.C. to summon witnesses must be exercised judiciously to ensure justice, not to rectify prosecutorial errors post-evidence closure.

ORDER :

M. Nagaprasanna, J.

The petitioners/victims, in both the cases, are before this Court calling in question order dated 19-07-2025 passed in Special Case (Petition) No.181 and 182 of 2022 before the concerned Court, which rejects the application filed under Section 311 r/w Section 91 of the Cr.P.C. filed seeking to recall P.W.14 for further examination and to produce certain documents.

2. Facts in brief, germane, are as follows:

A crime comes to be registered in Crime No.155 of 2012 for offences punishable under Sections 17 , 5L and 6 of the POCSO Act and under Sections 3 76(2)(n), 376(3) r/w Section 149 of the IPC. Thereafter, on its transfer to Chitradurga Rural Police Station, it was registered as FIR in Crime No.387 of 2022 and much water has flown after the registration of the crime, narration of which would not be necessary for consideration of the issue in the lis.

3. The prosecution witness, P.W.14, one S. K. Basavarajan was examined on 07-12-2024, and 16-12-2024. After the said examination, several other witnesses are also examined. The subject application is filed by the prosecution, seeking production of two documents which concerns P.W.14 and seeking his recall for further examination. The concerned Court, by the impugned order 19-07-2025 rejects the application. The rejection of the application is now challenged by the victims in these two petitions.

4. Heard Sri Hashmath Pasha, learned senior counsel appearing for petitioners, Sri B N Jagadeesh, learned Additional State Public Prosecutor, appearing for respondent No.1 and Sri C V Nagesh, learned senior counsel appearing for respondents 2 to 4.

5. Learned senior counsel Sri Hashmath Pasha appearing for the petitioners submits that the two letters which are in the nature of encomiums to P.W.14, given by the accused, way back in the year 2007 are necessary to be placed on record and to give evidence on that as well. He would submit that the purport of Section 311 is to steer clear any controversy that arise at the time of evidence and that no prejudice would be caused to the accused, if the said two documents are produced and examination on those two documents of P.W.14 re- happens. Learned senior counsel submits that the order of the concerned Court is an error and is contrary to the purport of Section 311 of the Cr.P.C.

6. Per-contra, learned senior counsel Sri C V Nagesh would take this Court through the documents appended to the petition to demonstrate that the matter has reached the Apex Court and the Apex Court has directed conclusion of the trial within an year and time for extension is also sought, which is pending consideration at the hands of the Apex Court. Learned senior counsel would otherwise contend that the documents that are sought to be marked by way of an application under Section 91 of the CPC is by the prosecution and that of Prosecution Witness No.14. He is not the accused, he is not the first informant and nothing would change by marking of those documents. Therefore, for the asking, the application under Section 311 r/w 91 of the Cr.P.C. should not be permitted, is the submission of the learned senior counsel.

7. Both the learned senior counsel appearing for the petitioner and the respondents have placed reliance on certain judgments, which would bear consideration in the course of the order.

8. I have given my anxious consideration to the submissions made by the respective learned senior counsels and the learned Additional State Public Prosecutor and have perused the material on record.

9. The afore-narrated facts are all a matter of record. The issue has driven the petitioners/victims to this Court is not something that is passed against the victims. It is an application filed by the prosecution seeking recall of P.W.14 for further examination and seeking production of 2 documents. What are those documents is germane to be noticed. They are as follows:

…. …. ….

“To

Thursday, November 22, 2007

Sri.S.K.Basavarajan
S/o.Karisiddaiah
Aged about 46 years
R/a