Point of Law: An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party....The Power conferred 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 great caution and circumspection.... There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

JUDGMENT :

1. Heard Sri. Ronak Chaturvedi, learned counsel for the applicant and Sri Gyan Prakash, learned Assistant Solicitor General of India assisted by Sri S.K. Yadav and Sri Raman Saxena.

2. The instant application assails the order dated 6 September 2019 passed by the Special Judge, (Anti Corruption), CBI, Court No. 3, Ghaziabad, in Special Case No. 02 of 2017 (State through CBI Versus Ashok Kumar Pathak) arising from Case Crime No. RC-1202017A0006, under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, Police Station ACB CBI, Ghaziabad, rejecting the application of the accused/applicant filed under Section 311 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) for recalling P.W.-1, Lieutenant General Suresh Sharma for cross examination.

3. The facts giving rise the present application is that Pawan Kumar Tiwari made a complaint before the Anti Corruption Branch C.B.I. Ghaziabad, alleging that applicant demanded illegal gratification for release of his payments for the works performed by him for Military Engineering Services. Pursuant to the complaint, F.I.R. came to be lodged on 10 April 2017. After investigation C.B.I. submitted charge sheet against the applicant, the Special Judge, Anti Corruption CBI Ghaziabad vide order dated 27.07.2027 took cognizance.

4. Applicant moved an application to recall P.W.-1 for the reason that during cross examination, inadvertently, it could not be clarified from P.W.-1 as to how sanction for prosecution under Section 19(1)(a) of Prevention of Corruption Act, 1988 (for short 'Prevention of Corruption Act') was accorded, whereas, accused applicant is not a government servant. The court below rejected the application, inter alia, on the ground that P.W.-1 was cross examined by the defence, and with the aid of the application filed under Section 311 Cr.P.C., the applicant wants to fill up the lacuna and delay the proceedings. It is noted in the impugned order that during cross examination P.W.-1 categorically deposed that he was the competent authority to accord sanction for prosecution of the applicant.

5. Para 22 of the impugned order is extracted:-

“22. In the matter in hand, sanctioning authority categorically stated in his statement before this Court as PW1 which is reproduced herein below:-

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The chief examination of PW-1 shows that he has stated himself competent to accord sanction and defence had sufficient opportunity to cross examine the witness on that point. So far as the question regarding application of mind is concerned, the cross examination of PW-1 dated 23.04.2018, shows that PW-1 was controverted on application of mind in granting prosecution sanction. It appears that all the questions which are proposed to be asked, were very much in the knowledge of learned counsel for defence and were asked. Defence had got sufficient opportunity for cross examination and no new fact took place during trail making re-examination of PW-1 necessary. The object of the provisions as a whole is to do justice not only from the point of view of accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent the failure of justice. Therefore, the reasons for exercising this power should be strong and genuine. The delay in filing the application is also one of the important factors which has to be taken into consideration. It is noticed that statement of PW-1 was recorded on 23.04.2018 and the application for recall of witness has been given on 14.05.2019 almost after one year without showing reasonable cause.”

6. Learned counsel for the applicant submits that the counsel for the acc