The court has wide discretionary power under Section 311 of the Code of Criminal Procedure to summon or recall any person as a witness if their evidence is essential to the just decision of the case, and the power should be exercised judiciously and not arbitrarily.

Hemant Gupta, CJ.

A learned Single Bench of this Court on 3rd January, 2018 has referred the following questions for the opinion of the Larger Bench:-

“(i) Whether recalling of witness for re-examination or calling of a witness for examination can be permitted under Section 311 Cr.P.C. after the arguments are over and before the pronouncement of judgment?

(ii) Whether the view expressed in the case of "Imrat Singh V. State of M.P. (2015) Cri.L.J. 3473", is in accordance with the provisions of Section 311 of the Cr.P.C.?”

2. The said question arises out of the fact that in a trial for the offences punishable under Sections 363, 366A, 376A and 302 of the Indian Penal Code, 1860 (for short “the IPC”) and Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short “the Act”), the learned Trial Court passed an order on 6th October, 2017 permitting the reexamination of three witnesses, namely, Arjun Singh (PW-9), Dr. Sunil Parashar (PW-10) and N.P. Patel (PW-16) and also ordered examination of constable Neeraj Rawat, Sainik Ramesh, Constable Tej Singh, Bharat, Hakum, Charan, Bhagwan, Santosh Rai and Halka Patwari – Dharmendra and one Vandana alias Simma. It is the said order, which has been challenged before this Court relying upon a Single Bench decision of Gwalior Bench of this Court in the case of Imrat Singh and others vs. State of M.P. (2015 Cri.L.J. 3473) inter alia contending that after the case is fixed for argument, the application for recall of the witnesses is not maintainable.

3. The learned Single Bench hearing the petition, had reservation about the judgment rendered in the case of Imrat Singh (supra) and therefore, the matter has been referred to the Larger Bench.

4. In Imrat Singh's case (supra), after final arguments were heard and case was posted for judgment by the Trial Court, an application was filed by the prosecution for recall of Dr. Anoop Verma to clarify as to whether bone of left leg or right leg was fractured. In the earlier evidence, he had deposed that the fracture was found in the left leg but as per the X-ray, it was right leg which was found to be fractured. The learned Trial Court permitted the doctor to be re-examined but the learned Single Bench relied upon a Single Bench judgment of Rajasthan High Court reported as 1998 Cri. LJ 950 (Cheeku Singh vs. State of Rajasthan) held that the order passed by the Trial Court was contrary to law, having been passed on the date when the case was fixed for judgment. Reference was also made to Section 353 of the Criminal Procedure Code, 1973 (in short “the Code”).

5. In Cheeku Singh's case (supra), the learned Single Bench of Rajasthan High Court held that Section 311 of the Code is in two parts. Under the first part, any Court, at any stage of inquiry, trial or other proceeding under the 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. Under the second part, the Court is duty bound to summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. In the said case, the name of one of the witness was not mentioned in the list of witnesses, therefore, it was found that the public prosecutor has not pointed out any special circumstances, which may justify that the summoning of such witness for examination for evidence was essential to the just decision of the case within the meaning of second part of Section 311 of the Code.

6. During the course of argument, learned counsel for the petitioner referred to another order passed by a learned Single Bench of Kerala High Court reported as 1985 Cri.L.J. 1288 (Chandran vs. State of Kerala) wherein recall of an Investigating Officer for production and proof of vital record having relevance to the guilt of the accused and that too after conclusion of the evidence, was found to have resulted in miscarriage of justice. Learne