1 2025:CGHC:49346 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3002 of 2025 1 - Pankaj Yadav S/o Shri Vijay Yadav, Aged About 30 Years, R/o Shivpur, Thana- Dubhad, Distt. Ballia, (Uttar Pradesh), Present Address- Near Railway Station Ticket Counter, Rented House of Pandey Village Baikunth, Thana, Tilda Newara, Distt. Raipur, Chhattisgarh. ... Petitioner/Applicant versus 1 - State of Chhattisgarh Through Station House Officer, Thana Tilda Newra, Distt. Raipur, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Applicant/Petitioner : Mr. Mahesh Kumar Mishra, Advocate. For State/Non-applicant : Ms. Sunita Manikpuri, Deputy Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 25-09-2025 1. The present CRMP has been filed by the petitioner/applicant under Section 528 of B.N.S.S., 2023 against the impugned order dated 07-05-2025 passed by the learned 9th Additional Sessions Judge, Raipur (C.G.) in Sessions Case No.249/2022 whereby the application filed by the petitioner/applicant under Section 311 of the Cr.P.C. (348 of B.N.S.S., 2023) has been rejected. 2. The brief facts of the case are that, the petitioner/applicant is accused in Crime No.296/2022 registered at P.S. Tilda Nevra, District Raipur for the offence under Section 302, 147, 148, 149, 294, 323 and 506B of the IPC. He is facing trial of the Sessions Case No.249/2022 along with three other co- accused persons before the learned 9th Additional Sessions Judge, Raipur. Charges have been framed against the accused persons on 14-11-2022 and Digitally signed by MOHAMMED AADIL KHAN Date: 2025.10.17 20:19:06 +0530 2 thereafter, the learned trial Court proceeded for recording evidence of the prosecution’s witnesses. During the trial PW-1 Vikas Singh has been examined on 02-03-2022, PW-2 Nikhil Kumar Rajput has been examined on 03-03-2022, PW-3 Ajay Kumar Bhoi has been examined on 04-03-2022 and PW-4 Aman Verma has been examined on 14-07-2023, thereafter other witnesses have been examined during the course of trial and on 18-01-2024 PW-9 Kumar Sindhi was examined. There are other accused persons in the case who are juvenile in conflict in law and charge sheet has been filed against them before the learned Juvenile Justice Board, Raipur where also the trial of the case is going on against them and during their trial PW-1 Kumar Sindhi has been examined on 25-07-2024, Aman Verma has been examined as PW-2 on 27-08-2024, Ram Sahay @ Ramsai has been examined as PW-3 on 27-08-2024, Ajay Kumar Bhoi has been examined as PW-4 on 27-08-2024 and Nikhil Kumar has been examined as PW-5 on 20- 11-2024. On 08-04-2025 the petitioner filed an application under Section 311 of the Cr.P.C. for recalling of witnesses PW-2 Nikhil Kumar Rajput and Aman Verma PW-4 of the present case for their re-cross-examination in view of the fact that these two witnesses are also the witnesses in the trial pending before the learned Juvenile Justice Board, Raipur against the juveniles in conflict with law and there are material discrepancies in the evidence of these two witnesses in both the places. Therefore, these two witnesses may be recalled for their re-cross-examination. The said application of the petitioner has been rejected by the learned trial Court on 07-05-2025 against which the present petition has been filed. 3. Learned counsel for the petitioner/applicant would submit that there is two contrary statement made by the witnesses in two different places and therefore, confrontation of the evidence of the witnesses PW-2 Nikhil Kumar Rajput and PW-4 Aman Verma with their evidence recorded before the learned Juvenile Justice Board are necessary for just decision of the case. 3 The trial of the case is in progress and it is not for delaying the trial of the case, but for just decision of the case. Before the learned Juvenile Justice Board both the aforesaid witnesses have not supported the prosecution’s case and denied the allegation against the accused persons. However, in the present sessions trial they deposed against the accused persons. He would further submit that the application of the petitioner has been decided by non- speaking order without assigning any reason. To prevent miscarriage of justice, recalling of the aforesaid witnesses are necessary as the petitioner is facing trial for capital offence of murder. Therefore, one opportunity may be granted to the petitioner to recall PW-2 Nikhil Kumar Rajput and PW-4 Aman Verma for their re-cross-examination to confront them with their evidence recorded before the learned Juvenile Justice Board, Raipur. 4. On the other hand, learned counsel appearing for the State opposes the submission made by learned counsel for the petitioner and submitted that the evidence of PW-2 Nikhil Kumar Rajput and PW-4 Aman Verma was recorded before the Sessions Court on 03-03-2022 and 14-07-2023 respectively, however, much later thereof these two witnesses have been examined before the learned Juvenile Justice Board on 20-11-2024 and 27-08-2024 respectively. The witnesses who have already been examined and detailed cross-examined by the accused cannot be recalled for their re-cross- examination to fulfill lacuna and it would amount to reopening of the entire prosecution’s case. She would also submit that sufficient opportunity was provided to the learned counsel for the petitioner/accused at the time of the examination and cross-examination of these two witnesses and they have been cross-examined at length. She would further submit that the learned trial Court has passed the reasoned order that even if the witnesses have not supported the prosecution’s case before the learned Juvenile Justice Board, that would not affect the evidence given by the witnesses before Sessions Court. Therefore, the witnesses cannot be recalled for their re-cross- 4 examination and the learned trial Court has rightly rejected the application and the present petition is also liable to be dismissed. 5. I have heard learned counsel for the parties and perused the documents annexed with the petition. 6. It transpires from the documents that PW-2 Nikhil Kumar Rajput is examined on 03-03-2022 and PW-4 Aman Verma has been examined on 14-07-2023 before the learned Sessions Court and they have been cross-examined in every aspect of the matter, their examination and cross-examination have been completed and thereafter other witnesses have also been examined. It has been disclosed in the application filed by the petitioner/applicant Annexure A/4 that PW-2 Nikhil Kumar Rajput is witness of notice, memorandum, seizure, panchnama and arrest of the accused persons and Aman Verma PW-4 is eye-witness to the incident who have been fully cross- examined by their counsel. 7. In the matter of Ratan Lal Vs. Prahlad Jat reported in (2017) 9 SCC 340, the Hon’ble Supreme Court has held that:- "16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is 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". 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person 5 already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. in Vijay Kumar v. State of Uttar Pradesh and Αnr.. (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under: 17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously". 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others. (2006) 3 SCC 374, this Court has considered the concept underlining under Section 311 as under:- "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 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 or 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". 6 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Ant.. (2016) 2 SCC 402, it was held thus: “……………..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 not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined". 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- "38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7- 1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5- 1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an Application was got fled by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would fife an application on his own will and volition. The said application was, therefore, rightly dismissed. 22. Coming to the facts of the present case, PWS 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross- examined at length during the said period. During the police investigation and in their evidence, they have supported the 7 prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order." 8. From perusal of the impugned order makes it clear that the witnesses PW-2 Nikhil Kumar Rajput was examined and cross-examined long back on 03-03- 2022 and PW-4 Aman Verma was examined and cross-examined on 14-07- 2023. They have been cross-examined by the learned counsel for the accused at length and gave reply to all the questions put to them. Later on, Aman Verma has been examined and cross-examined before the learned Juvenile Justice Board with respect to the juveniles in conflict with law on 27- 08-2024 and Nikhil Kumar was examined and cross-examined on 20-11- 2024. They made their depositions before the learned Juvenile Justice Board with respect to juveniles in conflict with law, as to whether or not they have been involved in the offence or what were the allegations against them in the charge sheet, however, in the present sessions trial against the present petitioner/accused they made their depositions whatever they have in knowledge. After passage of time, the accused filed an application under Section 311 of the Cr.P.C./348 of B.N.S.S. on 08-04-2025 for recalling of PW- 2 Nikhil Kumar Rajput and PW-4 Aman Verma to confront their deposition made before the learned Juvenile Justice Board. The entire scenario shows that these two witnesses may have been one over by the defence. It is settled law that the benefit of Section 311 of the Cr.P.C./348 of B.N.S.S. cannot be extended to the accused to fill up the lacuna. Their deposition may vary with respect to different accused persons and the Court has to chose the grain from chaff. Merely by saying that the witness have not stated anything about the juveniles in conflict with law in the trial pending before the 8 learned Juvenile Justice Board, cannot be a ground to recall those witnesses in the present sessions case to confront with their deposition as they have already made their deposition in the present sessions case against the petitioner/accused. The witnesses are examined and cross-examined at length. Provisions of Section 311 of the Cr.P.C. can be invoked only in order to meet the ends of justice for strong and valid reason with great caution and circumspection and not to permit the accused to call the witness again and again for their re-cross-examination. Unfair advantage cannot be given to any of the parties and no one can be permitted to recall the witnesses for further re-cross-examination on the ground that at a different point of time he made different deposition with respect to different accused. 9. In view of the above discussions, this Court does not find any error in the impugned order passed by the learned trial Court rejecting the application filed under Section 311 of the Cr.P.C./348 of B.N.S.S., 2023. Accordingly, the present petition is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Aadil