1 2025:CGHC:50372 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved for Order on : 08.09.2025 Order Passed on : 09/10/2025 CRMP No. 65 of 2023 Santram Chouhan S/o Shri Lakhan Lal Chouhan Aged About 39 Years R/o Village Bhathali, Police Station Sariya, District Raigarh (Chhattisgarh) --- Petitioner versus The State Of Chhattisgarh, Through : the Police Station Sariya, District Raigarh (Chhattisgarh) ---- Respondent For Petitioner : Mr. Roop Ram Naik, Advocate For Respondent/State : Mr. Akhilesh Kumar, Govt. Advocate Hon'ble Shri Justice Parth Prateem Sahu CAV ORDER 1. Being aggrieved with the order dated 31.07.2021, passed in Criminal Case No. Special Criminal Case under N.D.P.S. Act/29/2020, by Special Judge, NDPS Act, Raigarh, petitioner has filed this criminal miscellaneous petition, whereby learned Special Judge allowed the application filed U/s. 311 of Cr.P.C. calling Krishnakant Jaiswal, Constable as prosecution witness. 2. Facts relevant for disposal of this petition are that petitioner was arrested in connection with Crime No.156/2020 for alleged commission of offence U/s. 20(B) of N.D.P.S. Act on the allegation that BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.10.10 16:21:56 +0530 2 petitioner was found in possession of 30 KG. contraband Ganja in his house. After completion of investigation, charge-sheet was filed against him under the aforementioned provision. During trial, prosecution after examining the prosecution witnesses have closed their evidence and thereafter, the case was fixed for recording of defence witness on 26.03.2021. On the same date, SHO has brought FSL report before the Court and it also recorded that prosecution after recording evidence of witnesses as mentioned in the witness list have closed the evidence. Final arguments were also heard on 22.07.2021. Thereafter, prosecution has submitted an application U/s. 311 of Cr.P.C. for examining one Constable Krishnakant Jaiswal to prove the receipt dated 11.09.2020 stating him to be important witness. Application filed U/s. 311 of Cr.P.C. was allowed by learned trial Court vide impugned order dated 31.07.2021, which is under challenge in of this petition. 3. Learned counsel for petitioner would submit that order impugned of learned Special Judge allowing the application U/s. 311 of Cr.P.C. is bad in law. Learned trial Court had issued summon to witness Krishnakant Jaiswal (Constable No.282), who is not named in the list of witness enclosed along with final report. Application is filed at belated stage i.e. after completion of final arguments, therefore, the order impugned is not sustainable in eyes of law. Allowing the application is giving a chance the prosecution to fill up the lacuna. Learned trial Court has not recorded any specific finding that evidence of person named in the application U/s.311 of Cr.P.C. is necessary to arrive just decision in the case. The order impugned passed by the 3 learned trial Court is per-se illegal and arbitrary, therefore, it be set- aside. 4. Learned State counsel opposes the submission made by learned counsel for petitioner and supports the order impugned. 5. I have heard learned counsel for parties and perused the documents placed on record. 6. Copy of application U/s. 311 of Cr.P.C. is filed as Annexure P-4. Perusal of the application would show that it clearly mentions that at the time of reading the case it revealed that letter No.928 dated 11.09.2020 written by Police Station Sariya was received by Constable 282 in the office of Superintendent of Police and gave receipt, therefore, examination of Constable Krishnakant Jaiswal is necessary, which is also important for just decision in the case. 7. Reply to the application U/s. 311 of Cr.P.C. was filed as Annexure P-5. In reply to the application, it is mentioned that case is already heard finally, therefore, it will not be appropriate to give an opportunity to examine the Constable 282 to prove the receipt of letter No. 928 dated 11.09.2020, it is also mentioned that the said documents does not bear name of officer or employee. Application is filed only to delay the trial. 8. Learned trial Court in its order has recorded that application U/s. 311 of Cr.P.C. is filed at the stage of passing of judgment. For examining Constable Krishnakant Jaiswal, his name is not in the list of witnesses but according to the pleadings made in the application and submission of counsel for prosecution, he appears to be important witness. Court 4 also observed that though the application is filed at belated stage, but in the interest of justice to decide the case in appropriate manner, application is allowed. 9. Section 311 of Cr.P.C. envisages power to summon material witness or examine person present. Section 311 of Cr.P.C. is extracted below for ready reference :- “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.”. 10. Bare perusal of provision would show that it gives power to Court to summon material witness at any stage of enquiry, trial or other proceedings under this Code. Chapter 17 of the Code of Criminal Procedure, 1973 deals with the charge. Section 228 of Cr.P.C. talks of framing of charge. Section 230 talks of date of prosecution evidence. Section 233 talks of Entering upon defence, Section 234 provides for arguments after completion of examination of witness of defence and Section 235 provides for judgment of acquittal or conviction. Passing of judgment of acquittal or conviction is also a stage for deciding the criminal case. There is no limitation on the power of Court at any stage, which the trial may have reached, for examination of a material witness under Section 311 of Cr.P.C. Under the provisions of Section 5 311 of Cr.P.C., the Court in the interest of justice can call those witness, who were not called for by prosecution but named in the FIR. 11. Hon’ble Supreme Court in case of Rajendra Prasad v. Narcotic Cell, reported in (1999) 6 SCC 110 has observed that oversight or mistake in the matter of conducting the case cannot be understood as lacuna, which means inherent weakness or a latent wedge in the matrix of the prosecution case. Section 311 of Cr.P.C. is a very wide amplitude and if there is any negligence, latches or mistakes by not examining material witnesses, the court’s function to render just decision by examining such witnesses at any stage is not, in anyway, impaired. 12. I also find support from the decision of Hon’ble Supreme Court in case of Shailendra Kumar v. State of Bihar, reported in (2002) 1 SCC 655. The decision relied upon by learned counsel for petitioner in case of Yogesh Bajpai Vs. State of Chhattisgarh in Cr.M.P. No.405 of 2021 decided on 09.07.2021 is on different facts. In that case, the appellate Court remanded back the case to the learned trial Court to get examination of witness Irfan UI Rahim Khan. It is the petitioner therein after cross-examining the witness pursuant to the order of appellate Court had submitted an application U/s. 311 of Cr.P.C. before the trial Court to recall two witness (P.W.-1) Umakant Kaushik, (P.W.-5) Lalit Kumar Dhritlahare for further cross-examination. 13. In the case of Zahira Habibullah Sheikh & Anr. vs. State of Gujarat, reported in (2006) 3 SCC 374 while considering the provisions U/s. 311 of Cr.P.C. observed that it is the cardinal rule in the law of evidence that best available evidence should be brought before the 6 Court. Hon’ble Supreme Court has further observed in para -26 as under :- “26. In this context, reference may be made to Section 311 of the Criminal Procedure Code which reads as follows:- “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.” The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court 7 should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.” 14. Hon’ble Supreme Court in case of Harendra Rai v. State of Bihar, reported in (2023) 13 SCC 563 observed that Section 311 of Cr.P.C. 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. This power can be exercised not only by the trial court but also by the appellate court or Revisional Court. The logic behind this provision is that the endeavour of the courts is to find out the truth which would be essential for the just decision of the case. 15. In the case at hand, petitioner herein is charged for offence U/s. 20 (B) of N.D.P.S. Act for possessing 30 Kg. Ganja in his house. Police after completion of investigation as provided under the law submitted charge-sheet, however, during the trial, prosecution could not able to exhibit document i.e. receipt of letter sent by Station House Officer of Police Station Sariya to the office of Superintendent of Police received by the Constable Krishnakant Jaiswal. The witness is sought to be called only to prove the said document which is a receipt of information. 8 16. As the object of Section 311 of Cr.P.C. is to find out truth which would be essential for just decision of the case, in the opinion of this Court learned trial Court has not committed any error of law in allowing the application U/s. 311 of Cr.P.C. and calling Krishnakant Jaiswal constable for his examination as witness. 17. For the foregoing discussion, I do not find any merit in this petition accordingly, it is dismissed. Registry is directed to sent copy of this order to the concerned trial Court for information and appropriate action. Sd/- (Parth Prateem Sahu) Judge Balram