The court confirmed that the discretion under Section 311 of the Code of Criminal Procedure must be exercised judiciously to ensure a fair trial and prevent a failure of justice.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Mr. S.C., Biswas, the counsel appearing for the petitioner. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. A. Ahmed, the learned counsel representing Respondent No.2.

2. This is an application under Section 482 of the Code of Criminal Procedure challenging the order dated 07.06.2019 passed by the learned Chief Judicial Magistrate, Chirang, Kajalgaon in NICR Case No.06/2017 upheld by the learned Sessions Judge, Chirang, in Criminal Revision Petition No.6(03) of 2019.

3. The present petitioner is an accused before the trial court in respect NICR Case No.06/2017. He filed applications under Section 311 of the Code of Criminal Procedure praying to recall some witnesses who were examined and discharged after cross-examination. Specific grounds were mentioned in that petition.

4. With a reasoned order, the learned trial court refused to recall any witness.

5. The petitioner then filed a revision petition before the learned Sessions Judge, Chirang. The revisional court also agreed with the view taken by the trial court and dismissed the revision petition.

6. I have considered the submissions made by the learned counsel of both sides.

7. Regarding the provision under Section 311 of the Code of CRIMINAL PROCEDURE CODE , in Rajaram Prasad Yadav v. State of Bihar , (2013) 14 SCC 461 , the Hon’ble Supreme Court has held as under:

“17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

17.1. 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?

17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. 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.

17.4. The exercise of power under Section 311 CrPC 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.

17.5. 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.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. 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.

17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear