The exercise of discretionary power under Section 311 of CrPC should ensure that the evidence sought to be led is essential for the just decision of the case, and the court must exercise the power judiciously to ensure fair trial for the accused.

JUDGMENT

1. This revision under Section 397/401 of CrPC has been preferred against the order dated 07/2/2020 passed by Fourteenth Additional Sessions Judge, Gwalior in S.T. No. 408/2015 whereby application under Section 311 of CrPC has been rejected.

2. The facts in short are that trial for the offences under Sections 381, 387, 465 120-B, 471, 419 and 468/120-B of the IPC is pending at the defence stage before the trial Court. The applicant had filed an application on 19/12/2019 under Section 311 of CrPC whereby the applicant prayed to call for the Branch Manager of Punjab National Bank, Tansen Road Branch, Gwalior along with documents to verify the sample signature etc. The trial Court has rejected the application of the applicant on the ground that the cause has not been mentioned in the application as to why the aforesaid witness along with documents is essential for the just decision of the case.

3. Learned counsel for the applicant has submitted that on 13/7/2015 i.e. the date of incident, the applicant had sustained gun shot injury on his leg and due to fall on the rock, his right hand also got injured, therefore, he was not able to sign. Despite, alleged allegation has been made against the applicant. It is apparent from the prosecution's record itself that the applicant's hand was injured and, therefore, he was unable to sign. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Supreme Court passed in the case of P. Sanjeeva Rao vs. State of Andhra Pradesh, [(2012) 7 SCC 56] . Hence, prayed to allow this revision.

4. Learned Public Prosecutor has opposed the same and has submitted that no such defence was taken by the petitioner at the time of prosecution evidence. Hence, prayed to reject the revision.

5. Heard learned counsel for the parties and perused the available record.

6. Section 311 of CrPC runs as under:-

' 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 Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar [(2013) 4 SCC 461 has laid down following principles:-

'(a). 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?

(b). 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.

(c). 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.

(d). 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.

(e). 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.

(f). The wide discretionary power should be exercised judiciously and not arbitrarily.

(g). 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.

(h). The object of Section 311 CrPC simultaneously impos