VARSHA GARG versus THE STATE OF MADHYA PRADESH & ORS.

[2022] 13 S.C.R. 150

[2022] 13 S.C.R.

VARSHA GARG

THE STATE OF MADHYA PRADESH & ORS.

(Criminal Appeal No. 1021 of 2022)

BAUGUST 08, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDA. S. BOPANNA, JJ.]

Code of Criminal Procedure, 1973 – ss. 91, 311 – Challengeto the dismissal of applications filed by the prosecution for theCproduction of the decoding registers and for summoning of thewitnesses of the cellular companies – Held: The decoding registersare relevant piece of evidence to establish the co-relationshipbetween the location of the accused and the cell phone tower –Summons to produce document or other thing u/s.91 can be issuedDwhere Court finds that production of the document or thing “isnecessary or desirable for the purpose of any investigation, trialor other proceeding” under CrPC – Power u/s.311 to summon awitness is conditioned by the requirement that the evidence of theperson who is sought to be summoned appears to the Court to beessential to the just decision of the case – In the instant case, theEnodal officers of the cellular companies were examined, they statedthat location of call made by the mobile number is shown by codesand location can be stated by decoding the same – Hence, decodingregister is relevant – It is crucial piece of evidence – Summoningof witness for the purpose of producing register was essential.

FAllowing the appeal, the Court

HELD: 1. In the present case, the application of theprosecution for the production of the decoding registers isrelatable to the provisions of Section 91 CrPC. The decodingregisters are sought to be produced through the representativesGof the cellular companies in whose custody or possession theyare found. The decoding registers are relevant piece of evidenceto establish the co-relationship between the location of theaccused and the cell phone tower. The reasons which weighedwith the High Court and the Trial Court in dismissing theHapplication are extraneous to the power which is conferred under

Section 91 on the one hand and Section 311 on the other. Thesummons to produce document or other thing under Section91 can be issued where the Court finds that the production of thedocument or thing is necessary or desirable for the purpose ofany investigation, trial or other proceeding under the CrPC. Asalready noted, the power under Section 311 to summon witnessis conditioned by the requirement that the evidence of the personwho is sought to be summoned appears to the Court to be essentialto the just decision of the case. [Para 35][166-C-D; 167-A-B]

2. The relevance of the decoding register emerges fromthe statement of PW-41. Hence, the effort of the prosecution toproduce the decoding register which is crucial and vital pieceof evidence ought not to have been obstructed. In terms of theprovisions of Section 311, the summoning of the witness for thepurpose of producing the decoding register was essential for thejust decision of the case. [Para 37][167-F]

3. Having dealt with the satisfaction of the requirements ofSection 311, we deal with the objection of the respondents thatthe application should not be allowed as it will lead to filling inthe lacunae of the prosecution‘s case. However, even the saidreason cannot be an absolute bar to allowing an application underSection 311. [Para 38][167-G-H]

4. The right of the accused to fair trial is constitutionallyprotected under Article 21. However, in Mina Lalita Baruwa, whilereiterating Rajendra Prasad, the Court observed that it is theduty of the criminal court to allow the prosecution to correct anerror in interest of justice. In the present case, the importanceof the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additionaldocuments required to be able to appreciate the existing evidencein form of the call details which are already on record but usecodes to signify the location of accused, crucial detail, whichcan be decoded only through the decoding registers, the right ofthe accused to fair trial is not prejudiced. The production of thedecoding registers fits into the requirement of being relevantmaterial which was not brought on record due to inadvertence.[Para 40][168-F; 169-C]

5. For the above reasons, this Court has come to theconclusion that the decision of the High Court which is impugnedin the appeal is unsustainable. The application filed by theprosecution for the production of the decoding registers and forthe summoning of the witnesses of the cellular companies forthat purpose is allowed. [Para 44][173-C, D-E]

Zahira Habibulla H. Sheikh v. State of Gujarat (2004)4 SCC 158 : [2004] 3 SCR 1050; Rajendra Prasad v.Narcotic Cell (1999) 6 SCC 110; Rameshwar Dayal v.State of U.P. (1978) 2 SCC 518 : [1978] 3 SCR 59;Mohanlal Shamji Soni v. Union of India (1991) 1 SuppSCC 271 : [1991] 1 SCR 712 - relied on.

Shiv Kumar v. Hukam Chand (1999) 7 SCC 467 : [1999]2 Suppl. SCR 81 and Dhariwal Industries Ltd. v. KishoreWadhwan (2016) 10 SCC 378 : [2016] 5 SCR 212 –distinguished.

Swapan Kumar Chatterjee v. Central Bureau ofInvestigation (2019) 14 SCC 328 : [2019] 3 SCR 713;Mina Lalita Baruwa v. State of Orissa (2013) 16 SCC173 : [2013] 16 SCR 788; J.K. International v. State(Govt. of NCT of Delhi) (2001) 3 SCC 462 : [2001] 2SCR 90; Manu Sharma v. State (NCT of Delhi) (2010)6 SCC 1 : [2010] 4 SCR 103; State of W.B. v. TulsidasMundhra (1963) 1 Suppl. SCR 1; Jamatraj KewaljiGovani v. State of Maharashtra (1967) 3 SCR 415;Masalti v. State of U.P. (1964) 8 SCR 133; RajeswarProsad Misra v. State of W.B. (1966) 1 SCR 178; R.B.Mithani v. State of Maharashtra (1971) 1 SCC 523;Zahira Habibullah Sheikh (5) v. State of Gujarat (2006)3 SCC 374 : [2006] 2 SCR 1081; Godrej Pacific Tech.Ltd. v. Computer Joint India Ltd. (2008) 11 SCC 108 :[2008] 11 SCR 571; Karnel Singh v. State of M.P. (1995)5 SCC 518 : [1995] 2 Suppl. SCR 629; Paras Yadav v.State of Bihar (1999) 2 SCC 126 : [1999] 1 SCR 55;Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 :[1998] 2 SCR 1097; Amar Singh v. Balwinder Singh(2003) 2 SCC 518 : [2003] 1 SCR 754 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1021 of 2022.

From the Judgment and Order dated 08.04.2022 of the High Courtof Madhya Pradesh at Indore in Misc. Criminal Case No. 57152 of2021.

With

MA No. 1144 of 2022 in SLP (Crl) No. 2239 of 2022.

Ramakrishnan Viraraghavan, Sr. Adv., K. Krishna Kumar,Preetam Shah, Ms. Shashi Kiran, Advs. for the Appellant.

S. K. Gangele, Sr. Adv., Shreeyash U. Lalit, Pashupathi NathRazdan, Mirza Kayesh Begg, Prakhar Srivastav, Ms. Ayushi Mittal,Ms. Priya Sharma, Prathvi Raj Chauhan, Ms. Ritu Gangele, ArupBanerjee, Ms. Bansuri Swaraj, Siddhesh Katwal, Ms. Manya Hasija,Vikram Dubey, Ms. Ana Upadhyay, Akash Singh, Nihaar Dharmadhikari,Nirnimesh Dube, Advs. for the Respondents.

ABy Courts Motion

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

1. Single Judge of the Indore Bench of the High Court of MadhyaBPradesh rejected, by judgment dated 8 April 2022, petition institutedby the appellant under Section 482 of the Code of Criminal Procedure1973[1] registered as Misc. Criminal Case No. 57152 of 2021.

2. The petition addressed challenge to the correctness of anorder dated 13 November 2021 of the Second Additional Sessions Judge,CDr. Ambedkar Nagar, District Indore rejecting an application under Section311 CrPC seeking to summon the nodal officers of certain cellular entitiesalong with the decoding register to trace the mobile location of accusedVikas, Mangilal and Suresh.

3. The appellant is the spouse of an advocate who was brutallymurdered outside his office at about 2330 hrs on 18 November 2015.DFollowing the homicide, First Information Report bearing CriminalComplaint No. 734 of 2015 was registered with Police Station[2] Mhow,District Indore on 19 November 2015 for an offence punishable underSection 302 read with Section 34 of the Indian Penal Code 1860[3]. Theinvestigation was initiated. The post mortem report indicated that theEhomicide was caused due to firearm injury. The second, third, fourth,fifth and sixth respondents (i.e., Vikas, Sawan, Mangilal, Suresh andRaju) were arrested during the course of the investigation.

4. charge-sheet was submitted after investigation on 15February 2016. supplementary charge-sheet was submitted on 20FNovember 2016. The case has been committed to the Court of the SecondAdditional Sessions Judge, Dr. Ambedkar Nagar, District Indore andwas registered as Sessions Trial 227 of 2016.

5. Among the enclosures to the supplementary charge-sheet werecertificates dated 11 January 2016 of the nodal officers of certain cellularGcompanies, namely:

(i) certificate dated 11 January 2016 of Airtel;

1 ‘‘CrPC’’

2 “P.S.”

H3 ‘‘IPC’’

(ii) certificate dated 18 January 2016 of Reliance;

(iii) certificate dated 30 March 2016 of Idea;

(iv) certificate dated 6 June 2016 of Vodafone.

Upon the commencement of the recording of evidence at thetrial, the nodal officers of Idea (PW33), Airtel (PW41), Reliance (PW43)and Vodafone (PW48) were examined on 17 November 2017, 7 May2018, 17 July 2018 and 31 October 2018. The Station House Officer[4],P.S. Mhow between February 2016 and April 2017, was examined bythe prosecution as PW47 on 31 October 2018. PW47 had filed thesupplementary charge-sheet and had prepared compact disc[5] withcall details of the co-accused. He also admitted that he had not filed acertificate as required under Section 65B of the Indian Evidence Act1872[6] in relation to the CD.6. The statements of accused – Suresh (the fifth respondent) andMangilal (the fourth respondent) – under Section 313 CrPC were recordedon 25 January 2020 and 12 February 2020 respectively. During the courseof the trial, the CD had been produced but since it was found to be‘corrupted’, an application was made to the trial court to requisition thecopy of the CD which was available at the police station. The applicationwas allowed on 15 November 2019. On the subsequent date, PW47marked his appearance. On the next date of hearing, when PW47 wasrequired to produce the CD which was kept at the police station, hefailed to do so. In those circumstances, an application (‘‘firstapplication’’) was preferred to requisition the said CD but thisapplication was rejected by the trial court on the ground that the evidenceof PW47 had been recorded and last opportunity had already beengiven to him to produce the CD. Single Judge of the High Court on 2March 2020 allowed the petition instituted by the appellant to challengethe order of the trial court, noting that the CD was vital piece ofevidence and had been provided to all the accused along with the charge-sheet. Resultantly, the trial court was directed to take necessary stepsfor requisitioning the CD through the police station and for taking it onrecord from PW47.

4 ‘‘SHO’’

5 ‘‘CD’’

6 ‘‘IEA’’

DEFG

A7. On 15 March 2021, another application (‘‘second application’’)was moved under Section 311 on behalf of the prosecution for summoningthe decoding register.

8. On 5 July 2021, the prosecution filed an application (‘‘thirdapplication’’) under Section 311 CrPC stating that the court had takenBon record the CD and certificate under Section 65B of the EvidenceAct, in pursuance of the order of the High Court admitting its previousapplication. By filing the third application, the prosecution soughtpermission to summon the certificate issuer and examine said witness inorder to prove the certificate.

C9. On 16 July 2021, an application was filed by the prosecution(“fourth application”) under Section 311 to summon the nodal officerof Idea and under Section 91 to produce the call data records of twomobile numbers.

10. On 22 September 2021, the trial court allowed the thirdDapplication but dismissed the fourth application. This order of the trialcourt was challenged before the High Court.

11. In the meantime, the trial court by an order dated 13 November2021 dismissed the second application as well. The trial court in its orderdated 13 November 2021 rejected the application for the production ofEthe decoding register on the ground that:

(i) The document which the prosecution desired to summon doesnot form part of the investigation; and

(ii) The document has not been obtained during the course of theinvestigation.F

Consequently, on the same date, the trial court also recorded thatthe evidence of the prosecution stood closed. The appellant challengedthis order of the trial court before the High Court invoking its jurisdictionunder Section 482 CrPC. While rejecting this petition on 8 April 2022 inMisc. Criminal Case No. 57152 of 2021, the Single Judge of the HighGCourt held that

A. The decoding registers are not part of the case diary or thecharge-sheet;

B.The prosecution has closed its evidence; and

C.The application has been filed at belated stage withoutcollecting all the relevant information (for instance, whetherthe decoding register is available with the service provider ornot).

12. Separately, on the same date i.e. 8 April 2022, the High Courtalso disposed of two proceedings under Section 482 instituted by theState of Madhya Pradesh[7] and by the appellant[8] challenging the order ofthe trial court dated 22 September 2021 dismissing the fourth applicationunder Section 91 CrPC for summoning of documents. The Single Judgenoted that the application under Section 91 had been filed by theprosecution for summoning the CDR and CAF of two mobile numberson the ground that they were crucial for establishing the guilt of accusedSawan. It was urged before the High Court that PW41, the nodal officerof Airtel, had specifically deposed that he had forwarded the call detailsof the mobile numbers to the SDOP along with letter dated 11 January2016 (Exhibit P/103) but these were not filed along with the charge-sheet. However, the High Court held that since these documents wereavailable in the case diary, they could be exhibited under Section 91CrPC. Accepting the plea of the prosecution and the appellant, the SingleJudge set aside the trial court’s order which had dismissed the applicationseeking the summoning of the documents and the trial court was directedto pass consequential order on the application.

13. It is however the other judgment of the High Court dated8 April 2022 in Misc. Criminal Case No. 57152 of 2021 mentioned earlierwhich rejected the petition instituted by the appellant under Section 482challenging the order of the trial judge dated 13 November 2021 dismissingthe second application which has been called into question in theseproceedings.

14. We have heard Mr Ramakrishnan Viraraghavan, senior counselappearing on behalf of the appellant. Mr Shreeyash U Lalit, counsel forthe State of MP has supported the submissions in the appeal.

15. Mr SK Gangele, senior counsel appears on behalf of the second,third and sixth respondents while Ms Bansuri Swaraj, appears on behalfof the fourth and fifth respondents.

7 MCrC No. 61600 of 2021

8 MCrC No. 51642 of 2021

A16. The submission which has been urged by Mr RamakrishnanViraraghavan, senior counsel on behalf of the appellant and byMr Shreeyash U Lalit , counsel for the State of MP are set out below:

(i)The production of the decoding register is crucial to establishthe co- relationship between the location of the accused andBthe cell phone tower;

(ii)The application was filed by the prosecution before the closureof evidence and it was only after the rejection of theapplication that the order dated 30 November 2022 of theSecond Additional Sessions Judge recorded that the evidenceCof the prosecution stood closed;

(iii) In any event, there was no bar in law to the filing of anapplication under Section 311 even after the closure ofevidence;

(iv) The production of the decoding register was sought underDthe provisions of Section 91 CrPC which exists independentof Section 207 CrPC; and

(v) There is no element of prejudice to the accused since theenclosures to the supplementary charge-sheet specificallyrefer to the certificates of the nodal officers of the cellularEcompanies.

17. Mr SK Gangele, senior counsel appearing on behalf of thesecond, third and sixth respondents has urged that:

(i)In view of the bar contained in Section 301 CrPC, it is notopen to the appellant who is the spouse of the deceased toFpursue these proceedings;

(ii)The nodal officers have already been examined on 7 May2018, 17 July 2018 and 31 October 2019;

(iii) The locations have been mentioned by the witnesses; and

G(iv) All relevant documents are already on record.18. Ms Bansuri Swaraj, counsel appearing on behalf of therespondents four and five submitted that:

(i)Four applications were submitted by the prosecution underSection 311 CrPC;H

(ii)53 witnesses have been examined;

(iii) Final arguments at the trial are to be addressed on 25 July2022;

(iv) In view of the decision of this Court in Swapan KumarChatterjee v. Central Bureau of Investigation[9], anapplication under Section 311 CrPC ought not be allowedwhere:

a. It is an abuse of the process of the Court; or

b. The prosecution‘s evidence was closed long back.

(v) The prosecution‘s evidence was closed long back;

(vi) The reasons for non-examination of the witnesses earlierare not satisfactory;

(vii) The accused had been denied bail and are in custody asunder trials for over 6.5 years; and

(viii) The right to speedy trial is an integral component of Article21 of the Constitution which mandates fairness to the accused.

19. Accordingly, it was urged that the nodal officers were examinedin 2017-2018, the CD has already been brought on record and the twoCourts having concurrently rejected the application under Section 311,the balance of justice must weigh in favour of the accused.

20. First, we deal with the objection of the respondents regardingthe bar in Section 301 of the CrPC on the basis of which it has beenargued that it is not open to the Appellant who is the spouse of the deceasedto pursue these proceedings.

21. The respondents have relied upon the decisions in Shiv Kumarv. Hukam Chand[10] and Dhariwal Industries Ltd. v. KishoreWadhwani[11]to further their contention. However, both these cases dealwith this Court having declined private counsel to conduct prosecutioninstead of Public Prosecutor in sessions trial by relying upon thespecific bar in Section 225 CrPC. Accordingly, these cases can be clearlydistinguished from the facts of the present case. In the present case,

9 (2019) 14 SCC 32810 (1999) 7 SCC 46711 (2016) 10 SCC 378

Aeven the application under Section 311 in the sessions trial was movedby the State and there is no question of the appellant wanting to replacethe public prosecutor in the trial.

22. On the other hand, in Mina Lalita Baruwa v. State ofOrissa[12], the appellant was alleged to have been gang raped by theBassailants who were arrayed as accused at the sessions trial. PW 18was Sub Divisional Judicial Magistrate before whom the TestIdentification Parade[13] was held. PW 18 had recorded the proceedingsin the prescribed format and certain documents were marked as Ext.The grievance of the appellant was that during the course of theexamination in chief, an incorrect version was spoken to by PW18 as anCauthorized officer who conducted the TIP. However, the prosecutionfailed to confront him with the aforementioned Ext. 8 or to controvertthe incorrect statement in order to remove any source of ambiguitywhich would otherwise prejudice the case of the prosecution. Theappellant approached the Special Public Prosecutor to set right the errorDof PW18 in his evidence and to confront him inter alia with documentmarked as Ext. 8.The public prosecutor not having taken any steps, theappellant moved the trial judge with an application for recalling PW18.The trial judge rejected the application on the ground of maintainability,holding that such an application could not have been filed at the instanceof the victim. The High Court, placing reliance on the provisions of SectionE301 CrPC observed that the informant had limited role to play and itwas not open to her to file an application for recalling witnesses.In this backdrop, this Court examined the provisions of Section301. Section 301 is extracted below:F301. Appearance by Public Prosecutors.—(1) The PublicProsecutor or Assistant Public Prosecutor in charge of casemay appear and plead without any written authority before anyCourt in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs pleader toGprosecute any person in any Court, the Public Prosecutor orAssistant Public Prosecutor in charge of the case shall conductthe prosecution, and the pleader so instructed shall act thereinunder the directions of the Public Prosecutor or Assistant Public

12 (2013) 16 SCC 173H13 ‘‘TIP’’

Prosecutor, and may, with the permission of the Court, submitwritten arguments after the evidence is closed in the case.

23. The Court observed:

‘‘19. In criminal jurisprudence, while the offence is against thesociety, it is the unfortunate victim who is the actual sufferer andtherefore, it is imperative for the State and the prosecution toensure that no stone is left unturned. It is also the equal, if notmore, duty and responsibility of the court to be alive and alert inthe course of trial of criminal case and ensure that the evidencerecorded in accordance with law reflect upon every bit of vitalinformation placed before it. It can also be said that in that processthe court should be conscious of its responsibility and at timeswhen the prosecution either deliberately or inadvertently omit tobring forth notable piece of evidence or conspicuous statementof any witness with view to either support or prejudice the caseof any party, should not hesitate to interject and prompt theprosecution side to clarify the position or act on its own and getthe record of proceedings straight. Neither the prosecution northe court should remain silent spectator in such situations. Likein the present case where there is wrong statement made by awitness contrary to his own record and the prosecution failed tonote the situation at that moment or later when it was brought tolight and whereafter also the prosecution remained silent, the courtshould have acted promptly and taken necessary steps to rectifythe situation appropriately. The whole scheme of the Code ofCriminal Procedure envisages fool proof system in dealingwith crime alleged against the accused and thereby ensurethat the guilty does not escape and the innocent is notpunished. It is with the above background, we feel that thepresent issue involved in the case on hand should be dealt with.

(emphasis supplied)

24. The Court noted that while it is true that Section 301 placeslimitations on the right of the private person to participate in criminalproceedings, nonetheless Section 311 empowers the trial court to summonwitnesses in order to arrive at just decision. The court held in thatcontext:

DEF

162SUPREME COURT REPORTS

A‘‘21 …Therefore, reading of Sections 301 and 311 togetherkeeping in mind situation like the one on hand, it will have to bestated that the trial Court should have examined whether invocationof Section 311 was required to arrive at just decision. In otherwords even if in the consideration of the trial Court invocation ofSection 301(2) was not permissible, the anomalous evidenceBdeposed by PW-18 having been brought to its knowledge shouldhave examined the scope for invoking Section 311 and set rightthe position. Unfortunately, as stated earlier, the trial Court was ina great hurry in rejecting the appellant‘s application without actuallyrelying on the wide powers conferred on it under Section 311 CrPCCfor recalling PW-18 and ensuring in what other manner, thegrievance expressed by the victim of serious crime could beremedied. In this context, reference to some of the decisionsrelied upon by the counsel for the appellant can be usefully made.25. Further, the Court while relying upon the earlier decisions inDJ.K. International v. State (Govt. of NCT of Delhi)[14], ZahiraHabibulla H. Sheikh v. State of Gujarat[15], Manu Sharma v. State(NCT of Delhi)[16], Mohanlal Shamji Soni v. Union of India[17],Rajendra Prasad v. Narcotic Cell[18], noted:

‘‘31 …a criminal court cannot remain silent spectator. It has gotEa participatory role to play and having been invested with enormouspowers under Section 311 CrPC, as well as Section 165 of theEvidence Act, trial court in situation like the present one whereit was brought to the notice of the court that flagrant contradictionin the evidence of PW 18 who was statutory authority and inwhose presence the test identification parade was held, who isFalso Judicial Magistrate, ought to have risen to the occasion inpublic interest and remedied the situation by invoking Section 311CrPC, by recalling the said witness with further direction to thePublic Prosecutor for putting across the appropriate question orcourt question to the said witness and thereby set right the glaringGerror accordingly. It is unfortunate to state that the trial courtmiserably failed to come alive to the realities as to the nature of

14 (2001) 3 SCC 46215 (2004) 4 SCC 15816 (2010) 6 SCC 117 (1991) Supp (1) SCC 271H18 (1999) 6 SCC 110

evidence that was being recorded and miserably failed in its dutyto note the serious flaw and error in the recording of evidence ofPW 18.

26. The objection which has been raised by the second, third andsixth respondents on the basis of the provisions of Section 301 CrPClacks substance. Sub-section (1) of Section 301 stipulates that the PublicProsecutor or the Assistant Public Prosecutor in charge of case mayappear without written authority before any court in which the case isunder inquiry, trial or appeal. Sub-section (2) of Section 301 postulatesthat if any such case, any private person instructs pleader to prosecuteany person in any court, the Public Prosecutor or Assistant PublicProsecutor in charge of the case shall conduct the prosecution, and thepleader so instructed shall act under the directions of the Public Prosecutoror Assistant Public Prosecutor, and may, with the permission of the Court,submit written arguments after the evidence is closed in the case.

27. In the present case, the application for the summoning of witnessand for production of the decoding register was submitted by the State.Hence, the bar contained in Section 301 does not stand in the way.

28. Having clarified that the bar under Section 301 is inapplicableand that the appellant is well placed to pursue this appeal, we now examineSection 311 of CrPC. Section 311 provides that the Court ‘‘may’’:

(i)Summon any person as witness or to examine any personin attendance, though not summoned as witness; and

(ii) Recall and re-examine any person who has already beenexamined.

This power can be exercised at any stage of any inquiry, trial orother proceeding under the CrPC. The latter part of Section 311 statesthat the Court ‘‘shall summon and examine or recall and re-examineany such person if his evidence appears to the Court to be essential tothe just decision of the case’’. Section 311 contains power upon theCourt in broad terms. The statutory provision must be read purposively,to achieve the intent of the statute to aid in the discovery of truth.

29. The first part of the statutory provision which uses theexpression ‘‘may’’ postulates that the power can be exercised at anystage of an inquiry, trial or other proceeding. The latter part of theprovision mandates the recall of witness by the Court as it uses the

Aexpression shall summon and examine or recall and re- examine anysuch person if his evidence appears to it to be essential to the just decisionof the case. Essentiality of the evidence of the person who is to beexamined coupled with the need for the just decision of the case constitutethe touchstone which must guide the decision of the Court. The first partof the statutory provision is discretionary while the latter part is obligatory.B

30. two judge Bench of this Court in Mohanlal Shamji Soni(supra) while dealing with pari materia provisions of Section 540 of theCriminal Code of Procedure 1898 observed:

‘‘16. The second part of Section 540 as pointed out albeit imposesCupon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is thatthe evidence sought to be obtained must be essential to the justdecision of the case. When any party to the proceedings pointsout the desirability of some evidence being taken, then the courthas to exercise its power under this provision — either discretionaryDor mandatory — depending on the facts and circumstances ofeach case, having in view that the most paramount principleunderlying this provision is to discover or to obtain proper proof ofrelevant facts in order to meet the requirements of justice.’’

Justice S Ratnavel Pandian, speaking for the two judge Bench,Enoted that the power is couched in the widest possible terms and callsfor no limitation, either with regard to the stage at which it can beexercised or the manner of its exercise. It is only circumscribed by theprinciple that the ‘‘evidence to be obtained should appear to the courtessential to just decision of the case by getting at the truth by alllawful means.’’ In that context the Court observed:F

‘‘18 …Therefore, it should be borne in mind that the aid of thesection should be invoked only with the object of discoveringrelevant facts or obtaining proper proof of such facts for justdecision of the case and it must be used judicially and notGcapriciously or arbitrarily because any improper or capriciousexercise of the power may lead to undesirable results. Further itis incumbent that due care should be taken by the court whileexercising the power under this section and it should not be usedfor filling up the lacuna left by the prosecution or by the defenceor to the disadvantage of the accused or to cause serious prejudice

to the defence of the accused or to give an unfair advantage tothe rival side and further the additional evidence should not bereceived as disguise for retrial or to change the nature of thecase against either of the parties.

31. Summing up the position as it obtained from various decisionsof this Court, namely Rameshwar Dayal v. State of U.P.[19], State ofW.B. v. Tulsidas Mundhra[20], Jamatraj Kewalji Govani v. State ofMaharashtra[21], Masalti v. State of U.P.[22], Rajeswar Prosad Misrav. State of W.B.[23]and R.B. Mithani v. State of Maharashtra[24], theCourt held:

‘‘27. The principle of law that emerges from the views expressedby this Court in the above decisions is that the criminal court hasample power to summon any person as witness or recall and re-examine any such person even if the evidence on both sides isclosed and the jurisdiction of the court must obviously be dictatedby exigency of the situation, and fair play and good sense appearto be the only safe guides and that only the requirements of justicecommand the examination of any person which would depend onthe facts and circumstances of each case.’’32. The power of the court is not constrained by the closure ofevidence. Therefore, it is amply clear from the above discussion that thebroad powers under Section 311 are to be governed by the requirementof justice. The power must be exercised wherever the court finds thatany evidence is essential for the just decision of the case. The statutoryprovision goes to emphasise that the court is not hapless bystander inthe derailment of justice. Quite to the contrary, the court has vital roleto discharge in ensuring that the cause of discovering truth as an aid inthe realization of justice is manifest.

33. Section 91 CrPC empowers inter alia any Court to issuesummons to person in whose possession or power document or thingis believed to be, where it considers the production of the said document

19 (1978) 2 SCC 518

20 (1963) Supp 1 SCR 1

21 (1967) 3 SCR 415

22 (1964) 8 SCR 133

23 (1966) 1 SCR 178

24 (1971) 1 SCC 523

Aor thing necessary or desirable for the purpose of any investigation,inquiry, trial or other proceeding under the CrPC.

34. Section 91 forms part of Chapter VII of CrPC which is titled‘‘Processes to Compel the Production of Things’’. Chapter XVI of theCrPC titled ‘‘Commencement of Proceedings before Magistrates’’Bincludes Section 207 which provides for the supply to the accused of acopy of the police report and other documents in any case where theproceeding has been instituted on police report.[25] Both operate in distinctspheres.

35. In the present case, the application of the prosecution for theCproduction of the decoding registers is relatable to the provisions of Section91 CrPC. The decoding registers are sought to be produced through therepresentatives of the cellular companies in whose custody or possessionthey are found. The decoding registers are relevant piece of evidenceto establish the co-relationship between the location of the accused andthe cell phone tower. The reasons which weighed with the High CourtDand the Trial Court in dismissing the application are extraneous to thepower which is conferred under Section 91 on the one hand and Section311 on the other. The summons to produce document or other thingunder Section 91 can be issued where the Court finds that the production

25 Section 207 in The Code Of Criminal Procedure, 1973

207. Supply to the accused of copy of police report and other documents. In any casewhere the proceeding has been instituted on police report, the Magistrate shallwithout delay furnish to the accused, free of cost, copy of each of the following:-

(i) the police report;

(ii)the first information report recorded under section 154;F(iii) the statements recorded under sub- section (3) of section 161 of all persons whomthe prosecution proposes to examine as its witnesses, excluding therefrom any part inregard to which request for such exclusion has been made by the police officer undersub- section (6) of section 173;

(iv)the confessions and statements, if any, recorded under section 164;

(v)any other document or relevant extract thereof forwarded to the Magistrate with thepolice report under sub- section (5) of section 173: Provided that the Magistrate may,Gafter perusing any such part of statement as is referred to in clause (iii) and consideringthe reasons given by the police officer for the request, direct that copy of that part ofthe statement or of such portion thereof as the Magistrate thinks proper, shall befurnished to the accused: Provided further that if the Magistrate is satisfied that anydocument referred to in clause (v) is voluminous, he shall, instead of furnishing theaccused with copy thereof, direct that he will only be allowed to inspect it eitherHpersonally or through pleader in Court.of the document or thing is necessary or desirable for the purpose of anyinvestigation, trial or other proceeding under the CrPC. As already notedearlier, the power under Section 311 to summon witness is conditionedby the requirement that the evidence of the person who is sought to besummoned appears to the Court to be essential to the just decision of thecase.

36. PWs 33, 41, 43 and 48, who were the nodal officers of Idea,Airtel, Reliance and Vodafone have already been examined. During theexamination of PW-41, the nodal officer of Airtel, the witness specificallydeposed during the course of examination that:

‘‘2. Call detail of mobile number XXXXXXXXXX, which has 134pages is Exhibit P-104, I sent the same detail of the call to thepolice. Each page of the same has seal of Bharti Airtel on thesame. Call detail contains date and time wise detail of call andshort message services made/sent and received by the customer.Additionally, location of the mobile number is available incode number along with the time of the call or message forwhich call detail is provided. Location of the call made bythe mobile number in certain time has been shown withcodes, I cannot state name of the location today by seeingthe code. Location can be stated after decoding the same.We have coding chart for location, by seeing the samelocation can be started. I don’t have aforesaid chart alongwith me. Aforesaid chart is available in the office.

(emphasis supplied)

37. The relevance of the decoding register clearly emerges fromthe above statement of PW-41. Hence, the effort of the prosecution toproduce the decoding register which is crucial and vital piece of evidenceought not to have been obstructed. In terms of the provisions of Section311, the summoning of the witness for the purpose of producing thedecoding register was essential for the just decision of the case.

38. Having dealt with the satisfaction of the requirements of Section311, we deal with the objection of the respondents that the applicationshould not be allowed as it will lead to filling in the lacunae of theprosecution‘s case. However, even the said reason cannot be an absolutebar to allowing an application under Section 311.

A39. In the decision in Zahira Habibullah Sheikh (5) v. State ofGujarat[26], which was more recently reiterated in Godrej Pacific Tech.Ltd. v. Computer Joint India Ltd.[27], the Court specifically dealt withthis objection and observed that the resultant filling of loopholes on accountof allowing an application under Section 311 is merely subsidiary factorand the Court‘s determination of the application should only be based onBthe test of the essentiality of the evidence. It noted that:

‘‘28. The court is not empowered under the provisions of theCode to compel either the prosecution or the defence to examineany particular witness or witnesses on their side. This must beleft to the parties. But in weighing the evidence, the court canCtake note of the fact that the best available evidence has not beengiven, and can draw an adverse inference. The court will oftenhave to depend on intercepted allegations made by the parties, oron inconclusive inference from facts elicited in the evidence. Insuch cases, the court has to act under the second part of theDsection. Sometimes the examination of witnesses as directedby the court may result in what is thought to be “filling ofloopholes”. That is purely subsidiary factor and cannotbe taken into account. Whether the new evidence is essentialor not must of course depend on the facts of each case, and hasto be determined by the Presiding Judge.

(emphasis supplied)

40. The right of the accused to fair trial is constitutionallyprotected under Article 21. However, in Mina Lalita Baruwa (supra),while reiterating Rajendra Prasad (supra), the Court observed that it isFthe duty of the criminal court to allow the prosecution to correct an errorin interest of justice. In Rajendra Prasad (supra), the Court had heldthat:

‘‘8. Lacuna in the prosecution must be understood as the inherentweakness or latent wedge in the matrix of the prosecution case.GThe advantage of it should normally go to the accused in the trialof the case, but an oversight in the management of the prosecutioncannot be treated as irreparable lacuna. No party in trial canbe foreclosed from correcting errors. If proper evidence

26 (2006) 3 SCC 374H27 (2008) 11 SCC 108

was not adduced or relevant material was not brought onrecord due to any inadvertence, the court should bemagnanimous in permitting such mistakes to be rectified.After all, function of the criminal court is administration of criminaljustice and not to count errors committed by the parties or to findout and declare who among the parties performed better.’’

(emphasis supplied)

In the present case, the importance of the decoding registers wasraised in the examination of PW-41. Accordingly, the decoding registersmerely being additional documents required to be able to appreciate theexisting evidence in form of the call details which are already on recordbut use codes to signify the location of accused, crucial detail, whichcan be decoded only through the decoding registers, the right of theaccused to fair trial is not prejudiced. The production of the decodingregisters fits into the requirement of being relevant material which wasnot brought on record due to inadvertence.

41. Finally, we also briefly deal with the objection of therespondents regarding the stage at which the application under Section311 was filed. The respondents have placed reliance on Swapan Kumar(supra), two judge Bench decision of this Court, to argue that theapplication should not be allowed as it has been made at belated stage.The Court in Swapan Kumar (supra) observed:

‘‘11. It is well settled that the power conferred under Section 311should be invoked by the court only to meet the ends of justice.The power is to be exercised only for strong and valid reasonsand it should be exercised with great caution and circumspection.The court has wide power under this Section to even recallwitnesses for re-examination or further examination, necessaryin the interest of justice, but the same has to be exercised aftertaking into consideration the facts and circumstances of each case.The power under this provision shall not be exercised if the courtis of the view that the application has been filed as an abuse ofthe process of law.

12. Where the prosecution evidence has been closed long backand the reasons for non-examination of the witness earlier are notsatisfactory, the summoning of the witness at belated stage wouldcause great prejudice to the accused and should not be allowed.

170SUPREME COURT REPORTS

ASimilarly, the court should not encourage the filing of successiveapplications for recall of witness under this provision.’’

In the present appeal, the argument that the application was filedafter the closure of the evidence of the prosecution is manifestlyerroneous. As already noted above, the closure of the evidence of theBprosecution took place after the application for the production of thedecoding register and for summoning of the witness under Section 311was dismissed. Though the dismissal of the application and the closureof the prosecution evidence both took place on 13 November 2021, theapplication by the prosecution had been filed on 15 March 2021 nearlyeight months earlier. As matter of fact, another witness for theCprosecution, Rajesh Kumar Singh, was also released after examinationand cross-examination on the same day as recorded in the order dated13 November 2021 of the trial court.

42. The Court is vested with broad and wholesome power, interms of Section 311 of the CrPC, to summon and examine or recall andDre-examine any material witness at any stage and the closing ofprosecution evidence is not an absolute bar. This Court in ZahiraHabibulla H. Sheikh (supra) while dealing with the prayers for adducingadditional evidence under Section 391 CrPC at the appellate stage, alongwith prayer for examination of witnesses under Section 311 CrPCEexplained the role of the court, in the following terms:

‘‘43. The courts have to take participatory role in trial. Theyare not expected to be tape recorders to record whatever is beingstated by the witnesses. Section 311 of the Code and Section 165of the Evidence Act confer vast and wide powers on presidingFofficers of court to elicit all necessary materials by playing anactive role in the evidence- collecting process. They have tomonitor the proceedings in aid of justice in manner thatsomething, which is not relevant, is not unnecessarilybrought into record. Even if the prosecutor is remiss insome ways, it can control the proceedings effectively soGthat the ultimate objective i.e. truth is arrived at. Thisbecomes more necessary where the court has reasons tobelieve that the prosecuting agency or the prosecutor isnot acting in the requisite manner. The court cannot affordto be wishfully or pretend to be blissfully ignorant orHoblivious to such serious pitfalls or dereliction of duty on

the part of the prosecuting agency. The prosecutor who doesnot act fairly and acts more like counsel for the defence is aliability to the fair judicial system, and courts could not also playinto the hands of such prosecuting agency showing indifferenceor adopting an attitude of total aloofness.

(emphasis supplied)

Further, in Zahira Habibullah Sheikh (5) (supra), the Courtreiterated the extent of powers under Section 311 and held that:

‘‘27. The object underlying Section 311 of the Code is that theremay not be failure of justice on account of mistake of either partyin bringing the valuable evidence on record or leaving ambiguity inthe statements of the witnesses examined from either side. Thedeterminative factor is whether it is essential to the justdecision of the case. The section is not limited only for thebenefit of the accused, and it will not be an improper exercise ofthe powers of the court to summon witness under the sectionmerely because the evidence supports the case of the prosecutionand not that of the accused. The section is general section whichapplies to all proceedings, enquiries and trials under the Code andempowers the Magistrate to issue summons to any witness at anystage of such proceedings, trial or enquiry. In Section 311 thesignificant expression that occurs is “at any stage of anyinquiry or trial or other proceeding under this Code”. It is,however, to be borne in mind that whereas the section confers avery wide power on the court on summoning witnesses, thediscretion conferred is to be exercised judiciously, as the widerthe power the greater is the necessity for application of judicialmind.

(emphasis supplied)

43. The Court while reiterating the principle enunciated inMohanlal Shamji Soni (supra) stressed upon the wide ambit of Section311 which allows the power to be exercised at any stage and held that:

‘‘44. The power of the court under Section 165 of the EvidenceAct is in way complementary to its power under Section 311 ofthe Code. The section consists of two parts i.e.: (i) giving adiscretion to the court to examine the witness at any stage, and

A(ii) the mandatory portion which compels the court to examine awitness if his evidence appears to be essential to the just decisionof the court. Though the discretion given to the court is very wide,the very width requires corresponding caution. In Mohanlal v.Union of India this Court has observed, while considering thescope and ambit of Section 311, that the very usage of the wordsBsuch as, ‘‘any court’’, ‘‘at any stage’’, or ‘‘any enquiry or trial orother proceedings’’, ‘‘any person’’ and ‘‘any such person’’ clearlyspells out that the section has expressed in the widest- possibleterms and do not limit the discretion of the court in any way.However, as noted above, the very width requires correspondingCcaution that the discretionary powers should be invoked as theexigencies of justice require and exercised judicially withcircumspection and consistently with the provisions of the Code.The second part of the section does not allow any discretionbut obligates and binds the court to take necessary steps ifthe fresh evidence to be obtained is essential to the justDdecision of the case, “essential” to an active and alert mindand not to one which is bent to abandon or abdicate. Objectof the section is to enable the court to arrive at the truthirrespective of the fact that the prosecution or the defencehas failed to produce some evidence which is necessary forEa just and proper disposal of the case. The power is exercisedand the evidence is examined neither to help the prosecution northe defence, if the court feels that there is necessity to act interms of Section 311 but only to subserve the cause of justice andpublic interest. It is done with an object of getting the evidence inaid of just decision and to uphold the truth.

(emphasis supplied)

While reiterating the decisions of this Court in Karnel Singh v.State of M.P.[28], Paras Yadav v. State of Bihar[29], Ram Bihari Yadavv. State of Bihar[30]and Amar Singh v. Balwinder Singh[31]this CourtGheld that the court may interfere even at the stage of appeal:

28 (1995) 5 SCC 51829 (1999) 2 SCC 12630 (1998) 4 SCC 517H31 (2003) 2 SCC 518

‘‘64. It is no doubt true that the accused persons have beenacquitted by the trial court and the acquittal has been upheld, butif the acquittal is unmerited and based on tainted evidence, tailoredinvestigation, unprincipled prosecutor and perfunctory trial andevidence of threatened/terrorised witnesses, it is no acquittal inthe eye of the law and no sanctity or credibility can be attachedand given to the so- called findings. It seems to be nothing but atravesty of truth, fraud on the legal process and the resultantdecisions of courts — coram non judis and non est. There is,therefore, every justification to call for interference in these appeals.

44. For the above reasons, we have come to the conclusion thatthe decision of the High Court which is impugned in the appeal isunsustainable. We accordingly allow the appeal and set aside theimpugned judgment and order of the High Court dated 8 April 2022 inMisc. Criminal Case No. 57152 of 2021 as well as the order of theSecond Additional Session Judge, Dr. Ambedkar Nagar, District Indoredated 13 November 2021 in Sessions Trial 227 of 2016 dismissing theapplication filed by the prosecution. The application filed by theprosecution for the production of the decoding registers and for thesummoning of the witnesses of the cellular companies for that purposeis allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar,District Indore is directed to conclude Sessions Trial No. 227 of 2016 by31 October 2022.

MA No. 1144 of 2022 in SLP (Crl.) No. 2239 of 2022

45. The application has been filed on behalf of one of the accused– Mangilal Thakur - who was granted interim bail on medical groundson 6 May 2022 in SLP (Crl.) No. 2239 of 2022 for period of thirty daysfrom the date of his release. In view of the continuing medical conditionof the accused, we deem it appropriate and proper to extend the interimbail which was granted by order of this Court up to 31 October 2022subject to the same terms and conditions.

46. Pending application(s), if any, stand disposed of.

Ankit Gyan

Appeal allowed.