VIPIN ALIAS SHIVAM CHAUHAN AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 48288 of 2025

Vipin Alias Shivam Chauhan And Another
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)               :     Ashutosh Kumar Srivastava
Counsel for Opposite Party(s)          :     G.A.

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

1. Heard Mr. Rakesh Kumar Srivastava holding brief of Mr. Ashutosh
Kumar Srivastava, 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 allow this application and set-aside the impugned order dated
23.09.2025 passed by learned Additional Session Judge/Special Judge Court
No.2 (Prevention of Corruption Act), Meerut in Sessions Trial No.1205 of
2014 (State v. Vipin and others), Case Crime No.226 of 2014 under Sections
498A, 304B, 201 and 120B I.P.C., Police Station Bhawanpur, District-
Meerut and direct the Trial Court to summon the alleged witnesses.

3. It has been submitted by learned counsel for the applicants that applicants
filed an application under Section 311 Cr.P.C., before learned Additional
Sessions Judge to cross-examine the alleged witnesses namely Sukhdev Pal,
Smt. Asha Rani and Navjot Pal and the same has been rejected vide order
dated 23.09.2025.

4. The scope and object of Section 311 Cr.P.C. has been well settled by the
Apex Court in the following cases:-
The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar
and another reported in 2013 (14) SCC 461 has considered the nature and
scope of Section 311 Cr.P.C. with regard to recall and re-examination of
witnesses, in detail and settled the principles, which have to be borne in
mind while considering the application under Section 311 Cr.P.C. The
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relevant extract of the said judgement are reproduced hereinunder:
"17. From a conspectus consideration of the above decisions, while dealing
with an application under Section 311 Cr.P.C. 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
Cr.P.C. should ensure that the judgment should not be rendered on inchoate,
inconclusive 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 Cr.P.C. should be resorted to
only with the object of finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna
in a prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the court would result in causing
serious prejudice to the accused, resulting in miscarriage of justice.
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 Cr.P.C. 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 if
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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 Cr.P.C. 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 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. "

5. Further the Apex Court in the case of A.G. Vs. Shiv Kumar Yadav and
another reported in 2015 (91) ACC 640 has laid down that the fairness of
trial has to be seen not only from the point of view of the accused, but also
from the point of view of the victim and the society. It is not possible to lay
down precise situations when such power can be exercised. The Legislature
in its wisdom has left the power undefined. Thus, the scope of power under
Section 311 Cr.P.C. has to be considered from case to case.

6. Considering the materials brought on record and keeping the Principles
laid down by the Hon'ble Supreme Court as mentioned above, this Court is
of the view that presumption, observations and findings recorded by the trial
Court in rejecting the application under Section 311 Cr.P.C. of the applicant
under the facts and circumstances of the case are fully sustainable. From
perusal of the order impugned we find no illegality in the order impugned.
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                                    7. No interference is required.

                                    8. Accordingly, this application is dismissed.


                                                                                     (Nand Prabha Shukla,J.)
                                    May 6, 2026
                                    Aditya Tripathi




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