- 1 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 11107 OF 2025 C/W CRIMINAL PETITION NO. 11117 OF 2025 IN CRL.P No. 11107/2025 BETWEEN: VICTIM XXX (CW-3-PS-1) (CW-3 - PW-1) XXXX XXXX XXXX XXXX XXXX …PETITIONER (BY SRI HASHMATH PASHA, SR.ADVOCATE FOR SRI MOHAMMED MUBARAK, ADVOCATE) AND: 1. STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE STATION, INVESTIGATED BY DEPUTY SUPERINTENDENT OF Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 POLICE CHITRADURGA SUB-DIVISION CHITRADURGA – 577 501. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BENGALURU – 560 001). 2. DR. SHIVAMURTHY MURUGASHARANARU S/O GURU MURTHY, AGED ABOUT 67 YEARS, R/AT MURUGHA RAJENDRA BRUHAN MUTT, CHITRADURGA, NATIVE OF GODABANALU VILLAGE, CHITRADURGA TALUK – 577 501. 3. MISS. RASHMI D/O LATE SHASHIDHAR, AGED ABOUT 27 YEARS, OCCUPATION:WARDEN OF AKKAMAHADEVI HOSTEL, MURUGHA RAJENDRA MUTT, CHITRADURGA. NOW R/AT BMCH HOSPITAL SJMIT CAMPUS, MEDEHALLI, CHITRADURGA – 577 501, NATIVE OF KUDLGI TOWN, VIJAYAPURA DISTIRCT. 4. MR. PARAMASHIVAIAH A.J., S/O LATE JAYADEVAIAH, AGED ABOUT 62 YEARS, SECRETARY OF SJM VIDYAPEETA, CHITRADURGA. R/AT P AND T QUARTERS, - 3 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 NEAR HOLALKERE ROAD, CHITRADURGA – 577 501. …RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI C.V.NAGESH, SR.ADVOCATE FOR SRI K.B.K.SWAMY, ADVOCATE FOR R2 TO R4) THIS CRL.P IS FILED U/S 482 CR.P.C (U/S 528 BNSS) PRAYING TO QUASH THE ORDER DATED 19.07.2025 PASSED IN SPL.CASE (P) NO.182/2022 ARISING OUT OF CRIME NO.387/2022, PENDING ON THE FILE OF THE HONBLE SPECIAL IIND ADDL.DISTRICT AND SESSIONS JUDGE, CHITRADURGA AS PER ANNEXURE-A AS ILLEGAL AND ABUSE OF PROCESS OF LAW AND CONSEQUENTLY DIRECT THE HONBLE COURT BELOW TO ALLOW THE PROSECUTION TO PRODUCE TWO LETTERS DATED 07.07.2007 AND 22.11.2022 AS PER ANNEXURE-B AND TO RECALL PW-14 MR.S.K. BASAVARAJAN FOR FURTHER EXAMINATION AND TO PROVE THOSE DOCUMENTS AND THERE AFTER TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW. IN CRL.P NO. 11117/2025 BETWEEN: 1. IN CRL.P NO. 11117/2025 BETWEEN: 1. VICTIM XXX (CW-2-PW-1) XXXX XXXX XXXX XXXX ...PETITIONER (BY SRI HASHMATH PASHA, SR.ADVOCATE FOR - 4 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 SRI MOHAMMED MUBARAK, ADVOCATE) AND: 1. STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE STATION, INVESTIGATED BY DEPUTY SUPERINTENDENT OF POLICE CHITRADURGA SUB-DIVISION CHITRADURGA – 577 501. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BENGALURU – 560 001). 2. DR. SHIVAMURTHY MURUGASHARANARU S/O GURU MURTHY, AGED ABOUT 67 YEARS R/AT MURUGHA RAJENDRA BRUHAN MUTT, CHITRADURGA, NATIVE OF GODABANALU VILLAGE, CHITRADURGA TALUK – 577 501. 3. MISS. RASHMI D/O LATE SHASHIDHAR, AGED ABOUT 27 YEARS, OCCUPATION: WARDEN OF AKKAMAHADEVI HOSTEL, MURUGHA RAJENDRA MUTT, CHITRADURGA. NOW R/AT BMCH HOSPITAL SJMIT CAMPUS, MEDEHALLI, CHITRADURGA – 577 501 NATIVE OF KUDLGI TOWN, VIJAYAPURA DISTIRCT. - 5 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 4. MR. PARAMASHIVAIAH A.J., S/O LATE JAYADEVAIAH, AGED ABOUT 62 YEARS, SECRETARY OF SJM VIDYAPEETA, CHITRADURGA. R/AT P AND T QUARTERS, NEAR HOLALKERE ROAD, CHITRADURGA – 577 501. ...RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R1; SRI C.V.NAGESH, SR.ADVOCATE FOR SRI K.B.K.SWAMY, ADVOCATE FOR R2 TO R4) THIS CRL.P IS FILED U/S 482 CR.P.C (U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER DATED 19.07.2025 PASSED IN SPL.CASE P. NO.181/2022 PENDING ON THE FILE OF HONBLE SPECIAL II ADDL.DIST. AND SESSIONS JUDGE, CHITRADURGA AS PER ANNEXURE A AS ILLEGAL AND ABUSE OF PROCESS OF LAW AND CONSEQUENTLY DIRECT THE HON’BLE COURT BELOW TO ALLOW THE PROSECUTION TO PRODUCE TWO LETTERS DATED 07.07.2007 AND 22.11.2022 AS PER ANNEXURE B AND TO RECALL PW-14 MR.S.K.BASAVARAJAN FOR FURTHER EXAMINATION AND TO PROVE THOSE DOCUMENTS AND THEREAFTER TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 6 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners/victims, in both the cases, are before this Court calling in question order dated 19-07-2025 passed in Special Case (Petition) No.181 and 182 of 2022 before the concerned Court, which rejects the application filed under Section 311 r/w Section 91 of the Cr.P.C. filed seeking to recall P.W.14 for further examination and to produce certain documents. 2. Facts in brief, germane, are as follows: A crime comes to be registered in Crime No.155 of 2012 for offences punishable under Sections 17, 5L and 6 of the POCSO Act and under Sections 376(2)(n), 376(3) r/w Section 149 of the IPC. Thereafter, on its transfer to Chitradurga Rural Police Station, it was registered as FIR in Crime No.387 of 2022 and much water has flown after the registration of the crime, narration of which would not be necessary for consideration of the issue in the lis. - 7 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 3. The prosecution witness, P.W.14, one S. K. Basavarajan was examined on 07-12-2024, and 16-12-2024. After the said examination, several other witnesses are also examined. The subject application is filed by the prosecution, seeking production of two documents which concerns P.W.14 and seeking his recall for further examination. The concerned Court, by the impugned order 19-07-2025 rejects the application. The rejection of the application is now challenged by the victims in these two petitions. 4. Heard Sri Hashmath Pasha, learned senior counsel appearing for petitioners, Sri B N Jagadeesh, learned Additional State Public Prosecutor, appearing for respondent No.1 and Sri C V Nagesh, learned senior counsel appearing for respondents 2 to 4. 5. Learned senior counsel Sri Hashmath Pasha appearing for the petitioners submits that the two letters which are in the nature of encomiums to P.W.14, given by the accused, way back in the year 2007 are necessary to be placed on record and to give evidence on that as well. He would submit that the - 8 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 purport of Section 311 is to steer clear any controversy that arise at the time of evidence and that no prejudice would be caused to the accused, if the said two documents are produced and examination on those two documents of P.W.14 re- happens. Learned senior counsel submits that the order of the concerned Court is an error and is contrary to the purport of Section 311 of the Cr.P.C. 6. Per-contra, learned senior counsel Sri C V Nagesh would take this Court through the documents appended to the petition to demonstrate that the matter has reached the Apex Court and the Apex Court has directed conclusion of the trial within an year and time for extension is also sought, which is pending consideration at the hands of the Apex Court. Learned senior counsel would otherwise contend that the documents that are sought to be marked by way of an application under Section 91 of the CPC is by the prosecution and that of Prosecution Witness No.14. He is not the accused, he is not the first informant and nothing would change by marking of those documents. Therefore, for the asking, the application - 9 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 under Section 311 r/w 91 of the Cr.P.C. should not be permitted, is the submission of the learned senior counsel. 7. Both the learned senior counsel appearing for the petitioner and the respondents have placed reliance on certain judgments, which would bear consideration in the course of the order. 8. I have given my anxious consideration to the submissions made by the respective learned senior counsels and the learned Additional State Public Prosecutor and have perused the material on record. 9. The afore-narrated facts are all a matter of record. The issue has driven the petitioners/victims to this Court is not something that is passed against the victims. It is an application filed by the prosecution seeking recall of P.W.14 for further examination and seeking production of 2 documents. What are those documents is germane to be noticed. They are as follows: “UÉ, ೕ ಎ.ೆ. ಬಸವಾಜ - 10 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 ಆಡಾಾ ೕ ಮುರುಮಠ ತದುUÀð ಾಂಕ 07-07-2007ರಂದು ಾವ" ೕಮಠದ ಆಡಾಾ ಹು$ೆ%&ೆ ಸ'ಇ)ೆ*+ಂದ ,ೕ-ರುವ ಾ.ಾ/ಯನು2 ಅಂ4ೕಕಸ5ಾ4$ೆ. 6ಯ ಜಗದು8ರುಗಳ: ;ಂ&ೈಕ=ಾದ ನಂತರಂದ ಾವ" ೕಮಠದ ಆಡಾಾಗ>ೆಂದು ೇಮಕ?ಾ4 ಇಂನವೆ&ೆ ೕಮಠದ ಎ5ಾ@ ಾಯA ಚಟುವDೆಗಳನು2 ,EೆF+ಂದ, ದGೆ+ಂದ ,ವA6Hರುವ"ದನು2 ಾವ" ಮತುI ೕಮಠ ಕೃತKೆ+ಂದ ಸLಸುತI$ೆ. ತMLಂದ ೆರ?ಾದ ಈ ಹು$ೆ%ಯನು2 ಇಂ,ಂದ Oಾ&ೆ ಬರುವಂೆ ರದು%ಪ-ಸ5ಾ4$ೆ. ಇನು2ಮುಂ$ೆ ,ೕವ" ೕ ಜಗದು8ರು ಮುರುಘಾOೇಂದ R$ಾ=Sೕಠದ ಾಯAದAಗ>ಾ4 ಮುಂದುವದು ಆ ೆಲಸಗಳನು2 ದGೆ+ಂದ ,ವA6ಸಲು ಆ$ೇಸ5ಾ4$ೆ.” …. …. …. “To Thursday, November 22, 2007 Sri.S.K.Basavarajan S/o.Karisiddaiah Aged about 46 years R/at. 2nd Main 1st Cross B.V.K.S.Lay-out Chitradurga Sub: Your Resignation letter to the post of Secretary, SJM Vidyapeeta® Chitradurga Dear Basavarajan, Since for the past more than 35 years you had served the Bruhanmath to it's satisfaction under various capacities with great satisfaction to me and the math as well. On 21-11-2007 you had sent a resignation letter to me for the above said post. The said letter of resignation is duly accepted by me and we have (SJM Math) no claims what so ever against you and further abandoned any rights to claim against you. You had dedicated your most precious time to math and to my great satisfaction and accompanied me in good - 11 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 and bad days with such goodness, love, affection and understanding. You had stated in your resignation letter that you have resigned for your own personal reasons accordingly the said letter is duly accepted by me and I wish may Lord Basaveshwara blessing you all the successes in your future endeavors. Thanking You Your’s faithfully Sd/- Sri. Shivamurthymugasharanaru” The application filed before the concerned Court reads as follows: “APPLICATION U/S 311 OF CR.P.C R/W SECTION 91 OF CR.P.C.. FILED ON BEHALF OF PROSECUTION. It is respectfully submitted that Chitradurga Rural Police have filed the Charge Sheet against the above accused persons for an offences u/s 376[2][N] IPC, 4,5[L],6,17 of POCSO Act before this Hon'ble Court. It is submitted that prosecution evidence is closed and accused statement is recorded u/s 313 of CR.P.C. It is submitted that the prosecution has examined Sri.S.K.Basavarajan as PW-14 as prosecution witness and the specific contention of the accused is PW- 14 has misused his power and misappropriated the MUTT funds as Administrator. It is respectfully submitted that the accused No.1 had given appreciation letter to PW-14 on 7-7-2007 and on 22-11-2007 when he resigned as Administrator. It is submitted that the Letters of Appreciation given by the accused No.1 to PW-14-are very much necessary to be produced before this Hon'ble Court for just and fair adjudication of the above case. - 12 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 Therefore it is respectfully prayed this Hon'ble Court be pleased to Recall PW- 14-S.K.Basavarajan to produce the Appreciation Letters given by the accused No.1 and to give evidence, by allowing this application in the interest of justice.” The concerned Court, by its order dated 19-07-2025 has rejected both the applications. The reason for rejection is as follows: ”…. …. …. 7. Point No.1: Chitradurga Rural P.S has filed charges sheet against the accused for the offences punishable under Section 376(2)(n), 376(DA), 376(3), 201, 202, 506 read with Section 34 of IPC, Sections 5(1), 6 and 17 of Protection of Children from Sexual Offences Act, Sections 3(f) and 7 of Religious Institutions (Prevention of Misuse) Act, 1988 and Section 75 of Juvenile Justice (Care and Protection of Children) Act 2015. This court has framed the charge against the accused Nos.1 to 3 for the offences punishable under Section 376(2)(n), 376(3), 504, 506, 323 of IPC and Section 5(1), 6 read with Section 17 of POCSO Act. 8. In this case, prosecution has examined as 54 witnesses as Pws.1 to 54 and closed its side. Thereafter, the statement of the accused as per Section 313 of Cr.P.C was recorded. At this stage the learned Spl. Public Prosecutor has filed application seeking to recall PW-14 for production of documents i.e., appreciation letters issued by the accused No.1 in favour of PW-14 during the period of 2007. The contention of the learned Spl. Public Prosecutor is that accused No.1 has taken defence that PW-14 has misused his power and misappropriated the Mutt Funds as administrator and in order to disprove the said fact prosecution intends to furnish the appreciation letters issued by the accused No.1 in favour of PW-14. - 13 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 9. The case of the prosecution is that victim was studying in Murugha Mutt school and victim was residing in the Akkamahadevi vasathi Nilaya and at that time accused No.1 used to call the victim to his private room and used to commit sexual assault and sexual intercourse on the victims. 10. The case of the prosecution is that victim Informed the said fact to PW.14 and PW.15. Then they took the victim to Mysore Odanadi Seva Sumsthe. Then official of the Odanadi Seva Sumsthe conducted counseling and found that accused No.1 committed sexual assault and sexual intercourse on the victim. Then handed over the victims to CWC at Mysore. Then CWC official has filed complaint to the Mysore Nazarbad police station. In this case, victim is the material witness. Entire case of the prosecution is realise upon the evidence of the victim. PW-14 is only helped the victim for counseling in Odanadi Seva Sumsthe. 11. As per the defence of the accused, PW-14 earlier was working in Murugha Mutt as a Secretary and Administrator of SJM Society and due to his conduct he was removed from the Mutt and also SJM society in 2007. Thereafter, he was again appointed as Secretary and Administrator to the Mutt and SJM society in 2022. The defence of the accused is that PW-14 has misused the funds of Mutt and Society. Therefore, he was removed from the Mutt and SJM society. Now PW-14 intends to produce the appreciation letter given by the accused to show that he has not misused the funds of Mutt when he was working in the Mutt and also in the SJM society. 12. Section 311 of Cr.P.C which reads as under:- 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 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 - 14 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 his evidence appears to it to be essential to the just decision of the case. Section 91 of Cr.P.C which reads as under:- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. 13. The advocate for the petitioner has furnished the following decisions. 1. 1985 SCC OnLine P & H 361 between Mauji Ram Vs. The State of Haryana, wherein it is held as under:- In the present case, as observed earlier. prosecution had an opportunity of examining Om Singh PW at an earlier stage. He did not refer to any documents which are sought to be produced at this stage by the prosecution. Nor any mention was made of the aforesaid documents in his statement under Section 161 of the Code of Criminal Procedure. There was no justifiable ground for the learned trial judge to allow the application of the Public Prosecutor at this stage. To allow the application at this stage would certainly amount to filing in the lacuna and undoing the case of the defence. I am afraid that by the mere insertion of the words in his order by the learned Sessions Judge that it was necessary for the just decision of the case to - 15 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 allow the application the requirement of Section 311 of Code of Criminal Procedure is not fulfilled. 2. 2025 SCC OnLine SC 1341 between Ashutosh Vs. State of Uttar Pradesh and another, wherein it is held as under:- ‘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 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. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402: 2016) 1 SCC (Cri) 510], it was held thus: (SCC pp. 404g-405a) "... Certainly, recall could be permitted if essential She 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 - 16 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined." 3. (2019) 14 SC 328 between Swapankumar Chatterjee Vs. Central Bureau of Investigation, wherein it is held as under:- 10. The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re- examine any such person if his evidence appears to be essential to the just decision of the case. 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 vide power under this Section to even recall witnesses for reexamination 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 is not satisfactory, the summoning of the witness at 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. - 17 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 14. The main allegation is against the accused No. 1 that he being the Head of the Mutt used to call the victim to his private room and he committed sexual assault and sexual intercourse on the victim. Entire case realise on the evidence of victim. Evidence of PW-14 is that he knows about the act committed by the accused No.1 through the victim and then he took them to Odanadi Seva Sumsthe for counseling. PW-14 has every opportunity during his evidence in chief examination and also at the time of cross-examination to depose that accused No.1 had given appreciation letters to him. But during his evidence he did not state anything with regard to the appreciation letter issued by the accused No.1 in his favour. In this case, prosecution has already examined 54 witnesses and this court has already recorded the statement of the accused under Section 313 of Cr.P.C. Moreover, Hon'ble Apex Court has given direction to dispose this matter within the period of one year. The period has also completed and this court has sent letter to the Hon'ble Apex Court requesting 3 months time for disposing this matter. At this stage, prosecution has filed this application for recall of PW-14 for production of document. The document sought to be summoned is no way relevant to prove the charges levelled against the accused. The summoning of the witness at belated stage would cause great prejudice to the accused. To allow the application at this stage would certainly amount to filing in the lacuna. Hence, this court is of the view that prosecution has not made out any sufficient ground to recall PW-14 for production of document. Hence, I answer Point No.1 in the Negative. Point No.2: 15. For the forgoing reasons and discussions, I proceed to pass the following: ORDER Application filed under Section 311 read with Section 91 of Cr.P.C by the prosecution is hereby dismissed.” - 18 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 10. The issue now would be, whether the order of the concerned Court which rejects the application filed under Section 311 r/w Section 91 of the Cr.P.C. suffers from want of tenability? 11. As observed hereinabove, the 2 documents that the prosecution wanted to place before the Court were concerning P.W.14, the prosecution witness. They were encomiums given to P.W.14 by the accused No.1 17 years ago. Of what use the said documents would be is ununderstandable, as the learned senior counsel for the petitioners seeks to take this Court through the deposition of P.W.14 to contend that the production of documents would become imperative. The evidence of P.W.14 is as follows: “……WಾXಯು ಸದ ಪಕರಣದ;@ ,$ೋA[ ಎಂದು ಆ$ೇಶ?ಾ4$ೆ ಎಂದು ]ೇಳ:ಾIೆ. WಾX ಸದ ಪಕರಣದ $ೋEಾೋಪ^ಾ ಪD_ ೋ- ಗುರು`Hದು% ಅದನು2 ,--28 ಎಂದು ಗುರು`ಸ5ಾ+ತು. 2007 ರ;@ ಾನು ಾ.ೕಾ/ ೊಟು_ ಮುರು ಮಠಂದ ]ೊರ&ೆ ಬಂರುೆIೕೆ. Oೆ.ಎಂ.ಎa.H ಾ=bಾೕಶರ ಮುಂ$ೆ ಾನು ]ೇೆ ,ೕ-ದು%, ಸದ ]ೇೆಯ;@ 17.11.2007 ರಂದು ನನ2ನು2 bಾವ"$ೇ ಾರಣ ಇಲ@$ೇ ಮಠಂದ ]ೊರ&ೆ ]ಾcದ%ರು ಎಂದು ]ೇ$ೆ%ೕೆ ಎಂದೆ WಾXಯು ಈಗ ೆನSಲ@ ಎಂದು ]ೇಳ:ಾIೆ, WಾX&ೆ ಸದ ]ೇೆಯ ಪ` ೋHದು% ಅದರ;@ ಬೆರುವ"ದು ಸ ಇರುತI$ೆ ಎಂದು ]ೇಳ:ಾIೆ. : 05.12.1995 ರಂದು 1 ೇ ಆೋSಯು ಮುರು ಮಠದ ಆಡತವನು2 ೋ-ೊಳdಲು ೊಂ$ಾ+ತ ..S.ಎ. ಅನು2 ಬೆದುೊD_ದು% ಈಗ ೋಡು`Iರುವ ಸದ $ಾಖ5ೆ ಸದ ೊಂ$ಾ+ತ ..S.ಎ Oೆಾfg ನಕಲು ಎಂದೆ ಸ. WಾX ಮುಂದುವೆದು 8 ಜನೆh ..S.ಎ ಬೆದುೊD_ದ%ರು ಎಂದು ]ೇಳ:ಾIೆ . ಃ - 19 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 15.12.2007 ರ;@ 1 ೇ ಆೋS ಸದ ..S.ಎ ಅನು2 8 ಜನಗಳ Rರುದj ರದು% ಪ-HರುಾIೆ ಎಂದೆ ಸ, ಈಗ ೋಡು`Iರುವ $ಾಖ5ೆ ಸದ $ಾಖ5ೆಯ.ಾfg ನಕಲು ಎಂದೆ ಸ .” The application is filed under Section 311 r/w 91 of the Cr.P.C. Section 311 of the Cr.P.C. 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.” Section 311 of the Cr.P.C. permits recall of the witnesses in a proceeding at any stage, if it would lead to discovery of truth qua the allegations against the accused or the defence of the accused. In the case at hand, the prosecution witness No.14 is neither victim nor the informant nor the accused. He is a prosecution witness. In such circumstances, whether an application of this kind that is filed at the stage of trial must be permitted or otherwise is considered by the Apex Court in the cases of: (i) SATBIR SINGH V. STATE OF HARYANA reported in 2023 SCC OnLine SC 1086, (ii) MANJU DEVI V. STATE OF RAJASTHAN reported in 2019 (6) SCC 203 and - 20 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 (iii) SWAPAN KUMAR CHATTERJEE V. CENTRAL BUREAU OF INVESTIGATION reported in (2019) 14 SCC 328. 12. This Court would not delve deep into the matter except quoting the said judgments, since all the above judgments relied on by the learned senior counsel for the petitioner and the respondents bear consideration by the Apex Court, in its latest judgment, in the case of SOVARAN SINGH PRAJAPATI V. STATE OF UTTAR PRADESH1, wherein the Apex Court has laid down postulates for the Courts to consider the application filed under Section 311 of the Cr.P.C. The Apex Court holds as follows: “…. …. …. 30. …. …. 30. On Section 311 and the rejection of the application, we may refer to the observations of this Court in the Zahira Habibullah Sheikh (5) v. State of Gujarat37. It was said: “26… 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 1 2025 SCC OnLine SC 351 - 21 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and reexamine 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 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. 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 - 22 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 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. 28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation : it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court… 29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross- examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra [(1967) 3 SCR 415 : AIR 1968 SC 178 : 1968 Cri LJ 231].” (Emphasis supplied) [See also : Jamatraj Kewalji Govani v. State of Maharashtra38; Rajendra Prasad v. Narcotic Cell39; Vijay Kumar v. State of U.P.40; Natasha Singh v. CBI41; Rajaram Prasad Yadav v. State of Bihar42; State v. N. Seenivasagan43; and Satbir Singh v. State of Haryana44] - 23 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 30.1. A perusal and consideration of the aforesaid decisions reveal the following principles as governing the application of Section 311 Cr. P.C.: (a) The Section is divided into two parts, the first being directory with the use of the word ‘may’ and the latter being mandatory with the use of the word ‘shall’. (b) The power of the Court is couched in the widest terms possible with no express limitation thereon. (c) The exercise of such power is not only the prerogative but also the duty of the Court, in connection with a witness who may be considered absolutely necessary, in the interest of justice. (d) This power is to be used both for the benefit of the prosecution and the defence. To summon a witness because it serves the case of one of the parties and not the other, would be improper. (e) This power can be exercised at any stage of proceedings, i.e. enquiry, trial or any other. (f) Power is to be exercised judiciously since wider the power, greater the requirement of the application of a judicial mind. (g) If a witness so-called under this power, gives evidence against the complainant, the latter should be given an opportunity to cross-examination. This power arises not under Section 311 but under the Indian Evidence Act, 1872. (h) A witness cannot be recalled by the use of this power to simply fill up a lacuna in the case of the prosecution.” (Emphasis supplied) - 24 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 The Apex Court while observes that, yes it is the right of the accused or the prosecution to file necessary application to drive home the truth, but holds that if it is not necessary for a decision making in the said proceeding, such application, for the asking, should not be permitted. 13. In the case at hand, driving home whatever is to be produced in those documents would not advance the case of the victim, nor the case of the prosecution nor the defence of the accused. The application for the asking is filed which has been rightly rejected by the concerned Court by the aforesaid order. I do not find any error in the order that is passed, for this Court to direct redoing of the exercise of examination-in- chief or cross-examination of P.W.14, as the case would be, as after the examination of P.W.14 on 07-12-2024, 40 witnesses have already been examined and totally 54 witnesses have already been examined in the case at hand. Therefore, there is no warrant of interference of the order passed by the concerned Court. - 25 - HC-KAR NC: 2025:KHC:35744 CRL.P No. 11107 of 2025 C/W CRL.P No. 11117 of 2025 In view of the above, petitions lacking in merit, stand rejected. Interim order, if any operating shall stand dissolved. Sd/- (M.NAGAPRASANNA) JUDGE BKP List No.: 1 Sl No.: 18