IMPORTANT POINT
The essentiality of summoning a witness for a just decision of the case under Section 311 Cr.P.C. and the need to prevent delay in the trial.

JUDGMENT :

1. Heard Sri Aman Kumar Shrivastav, learned counsel appearing for the applicants and Sri Akhilesh Kumar Vyas, learned Additional Government Advocate and perused the record.

2. By means of the instant application filed under Section 482 Cr.P.C., the applicants have challenged the validity of the order dated 31.01.2024 passed by the Additional District and Sessions Judge, outlying Court, Mohammadi, Lakhimpur Kheri whereby an application filed under Section 311 Cr.P.C. for summoning the investigating officer as a witness has been rejected.

3. It has been stated in the impugned order dated 31.01.2024 that the incident in question occurred on 06.04.2006. After investigation a final report was submitted on 20.06.2006. Thereafter, the complainant filed a protest petition on 27.07.2007, which was allowed and the applicants were summoned to face trial.

4. During trial, prosecution examined as many as 5 witnesses but the investigating officer Jai Prakash Yadav was not examined. The application under Section 311 Cr.P.C. was filed when the trial had reached at the stage of arguments and it was stated therein that it would be in the interest of justice that the investigating officer to be examined as a witness.

5. Trial court has stated in the impugned order that prosecution evidence was closed on 03.03.2023. Statement of the accused under Section 313 Cr.P.C. was recorded on 05.04.2023 and thereafter the matter was fixed for defence evidence.

6. After examination of the defence witnesses, the matter was fixed for argument and at this stage, the accused has filed an application under Section 311 Cr.P.C. for summoning the investigating officer, who has submitted the final report as a witness.

7. Trial court held that it is for the prosecution to decide as to which its witnesses the prosecution desires to produce. The application was filed when the trial had reached the stage of arguments in order to cause delay in disposal of the trial.

8. The learned counsel for the applicant has submitted that an application under Section 311 Cr.P.C. can be filed at any stage of trial, even before delivery of final judgement. In support of this submission he has relied upon a judgement of the Hon'ble Supreme court in the case of Manu Devi vs. State of Rajasthan & Anr., (2019) 6 SCC 203 wherein the Hon'ble Supreme Court has held that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.

9. The learned counsel for the applicants has also relied on the judgment of the Supreme Court in the case of Harendra Rai vs. State of Bihar & Ors., 2023 SCC OnLine SC 1023 the Hon'ble Supreme Court has held that Section 311 CrPC confers wide powers on any court at any stage of any inquiry, trial or other proceeding under this Code to summon material witness or examine person present. Such person may not be a person summoned as a witness. Power to recall and re-examine is also vested. The concept is that it should be essential for the just decision of the case.

10. The investigating officer is an officer of the prosecution and the prosecution chose not to produce him as its witness. In case the accused persons felt that evidence of the investigating officer was essential, the accused could have summoned him as a defence witness but the accused did not choose to summon him as a defence witness. The application for summoning the investigating officer has been filed when the trial reached at the stage of final arguments.

11. In State (NCT of Delhi) vs. Shiv Kumar Yadav, (2016) 2 SCC 402, it has been held that: -

"Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is n