2025:HHC:32956 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 869 of 2025 Reserved on: 11.09.2025 Decided on: 22.09.2025 Vishal Verma .…..Petitioner Versus State of H.P. & others ……Respondents Coram The Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner: Mr Parikshit Sharma, Advocate. For the Respondent/State: Mr Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition against the order, dated 25.08.2025, passed by learned Sessions Judge, Solan, District Solan, H.P. (learned Trial Court) in Criminal Complaint bearing No. 25-S/07 of 2022 titled State of H.P. vs. Vishal Verma. 2. Briefly stated, the facts giving rise to the present petition are that the complainant, Drugs Inspector, filed a complaint before the learned Trial Court for the commission of offences punishable under Sections 27(d), 28 and 28A of the Drugs and Cosmetics Act. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2025:HHC:32956 3. Learned Trial Court charged the accused with the commission of the aforesaid offences. When the matter was listed for the prosecution’s evidence, the State of H.P. filed an application under Section 348 of Bhartiya Nagrik Suraksha Sanhita(BNSS). It was asserted that Basant Mittal,Drugs Inspector, who had obtained prosecution sanction and sent the samples for chemical analysis and Preeti Sharma, Drugs Inspector, who had filed a complaint, were not cited as witnesses. Their examination was essential. The accused would get an opportunity to cross-examine the witnesses, and no prejudice would be caused to him. Therefore, it was prayed that the present application be allowed and aforesaid witnesses be summoned. 4. The application was opposed by filing a reply taking a preliminary objection regarding the lack of maintainability. It was asserted that the application was filed belatedly to fill up the lacuna. The complaint does not include the names of Basant Mittal and Preeti Sharma in the list of witnesses. Mehar Chand, who had handed over the sample at SFSL, was given up. The provisions of Section 311 of Cr.P.C. cannot be used to change the nature of the case. Therefore, it was prayed that the present application be dismissed. 3 2025:HHC:32956 5. Learned Trial Court held that the complaint mentioned that the permission to launch the prosecution against the accused was granted by the State Drugs Controller,Baddi, which was received on 23.04.2018. The document also showed that Basant Mittal had sent the sample to a government analyst. Priti Sharma had filed the complaint.Their examination is necessary for the just decision of the case. Hence, the application was allowed, and the witnesses were ordered to be summoned for 29.08.2025. 6. Being aggrieved by the order passed by the learned Trial Court, the accused has filed the present petition asserting that the learned Trial Court wrongly exercised the jurisdiction vested in it. The State was permitted to fill up the lacuna left by it at the time of filing of the complaint. The application was filed to change the nature of the complaint. The examination of witnesses would cause a serious prejudice to the accused. The additional evidence is an attempt to create contradictory evidence, which is impermissible. Therefore, it was prayed that the order passed by the learned Trial Court be set aside. 7. I have heard Mr.Parikshit Sharma, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 4 2025:HHC:32956 8. Mr Parikshit Sharma, learned counsel for the petitioner, submitted that the learned Trial Court erred in allowing the application. The State had not cited Basant Mittal and Preeti Sharma as the witnesses. Their examination amounted to filling up the lacuna left by the State. Their examination would cause serious prejudice to the accused. Learned Trial Court failed to appreciate this aspect. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 9. Mr Lokender Kutlehira, learned Additional Advocate General for the respondent/State, submitted that the names of the witnesses were not mentioned in the list of witnesses due to inadvertence. No prejudice would be caused to the accused by permitting the State to examine the witnesses. Basant Mittal had sent the samples to SFSL, and his examination is necessary to prove the chain of custody. Priti Sharma filed the complaint,and her examination is necessary to prove that the complaint was filed by a duly authorised person. Therefore, he prayed that the present petition be dismissed. 10. I have given considerable thought to submissions made at the bar and have gone through the records carefully. 5 2025:HHC:32956 11. It was laid down by the Hon’ble Supreme Court in Varsha Garg v. State of M.P., (2023) 19 SCC 646: 2022 SCC OnLine SC 986 that the Court has the power under Section 311 of Cr.P.C. to summon any witness, recall or re-examine any person for the just decision of the case. It was observed at page 659: - 31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the court “may”: (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the court “shall” summon and examine or recall and re-examine any such person “if his evidence appears to the court to be essential to the just decision of the case”. Section 311 contains a power upon the court in broad terms. The statutory provision must be read purposively to achieve the intent of the statute to aid in the discovery of truth. 32. The first part of the statutory provision, which uses the expression “may”, postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the court as it uses the expression “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”. Essentiality of the evidence of the person who is to be examined, coupled with the need for a just decision of the case, constitutes the touchstone which must guide the decision of the court. The first part of the statutory 6 2025:HHC:32956 provision is discretionary, while the latter part is obligatory. 33. A two-Judge Bench of this Court in Mohanlal Shamji Soni [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595] while dealing with parimateria provisions of Section 540 of the Criminal Code of Procedure, 1898 observed : (SCC p. 279, para 16) “16. The second part of Section 540, as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness, and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision — either discretionary or mandatory — depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.” 34. S. Ratnavel Pandian, J. speaking for the two-Judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the “evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means”. In that context, the Court observed : (Mohanlal Shamji Soni case [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595], SCC p. 280, para 18) “18. … Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to 7 2025:HHC:32956 undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.” 35. Summing up the position as it obtained from various decisions of this Court, namely, Rameshwar Dayal v. State of U.P., (1978) 2 SCC 518: 1978 SCC (Cri) 311, State of W.B. v. Tulsidas Mundhra, 1962 SCC OnLine SC 413: 1963 Supp (1) SCR 1, JamatrajKewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19 : (1967) 3 SCR 415: AIR 1968 SC 178, Masalti v. State of U.P., 1964 SCC OnLine SC 30 : (1964) 8 SCR 133: AIR 1965 SC 202, Rajeswar Prasad Misra v. State of W.B., 1965 SCCOnLine SC 122 : (1966) 1 SCR 178: AIR 1965 SC 1887 and Ratilal Bhanji Mithani v. State of Maharashtra, (1971) 1 SCC 523: 1971 SCC (Cri) 231], the Court held : (Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595], SCC p. 283, para 27) “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” 36. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. 8 2025:HHC:32956 The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realisation of justice is manifest. 12. It was further held that filling up the loopholes is a subsidiary factor, and the Court should be concerned with the essentiality of the evidence. It was observed at page 662: - 43. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108 : (2009) 2 SCC (Cri) 455], the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374: (2006) 2 SCC (Cri) 8], SCC p. 393, para 28] 28. … The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on an inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes, the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must, of course, depend on the facts of each case, and has to be 9 2025:HHC:32956 determined by the Presiding Judge.”(emphasis supplied) 44. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218, while reiteratingRajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110: 1999 SCC (Cri) 1062, the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110: 1999 SCC (Cri) 1062, the Court had held that : (Rajendra Prasad case [Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110: 1999 SCC (Cri) 1062], SCC p. 113, para 8) “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as an irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, the function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”(emphasis supplied) 45. In the present case, the importance of the decoding registers was raised in the examination of PW 41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in the form of the call details, which are already on record but use codes to signify the location of the accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the 10 2025:HHC:32956 requirement of being relevant material which was not brought on record due to inadvertence. 46.Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839, a two-Judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839observed : (SCC p. 331, paras 11-12) “11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons, and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at a belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.” 47. In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for the summoning of the witness under Section 311 was dismissed. Though the dismissal of the application and 11 2025:HHC:32956 the closure of the prosecution evidence both took place on 13-11-2021, the application by the prosecution had been filed on 15-3-2021, nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross-examination on the same day as recorded in the order dated 13-11-2021 of the trial court. 48. The court is vested with a broad and wholesome power, in terms of Section 311CrPC, to summon and examine or recall and re-examine any material witness at any stage, and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999 while dealing with the prayers for adducing additional evidence under Section 391CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311CrPC explained the role of the court, in the following terms : (SCC pp. 188-89, para 43) “43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of the court to elicit all necessary materials by playing an active role in the evidence- collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into the record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective, i.e. truth, is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishful or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts cannot also play into the hands of such prosecuting 12 2025:HHC:32956 agency, showing indifference or adopting an attitude of total aloofness.”(emphasis supplied) 49. Further, in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8, the Court reiterated the extent of powers under Section 311 and held that : (SCC p. 392, para 27) “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue a summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311, the significant expression that occurs is at any stage of any inquiry, trial or other proceeding under this Code. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power, the greater is the necessity for application of judicial mind.”(emphasis supplied) 50. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595 stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that : (Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999], SCC p. 189, para 44) “44. The power of the court under Section 165 of the Evidence Act is, in a way, complementary to its power under Section 311 of the Code. The section consists of 13 2025:HHC:32956 two parts, i.e., (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. The object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined, neither to help the prosecution nor the defence, if the court feels that there is a necessity to act in terms of Section 311, but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.”(emphasis supplied) 51. While reiterating the decisions of this Court in Karnel Singh v. State of M.P., (1995) 5 SCC 518: 1995 SCC (Cri) 977, Paras Yadav v. State of Bihar, (1999) 2 SCC 126: 1999 SCC (Cri) 104, Ram Bihari Yadav v. State of Bihar, (1998) 4 14 2025:HHC:32956 SCC 517: 1998 SCC (Cri) 1085 and Amar Singh v. Balwinder Singh, (2003) 2 SCC 518: 2003 SCC (Cri) 641 this Court held that the court may interfere even at the stage of appeal : (Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999], SCC p. 196, para 64) “64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts — coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.” 13. In the present case, the complaint specifically mentioned that the then Drugs Inspector had taken samples and sent them to SFSL for analysis. The learned Trial Court pointed out that the documents were annexed to the complaint, showing that the samples were sent and the prosecution sanction was obtained by Basant Mittal and the complaint was filed by Priti Sharma; therefore, the accused was not caught by any surprise as the State was only proving the facts which were asserted in the complaint or were supported by material on record. 14. Therefore, the submission that the accused would be caughtby surprise by the examination of the witnesses is not 15 2025:HHC:32956 correct. Learned Trial Court rightly pointed out that the examination of Basant Mittal was essential to prove the sanction and the chain of custody. The examination of Priti Sharma was essential to prove that the complaint was filed by an authorised officer. Therefore, the findings recorded by the learned Trial Court that the examination of witnesses is essential cannot be faulted. The learned Trial Court rightly exercised the discretion vested with it to summon additional evidence, and there is no reason to interfere with the discretion exercised by the learned Trial Court while exercising the inherent jurisdiction of this Court. 15. No other point was urged. 16. In view of the above, the present petition fails and the same is dismissed, so also the pending application(s), if any. 17. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 22nd September 2025 (ravinder)