NOOR JAHAANversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 18484 of 2026

Noor Jahaan
                                                             .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                     :   Brijesh Kumar Pandey
Counsel for Opposite Party(s)                :   G.A.

Court No. - 78
                  HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Mr. Brijesh Kumar Pandey, learned counsel for the applicants,
learned A.G.A. for the State and perused the record.

2. The present application under Section 528 BNSS has been filed with a
prayer to quash the impugned order dated 20.04.2026 passed by the Sessions
Judge, Rampur in Sessions Trial No. 54 of 2024 (State v. Ahmad Hasan and
Another) arising out of Case Crime No. 0244 of 2023 under Section 498A,
304-B IPC and 3/4 D.P. Act, P.S-Azeem Nagar, District-Rampur whereby
the learned Court below rejected the application filed under Section 311
Cr.P.C., for the recalling the prosecution witness.

3. Learned Counsel for the applicant further submits that applicant is
facing trial u/s 498A, 304-B IPC and 3/4 D.P. Act. According to the post
mortem report the immediate cause of death is Coma due to Ante Mortem
head injury.

4. It has been submitted by learned counsel for the applicants that during
trial five prosecution witnesses have been examined and the applicant wants
to recall PW-5, i.e., Doctor Nitin Sharma and to further re examine him as
material witness who conducted the post-mortem of the deceased and during
cross-examination certain questions could not be asked which are relevant
for the just decision of the case.The applicant in his application has
mentioned U/s 311 C.r.P.C the relevant questions which need to be asked.

5. The Hon’ble Supreme Court in Manju Devi v. State of Rajasthan
[(2019) 6 SCC 203] , a two-Judge Bench of this Court noted that an
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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 : (SCC p. 209, para 13)

“13. … 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, Dinesh Maheshwari J. expounded on the
principles underlying Section 311 in the following terms:

'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 311CrPC and amplitude of the powers of
the court thereunder have been explained by this Court in several
decisions.'

In Natasha Singh v. CBI [ (2013) 5 SCC 741] , 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 :

  '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
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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'.

'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 311CrPC 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 311CrPC 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 Page 4 of 6 the said witness is in fact, essential to
the just decision of the case."



                                                        (emphasis in original)

6. In the light of decision as discussed above and in the interest of justice,
this Court is of the opinion that in case the applicant deposits the cost of Rs.
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                                    5,000/- to be paid to PW-5, within a period of four weeks from today, the
                                    Court concerned shall give a fresh opportunity to the applicant to recall and
                                    re-examine the PW-5 Dr Nitin Sharma on specific grounds.

                                    7. With the aforesaid direction, this application is disposed of.

                                    May 5, 2026
                                    Aditya Tripathi

                                                                                       (Nand Prabha Shukla,J.)




Digitally signed by :-
ADITYA TRIPATHI
High Court of Judicature at Allahabad