$~18 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010344152026 + CRL.M.C. 5475/2026 & CRL.M.A. 22853/2026 SH. DHARMENDER DHINGRA .....Petitioner Through: Mr. Sandeep Kumar, Adv. versus THE STATE & ANR. .....Respondents Through: Mr. Shoaib Haider, APP for the State. Dr. Anurag Kumar Agarwal, Mr. Umesh Mishra and Mr. Ram Gupta, Advs. for R-2. SI Anuj, PS: Timarpur. CORAM: HON’BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV O R D E R % 06.08.2026 1. This petitioner, by way of the present petition seeks to challenge the order dated 10.02.2026 passed by JMFC-02 Central District, Tiz Hazari Court(‘Impugned Order’), whereby, the petitioner’s application under Section 311 of the Code of Criminal Procedure, 1908 (‘Cr.P.C.’) came to be rejected. 2. The law with regard to exercise of power under Section 311 Cr.P.C. is well settled. Such power is required to be exercised only when the evidence of a witness sought to be summoned or recalled appears to be essential for the just decision of the case. The provision cannot be invoked as a matter of right or as a means to fill up the lacuna left in the evidence of a party. The This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/08/2026 at 10:59:19 Court is required to satisfy itself that the proposed evidence is necessary for arriving at a just and proper conclusion in the matter. 3. In the present case, this Court has considered the facts and circumstances of the case in the light of the aforesaid settled legal position. 4. It is an admitted position that the purported CD was produced by the petitioner himself. The Investigating Officer (‘IO’) was examined as a witness on 01.11.2023. Thus, the petitioner had ample opportunity to put the aforesaid CD to the IO and to conduct the necessary cross-examination with regard to the contents, preparation, production and relevance of the said CD. However, no such exercise was undertaken at the relevant stage. 5. It is only subsequently, when an objection with regard to the admissibility of the said CD was raised by learned counsel appearing for the complainant, that the petitioner chose to invoke the provisions of Section 311 Cr.P.C. The circumstances, therefore, indicate that the application has been moved at a belated stage with a view to overcome the deficiency which had occurred in the evidence of the petitioner. The power under Section 311 Cr.P.C. cannot be permitted to be utilized for filling up such lacuna. 6. The submission of learned counsel for the petitioner that, at the time of recording of evidence, the petitioner was informed that the said CD would be considered at the final stage, has also been considered by the Trial Court. 7. The Trial Court, after examining the examination-in-chief and cross- examination of the Investigating Officer, has categorically recorded that there is nothing on record to demonstrate that the said video/CD was ever put to the IO or that the petitioner was prevented by the Court from putting the same to the witness. In such circumstances, the said submission cannot be accepted at this stage. The relevant paragraph is extracted as under:- This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/08/2026 at 10:59:19 “I have gone through the examination in chief and the cross-examination of the witness. Nowhere in the record it is reflected that the video was put to the witness or that same was not allowed to be put to the witness by the court…...” 8. The reliance placed by learned counsel for the petitioner upon the judgment of the Supreme Court in Varsha Garg v. State of Madhya Pradesh and Others,1 is also of no assistance to the petitioner. The said judgment reiterates the principle that the paramount consideration while exercising jurisdiction under Section 311 Cr.P.C. is the necessity of the evidence for arriving at a just decision. However, the factual matrix of the said case is materially different from the facts of the present case. In the present matter, the petitioner himself had produced the CD and had an opportunity to confront the IO with the same when his evidence was recorded. Having failed to do so, the petitioner cannot seek to reopen the evidence merely because an objection regarding admissibility has subsequently been raised. 9. The jurisdiction under Section 311 Cr.P.C. is undoubtedly wide, but the same has to be exercised judiciously. The essentiality of the evidence sought to be brought on record is the determinative factor. In the facts of the present case, no such essentiality has been demonstrated. Rather, the application appears to be an attempt to cure a deficiency in the evidence after the petitioner became conscious of the objection regarding admissibility of the CD. 10. The Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar,2 laid down the principles governing the jurisdiction exercised under 1 MANU/SC/9073/2022 2 (2013) 14 SCC 461. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/08/2026 at 10:59:19 Section 311 of the Cr.P.C. The relevant paragraph is extracted as under:- “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 17.1. 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? 17.2. 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. 17.3. 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. 17.4. 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. 17.5. 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.” (Emphasis Supplied) 11. In the said impugned order, the Trial Court also noted that the matter is pending since 2008, the IO had already been examined in 2023, and the present application has been filed only to fill the lacuna in the petitioner’s case. The relevant finding is extracted as under:- “…..The witness has been examined long back in the year 2023 and the matter is pending since the year 2008. At this belated stage, the application cannot be allowed to fill the lacuna in the case of defence. Accordingly, the application stands dismissed and disposed of.” 12. In view of the aforesaid discussion and having regard to the overall facts and circumstances of the case, this Court finds no infirmity in the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/08/2026 at 10:59:19 impugned order passed by the Trial Court rejecting the application filed by the petitioner under Section 311 Cr.P.C. Consequently, the Court is not inclined to interfere into the impugned order. 13. The petition is, accordingly, dismissed. 14. It is, however, observed that whether the other material, as also the CD without being put to the IO, has any admissibility in evidence, can be examined by the Trial Court. PURUSHAINDRA KUMAR KAURAV, J AUGUST 6, 2026/p/SA This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/08/2026 at 10:59:19