The discretionary power under Section 311 Cr.P.C. must be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.

JUDGMENT :

1. By means of this application under section 482 Cr.P.C., the applicant has invoked the inherent jurisdiction of this Court for quashing the impugned order dated 28.10.2021 passed by the learned Additional Sessions Judge, Court No.42, Shahjahanpur in Sessions Trial No.395 of 2014 (State Vs. Rajesh) arising out of Case Crime No.189 of 2014, under Sections 302,201 IPC, P.S. Katra, District Shahjahanpur.

2. The prosecution submitted an application under Section 311 Cr.P.C. which has been annexed as Annexure-3 to this application to call the witness, namely, Ratipal with averment that Ratipal had gone to Bareilly Court with his personal assignment where he saw the accused Rajesh @ Rajeshwar at 4 P.M. and further statement was made that deceased Shyam Pal had also gone to District Court Bareily. The statement of Ratipal under Section 161 Cr.P.C. was recorded but he was not examined before the court below though he was last witness of the incident.

3. The Additional Sessions Judge after hearing both the parties passed the judgement on 28.10.2021 in which it was observed that Ratipal is the material witness to reach out the truth and he should be examined in the interest of justice; thus allowed the application under Section 311 Cr.P.C. The accused applicant filed an objection before the court below mentioning that the application under Section 311 Cr.P.C. is belated and it is filed only in order to delay the trial.

4. Learned A.G.A. does not dispute that application under Section 311 Cr.P.C. can be moved at any stage of the trial before the judgment is pronounced.

5. I have considered the submissions advanced by the learned counsel for the applicant and the learned A.G.A. and also perused the record.

6. Section 311 Code Of Criminal Procedure, 1973 is quoted below:

"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."

7. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice.

8. The determinative factor is whether it is fundamental for the only choice of the case. The articulation that happens is “at any phase of any request or trial or other continuing under this Code”. It is, however, to be borne as a primary concern that the optional power presented under Section 311 Cr.P.C. must be practiced sensibly, as it is constantly said “more extensive the power, more noteworthy is the need of alert while exercise of reasonable caution….

9. In the matter of Natasha Singh Vs. CBI, reported in 2013(5) SCC 741, the Hon'ble Apex Court after analyzing the law relating to Section 311 of the Cr.P.C. in paragraphs-10, 11,12,13 & 14 has observed as under:

10. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authorityat any