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CRL.P No. 6288 of 2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU R

DATED THIS THE 20TH DAY OF JULY, 2022

BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 6288 OF 2022

BETWEEN:

SRI. PERIYASWAMY M.,

AGED ABOUT 67 YEARS
S/O MOTTABHOVI,
R/A NO.2187, 6TH CROSS
NEAR CHOTRI, WEAVRS COLONY
GOTTIGERE POST,
BENGALURU – 560 083.

…PETITIONER

(BY SRI SATHISH C., ADVOCATE)

AND:

STATE OF KARNATAKA BY
KONANKUNTE POLICE STATION
Digitally signed by
PADMAVATHI B K BENGALURU – 560 062
Location: HIGH
COURT OF (REPRESENTED BY LEARNED STATE PUBLIC
KARNATAKA
PROSECUTOR)

…RESPONDENT

(BY SMT.K.P.YASHODHA, HCGP.)

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CRL.P No. 6288 of 2022

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C., PRAYING TO A. SET ASIDE THE ORDER DATED
10.06.2022 PASSED BY THE ADDL. CIVIL AND SESSIONS
JUDGE, FTSC-III AT BANGALORE IN SPL.C.C.NO.233/2020.

B. ALLOW THE PETITIONER/ACCUSED TO ADDUCE

DEFENCE EVIDENCE BY REOPENING THE STAGE OF DEFENCE
EVIDENCE IN SPL.C.C.NO.233/2020 ON THE FILE OF THE
ADDL. CIVIL AND SESSIONS JUDGE, FTSC-III AT BANGALORE.

THIS CRIMINAL PETITION COMING ON FOR ADMISSION

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner is before this Court calling in question an

order dated 10.06.2022 passed in Spl.C.C.No.233/2020,

whereby the Additional Civil and Sessions Judge FTSC - III,

Bengaluru, has declined the plea of the petitioner to adduce the

defence witnesses from the stage of defence evidence.

2. Heard Sri Sathish C., learned counsel for the petitioner

and Smt. K.P.Yashodha, learned High Court Government

Pleader for the respondent.

3. Brief facts leading to the filing of the petition as borne

out from the pleadings are as follows:

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CRL.P No. 6288 of 2022

A complaint comes to be registered against the petitioner

which becomes a crime in crime No.48/2020 on 11.02.2020 for

offences punishable under Sections 8 and 12 of the Protection

of Children from Sexual Offences Act 2012 (for short 'the

POCSO Act') and Section 354 of the IPC. The police after

investigation have filed a charge sheet including the offence

punishable under Section 376 of the IPC read with Sections

5(n), 6, 8 and 12 of the POCSO Act. The trial is set in motion

and is in progress. On completion of the evidence of the

prosecution by examination of PWs.1 to 9 and cross-

examination by the accused, on 24.05.2022, the statement of

the accused under Section 313 of the Cr.P.C. is also recorded.

4. The issue in the case at hand is not with regard to the

merit of the matter or examination of witnesses by the

prosecution. The issue is with regard to the accused filing an

application before the concerned Court seeking adducing of

defence evidence as at the relevant point in time, when he was

to render the defence evidence, he was in judicial custody and

could not instruct the counsel to lead the defence evidence. It

is in that light, an application is filed before the concerned

Court. The concerned Court by its order dated 10.06.2022,

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CRL.P No. 6288 of 2022

declines to accede the request of the accused petitioner for

leading of defence evidence, on the ground that the burden was

on the prosecution to prove the guilt of the accused beyond all

reasonable doubt and permit the accused to examine five

witnesses, does not arise. Challenging this order of the

Sessions Judge, the petitioner has knocked the doors of this

Court in the subject petition.

5. Learned counsel for the petitioner would contend in

vehemence that the petitioner has right to lead defence

evidence as he is facing charges which can land him in

imprisonment for more than three years. He was not able to

instruct the counsel for leading defence evidence as he was in

custody upto 21.06.2022. Being in custody, he files an

application under Section 311 of the Cr.P.C. He would submit

that the right to lead defence evidence cannot be taken out on

the ground that the burden is on the prosecution.

6. On the other hand, learned High Court Government

Pleader would seek to defend the order on the ground that the

intention of the petitioner is only to drag the proceedings since

the issue concerns the afore-quoted offences punishable under

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CRL.P No. 6288 of 2022

the POCSO Act. The trial has to be concluded without any loss

of time and seeks dismissal of the petition.

7. I have given my anxious consideration to the

submissions made by the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent and perused the material on

record.

8. The afore-narrated facts are not in dispute. Before

embarking upon the merits of the case, I deem it appropriate

to notice the law laid down by the Apex Court interpreting

Section 311 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
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CRL.P No. 6288 of 2022

if his evidence appears to it to be essential to

the just decision of the case."

(Emphasis supplied)

The Apex Court in plethora of cases has interpreted the

importance of adducing evidence and the power under Section

311 of the Cr.P.C. The Apex Court in the case of NATASHA

SINGH VS. CBI1, has held as follows:

"15. The scope and object of the provision is

to enable the court to determine the truth and to
render a just decision after discovering all relevant
facts and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or
arbitrarily, as any improper or capricious exercise
of such power may lead to undesirable results. An
application under Section 311 CrPC must not be
allowed only to fill up a lacuna in the case of the
prosecution, or of 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 opposite party. Further,
the additional evidence must not be received as a
disguise for retrial, or to change the nature of the

1
(2013) 5 SCC 741
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case against either of the parties. Such a power

must be exercised, provided that the evidence that
is likely to be tendered by a witness, is germane to
the issue involved. An opportunity of rebuttal
however, must be given to the other party. The
power conferred under Section 311 CrPC must
therefore, be invoked by the court only in
order to meet the ends of justice, for strong
and valid reasons, and the same must be
exercised with great caution and
circumspection. The very use of words such as
“any court”, “at any stage”, or “or any
enquiry, trial or other proceedings”, “any
person” and “any such person” clearly spells
out that the provisions of this section have
been expressed in the widest possible terms,
and do not limit the discretion of the court in
any way. There is thus no escape if the fresh
evidence to be obtained is essential to the
just decision of the case. The determinative
factor should therefore be, whether the
summoning/recalling of the said witness is in
fact, essential to the just decision of the case.

16. Fair trial is the main object of

criminal procedure, and it is the duty of the
court to ensure that such fairness is not
hampered or threatened in any manner. Fair
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CRL.P No. 6288 of 2022

trial entails the interests of the accused, the

victim and of the society, and therefore, fair
trial includes the grant of fair and proper
opportunities to the person concerned, and
the same must be ensured as this is a
constitutional, as well as a human right. Thus,
under no circumstances can a person's right to fair
trial be jeopardised. Adducing evidence in support
of the defence is a valuable right. Denial of such
right would amount to the denial of a fair trial.
Thus, it is essential that the rules of procedure that
have been designed to ensure justice are
scrupulously followed, and the court must be
zealous in ensuring that there is no breach of the
same. [Vide Talab Haji Hussain v. Madhukar
Purshottam Mondkar [AIR 1958 SC 376 : 1958 Cri
LJ 701] , Zahira Habibulla H. Sheikh v. State of
Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999 :
AIR 2004 SC 3114] , Zahira Habibullah Sheikh (5)
v. State of Gujarat [(2006) 3 SCC 374 : (2006) 2
SCC (Cri) 8 : AIR 2006 SC 1367] , Kalyani Baskar
v. M.S. Sampoornam [(2007) 2 SCC 258 : (2007) 1
SCC (Cri) 577] , Vijay Kumar v. State of U.P.
[(2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 :
(2012) 1 SCC (L&S) 240] and Sudevanand v. State
[(2012) 3 SCC 387 : (2012) 2 SCC (Cri) 179] .]"

(Emphasis supplied)
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CRL.P No. 6288 of 2022

A little later, the Apex Court in the case of RAJARAM PRASAD

YADAV VS. STATE OF BIHAR2, wherein it is held as follows:

"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.
2
(2013) 14 SCC 461
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CRL.P No. 6288 of 2022

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.
17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it
was in every respect essential to examine
such a witness or to recall him for further
examination in order to arrive at a just
decision of the case.
17.8. The object of Section 311 CrPC
simultaneously imposes a duty on the court to
determine the truth and to render a just
decision.
17.9. The court arrives at the conclusion that
additional evidence is necessary, not because it
would be impossible to pronounce the judgment
without it, but because there would be a failure of
justice without such evidence being considered.
17.10. Exigency of the situation, fair play
and good sense should be the safeguard,
while exercising the discretion. The court
should bear in mind that no party in a trial can
be foreclosed from correcting errors and that
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CRL.P No. 6288 of 2022

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.
17.11. The court should be conscious of the
position that after all the trial is basically for the
prisoners and the court should afford an
opportunity to them in the fairest manner possible.
In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity
rather than protecting the prosecution against
possible prejudice at the cost of the accused. The
court should bear in mind that improper or
capricious exercise of such a discretionary power,
may lead to undesirable results.
17.12. The additional evidence must not be
received as a disguise or to change the nature of
the case against any of the party.
17.13. The power must be exercised keeping
in mind that the evidence that is likely to be
tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is
given to the other party.
17.14. The power under Section 311
CrPC must therefore, be invoked by the court
only in order to meet the ends of justice for
strong and valid reasons and the same must
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CRL.P No. 6288 of 2022

be exercised with care, caution and

circumspection. The court should bear in mind
that fair trial entails the interest of the
accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned, must
be ensured being a constitutional goal, as well
as a human right."

(Emphasis supplied)

The Apex Court in the case of MANJU DEVI VS. STATE OF

RAJASTHAN3, has held as follows:

"10. It needs hardly any emphasis that

the discretionary powers like those under
Section 311 CrPC are essentially intended to
ensure that every necessary and appropriate
measure is taken by the Court to keep the
record straight and to clear any ambiguity
insofar as the evidence is concerned as also to
ensure that no prejudice is caused to anyone.
The principles underlying Section 311 CrPC and
amplitude of the powers of the court thereunder
have been explained by this Court in several
decisions [ Vide Mohanlal Shamji Soni v. Union of
India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri)
595; Zahira Habibulla H. Sheikh v. State of
3
(2019) 6 SCC 203
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CRL.P No. 6288 of 2022

Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999;

Mina Lalita Baruwa v. State of Orissa, (2013) 16
SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad
Yadav v. State of Bihar, (2013) 14 SCC 461 :
(2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI,
(2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] . In
Natasha Singh v. CBI [Natasha Singh v. CBI,
(2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] ,
though the application for examination of witnesses
was filed by the accused but, on the principles
relating to the exercise of powers under Section
311, this Court observed, inter alia, as under: (SCC
pp. 746 & 748-49, paras 8 &15)

“8. Section 311 CrPC empowers the

court to summon a material witness,
or to examine a person present at “any
stage” of “any enquiry”, or “trial”, or
“any other proceedings” under CrPC,
or to summon any person as a witness,
or to recall and re-examine any person
who has already been examined if his
evidence appears to it, to be essential
to the arrival of a just decision of the
case. Undoubtedly, CrPC has conferred
a very wide discretionary power upon
the court in this respect, but such a
discretion is to be exercised
judiciously and not arbitrarily. The
power of the court in this context is
very wide, and in exercise of the same,
it may summon any person as a
witness at any stage of the trial, or
other proceedings. The court is
competent to exercise such power even
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CRL.P No. 6288 of 2022

suo motu if no such application has been

filed by either of the parties. However, the
court must satisfy itself, that it was in fact
essential to examine such a witness, or to
recall him for further examination in order
to arrive at a just decision of the case.

***
15. The scope and object of the
provision is to enable the court to
determine the truth and to render a
just decision after discovering all
relevant facts and obtaining proper
proof of such facts, to arrive at a just
decision of the case. Power must be
exercised judiciously and not
capriciously or arbitrarily, as any
improper or capricious exercise of
such power may lead to undesirable
results. An application under Section
311 CrPC must not be allowed only to
fill up a lacuna in the case of the
prosecution, or of 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 opposite party.
Further, the additional evidence must not
be received as a disguise for retrial, or to
change the nature of the case against
either of the parties. Such a power must be
exercised, provided that the evidence that
is likely to be tendered by a witness, is
germane to the issue involved. An
opportunity of rebuttal however, must be
given to the other party. The power
conferred under Section 311 CrPC must
therefore, be invoked by the court only in
order to meet the ends of justice, for
strong and valid reasons, and the same
must be exercised with great caution and
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CRL.P No. 6288 of 2022

circumspection. The very use of words such

as “any court”, “at any stage”, or “or any
enquiry, trial or other proceedings”, “any
person” and “any such person” clearly
spells out that the provisions of this section
have been expressed in the widest possible
terms, and do not limit the discretion of the
court in any way. There is thus no escape if
the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of
the said witness is in fact, essential to the
just decision of the case.”

(Emphasis in original)

15. In the given set of facts and circumstances,

we are clearly of the view that the trial court
disposed of the application under Section 311 CrPC
on entirely irrelevant considerations and the High
Court also failed to exercise its jurisdiction under
Section 482 CrPC while overlooking and ignoring
the material and relevant aspects of the case. In
our view, the said application under Section 311
CrPC deserves to be allowed."

(Emphasis supplied)

Following the judgment of MANJU DEVI (supra), the Apex

Court in the case of STATE REP. BY THE DEPUTY

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CRL.P No. 6288 of 2022

SUPERINTENDENT OF POLICE VS. TR. N.

SEENIVASAGAN4, has held as follows:

"13. In our view, having due regard to the

nature and ambit of Section 311 of the CrPC, it was
appropriate and proper that the applications filed
by the prosecution ought to have been allowed.
Section 311 provides that any Court may, at any
stage of any inquiry, trial or other proceedings
under the CrPC, 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 true
test, therefore, is whether it appears to the
Court that the evidence of such person who is
sought to be recalled is essential to the just
decision of the case.

14. In Manju Devi v. State of Rajasthan4,

a two-Judge bench of this Court noted that an
application under Section 311 could not be
rejected on the sole ground that the case had
been pending for an inordinate amount of
time (ten years there). Rather, it noted that
4
2021 SCC ONLINE SC 212
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CRL.P No. 6288 of 2022

“the length/duration of a case cannot displace

the basic requirement of ensuring the just
decision after taking all the necessary and
material evidence on record. In other words,
the age of a case, by itself, cannot be decisive
of the matter when a prayer is made for
examination of a material witness”. Speaking
for the Court, Justice Dinesh Maheshwari
expounded on the principles underlying Section 311
in the following terms:

“10. It needs hardly any emphasis that

the discretionary powers like those under
Section 311 CrPC are essentially intended to
ensure that every necessary and appropriate
measure is taken by the Court to keep the
record straight and to clear any ambiguity
insofar as the evidence is concerned as also
to ensure that no prejudice is caused to
anyone. The principles underlying Section 311
CrPC and amplitude of the powers of the
court thereunder have been explained by this
Court in several decisions [Vide Mohanlal
Shamji Soni v. Union of India, 1991 Supp (1)
SCC 271 : 1991 SCC (Cri) 595; Zahira
Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158 : 2004 SCC (Cri) 999;
Mina Lalita Baruwa v. State of Orissa, (2013)
16 SCC 173 : (2014) 6 SCC (Cri) 218;
Rajaram Prasad Yadav v. State of Bihar,
(2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256
and Natasha Singh v. CBI, (2013) 5 SCC 741
: (2013) 4 SCC (Cri) 828]. In Natasha Singh
v. CBI [Natasha Singh v. CBI, (2013) 5 SCC
741 : (2013) 4 SCC (Cri) 828], though the
application for examination of witnesses was
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CRL.P No. 6288 of 2022

filed by the accused but, on the principles

relating to the exercise of powers under
Section 311, this Court observed, inter alia,
as under : (SCC pp. 746 & 748-49, paras 8 &
15)

“8. Section 311 CrPC empowers

the court to summon a material
witness, or to examine a person
present at “any stage” of “any
enquiry”, or “trial”, or “any other
proceedings” under CrPC, or to
summon any person as a witness, or
to recall and re-examine any person
who has already been examined if his
evidence appears to it, to be essential
to the arrival of a just decision of the
case. Undoubtedly, CrPC has
conferred a very wide discretionary
power upon the court in this respect,
but such a discretion is to be
exercised judiciously and not
arbitrarily. The power of the court in
this context is very wide, and in
exercise of the same, it may summon
any person as a witness at any stage
of the trial, or other proceedings. The
court is competent to exercise such
power even suo motu if no such
application has been filed by either of
the parties. However, the court must
satisfy itself, that it was in fact
essential to examine such a witness,
or to recall him for further
examination in order to arrive at a
just decision of the case.

***
15. The scope and object of the
provision is to enable the court to
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CRL.P No. 6288 of 2022

determine the truth and to render a

just decision after discovering all
relevant facts and obtaining proper
proof of such facts, to arrive at a just
decision of the case. Power must be
exercised judiciously and not
capriciously or arbitrarily, as any
improper or capricious exercise of
such power may lead to undesirable
results. An application under Section
311 CrPC must not be allowed only to
fill up a lacuna in the case of the
prosecution, or of 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 opposite party.
Further, the additional evidence must
not be received as a disguise for
retrial, or to change the nature of the
case against either of the parties.
Such a power must be exercised,
provided that the evidence that is
likely to be tendered by a witness, is
germane to the issue involved. An
opportunity of rebuttal however, must
be given to the other party. The
power conferred under Section
311 CrPC must therefore, be
invoked by the court only in order
to meet the ends of justice, for
strong and valid reasons, and the
same must be exercised with
great caution and circumspection.
The very use of words such as
“any court”, “at any stage”, or “or
any enquiry, trial or other
proceedings”, “any person” and
“any such person” clearly spells
out that the provisions of this
section have been expressed in
the widest possible terms, and do
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CRL.P No. 6288 of 2022

not limit the discretion of the

court in any way. There is thus no
escape if the fresh evidence to be
obtained is essential to the just
decision of the case. The
determinative factor should
therefore be, whether the
summoning/recalling of the said
witness is in fact, essential to the
just decision of the case.”

(Emphasis in original)”

Considering all the judgments, the Apex Court in the case of

V.N.PATIL VS. K. NIRANJAN KUMAR5, wherein it has held as

follows:

"13. The scope of Section 311 CrPC which is

relevant for the present purpose is reproduced
hereunder:

“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.”

5
(2021) 3 SCC 661
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CRL.P No. 6288 of 2022

14. The object underlying Section 311 CrPC 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
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
the discretionary power conferred under Section
311 CrPC has to be exercised judiciously, as it is
always said “wider the power, greater is the
necessity of caution while exercise of judicious
discretion”.

15. The principles related to the exercise of

the power under Section 311 CrPC have been well
settled by this Court in Vijay Kumar v. State of U.P.
[Vijay Kumar v. State of U.P., (2011) 8 SCC 136 :
(2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240]
: (SCC p. 141, para 17)

“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 the Code
and the principles of criminal law. The
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CRL.P No. 6288 of 2022

discretionary power conferred under

Section 311 has to be exercised judicially
for reasons stated by the court and not
arbitrarily or capriciously. Before directing
the learned Special Judge to examine Smt
Ruchi Saxena as a court witness, the High
Court did not examine the reasons
assigned by the learned Special Judge as to
why it was not necessary to examine her
as a court witness and has given the
impugned direction without assigning any
reason.”

16. This principle has been further reiterated

in Mannan Shaikh v. State of W.B. [Mannan Shaikh
v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC
(Cri) 547] and thereafter in Ratanlal v. Prahlad Jat
[Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017)
3 SCC (Cri) 729] and Swapan Kumar Chatterjee v.
CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14
SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant
paragraphs of Swapan Kumar Chatterjee [Swapan
Kumar Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839] are as under: (Swapan
Kumar Chatterjee case [Swapan Kumar Chatterjee
v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri)
839] , SCC p. 331, paras 10-11)

“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 or other
proceedings under the Code to act in one
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CRL.P No. 6288 of 2022

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 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.”

17. The aim of every court is to discover

the truth. Section 311 CrPC is one of many
such provisions which strengthen the arms of
a court in its effort to unearth the truth by
procedure sanctioned by law. At the same
time, the discretionary power vested under
Section 311 CrPC has to be exercised
judiciously for strong and valid reasons and
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with caution and circumspection to meet the

ends of justice."
(Emphasis supplied)

On a coalesce of the afore-quoted judgments of the Apex Court

and considering the purport or the spirit of Section 311 of the

Cr.P.C., what would unmistakably emerge is, the power of the

Court under Section 311 of the Cr.P.C. is wide but to be used

with caution and circumspection, as the word deployed in

Section 311 of the Cr.P.C. is at any stage of any inquiry, trial or

any other proceedings under the Cr.P.C. Fair trial is the soul of

criminal procedure and it is the duty of the Courts to ensure

fairness and it is not hampered or threatened at any stage of

the proceedings.

9. It is trite that fair trial includes affording of fair

opportunity to the person concerned albeit the prosecution or

the accused as the aim and object of every Court is to discover

the truth. Section 311 of the Cr.P.C. is one of many such

provision, which strengths the arms of the Court to unearth the

truth by procedure sanctioned by the law. This is the soul of

the provision.
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10. On the bedrock of the afore-quoted principles as

enunciated by the Apex Court while interpreting Section 311 of

the Cr.P.C., the facts in the case at hand will have to be

noticed. The petitioner is charged under Sections 5(n), 6, 8

and 12 of the POCSO Act. The petitioner files an application

seeking to adduce defence evidence after conclusion of his

recording of statement under Section 313 of the Cr.P.C., by

seeking reopening of the case from the stage of adducing such

defence evidence. This is rejected by the concerned Court by a

perfunctory order. The order of the concerned Court rejecting

the application reads as follows:

"6. Admittedly the complainant police have

filed charge sheet against the accused for the
offences punishable U/Sec.354, 376 of IPC and
Sec.4, 6, 8 and 12 of POCSO Act. The order sheet
discloses that prosecution side evidence already
been closed and even the accused was examined
U/Sec.313 of Cr.P.C. wherein the accused denied
the entire incriminating evidence available against
him deposed by the witnesses. At this stage when
the case is set down for arguments on merits the
accused has come up with this application seeking
permission to examine the witnesses before this
court. In the application the accused has not
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stated how these witnesses are relevant to this

case and what they are going to depose before this
court with respect to which fact in issue.
Admittedly the accused in his application has not
disclosed the role of these witnesses in this case
and in the list furnished along with the application
except disclosing the name of the witnesses stated
that they are the neighbourers and relative of this
accused has not stated how they are relevant and
what they are going to depose before this court. It
is well settled principal of law that when the entire
burden is on the prosecution to prove the guilt of
the accused beyond all reasonable doubt, in such
being the case, permitting the accused examine the
5 witnesses from his side does not arise. The
accused has not made out any good valid goods to
allow the application by permitting him to examine
the witnesses before this court. There is no merits
in the application. Hence, I answered point No.1 in
the Negative and proceed to pass the following:

ORDER

The application filed by the accused

U/Sec.311 Cr.P.C. is here by dismissed."

Call on 17.06.2022."

The reason rendered for declining the application of the

petitioner seeking adducing defence evidence is on the ground

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that it is the burden of the prosecution to prove the case

beyond all reasonable doubt and therefore, examination of the

witnesses on the side of the defence does not arise. The

concerned Court perhaps has blissfully ignored that the

petitioner is facing charges under the provisions of the POCSO

Act. Sections 29 and 30 of the POCSO Act draws presumption

of guilt, unless the accused is proved innocent. The

presumption however does not take away the duty of the

prosecution to prove the foundational facts beyond all

reasonable doubt, it is a reverse burden cast upon the accused

under the provisions of the POCSO Act. In the teeth of the

allegations under the POCSO Act, the concerned Court could

not have rejected the application for adducing defence evidence

on the specious plea that the burden is on the prosecution to

prove the case beyond all reasonable doubt. Application under

Section 311 of the Cr.P.C. should be ordinarily permitted unless

the Court comes to conclude that it is a ruse to drag the

proceedings or permitting it, would become an abuse of the

process of the law. None of these traits exist in the case at

hand. The accused who is facing charges that are grave ought
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to be afforded opportunity to defend himself within the

parameters of law.

11. For the aforesaid reasons, the following:

ORDER

i. The Criminal Petition is allowed.

ii. The order dated 10.06.2022, passed in

Spl.C.C.No.233/2020, whereby the Additional Civil

and Sessions Judge FTSC - III, Bengaluru, stands

quashed.

I.A.No.1/2022 is disposed, as a consequence.

Sd/-
JUDGE

nvj