KAMLESHBHAI RAMSANGBHAI PARMAR vs STATE OF GUJARAT

R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12996 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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Approved for Reporting Yes No
✔
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KAMLESHBHAI RAMSANGBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR. AYAN I MANSURI(17271) for the Applicant(s) No. 1
MS.MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 03/09/2026

JUDGMENT
1. The present application is filed challenging the order
th
passed below Exh.59 by the learned 15 Additional
District Judge, Vadodara in Sessions Case No.137 of
2022 whereby, the application preferred by the
prosecution seeking reopening the right to re-examine
the prosecution witness who was examined below
Exh.19 and Exh.33 was recalled.
2. Heard learned advocate Mr.Ayan Mansuri for the
applicant and learned APP Ms.Monali Bhatt for the
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
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respondent-State.
2.1. Learned advocate Mr.Ayan Mansuri submits that all
the evidence has been concluded and at the stage of
final argument, the application was given. It is submitted
that as per the evidence of Hiral Bharatbhai Thakor, the
wife of the deceased, there was no reference of CD
neither reference of Certificate under section 65B. It is
submitted that the prosecution has tried to place on
record this CD by an evidence of PW 11 i.e Investigating
Officer and as the defence counsel has raised objection
with regard to the evidentary value of the CD, as an
afterthought, the prosecution has filed the application
below Exh.59. It is submitted that till the fag end the CD
was neither recovered nor produced before the learned
trial court and by recalling said witnessed the
prosecution has tried to place on record said CD and in
that background, the application requires to be allowed
and the impugned order deserves to be set aside.
2.2. Learned APP Ms.Monali Bhatt has objected the said
application.
3. Considering the submissions made by the learned
advocates for the respective parties, it emerges that the
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
03/09/2026
case of the prosecution is that husband of the witness
who was examined below Exh.19 was murdered by the
maternal uncle namely Kamleshbhai and the father
namely Prabhatbhai Thakor. As per the case of the
prosecution, the marriage which was solemnized of the
said witness with the deceased was disliked by the
accused. It emerges that occurrence of incident was
done dated 15.09.2021 and the prosecution relies on the
CD wherein, occurrence has been recorded. It is true
that as per the evidence of the Investigating Officer, this
CD was handed over by the witness who was examined
below Exh.19 however while recording the evidence of
the said witness, the CD was not referred. For that
reason, the prosecution has filed an application to recall
the witness was examined below Exh.19. It also appears
that while recording the evidence of the Investigating
Officer the yadi, FIR, opinion of the Doctor with regard
to the consciousness of the deceased, dying declaration,
FSL report, were not referred. For that reason also the
prosecution has filed an application to recall the witness
who was examined below Exh.11.
4. At this stage, reference of the provision of section 311
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
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Cr.P.C. is required to be made, which is reproduced
hereinbelow:
S. 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. As per the said provision, at any stage of the inquiry or
trial the learned trial court can summon the witness or
examine the person in attendance or recall or re-
examine the person who are already examined whose
evidence is essential for the just decision of the case. As
per the case of the prosecution, the incident which is
recorded in the CD is material evidence as well as FIR,
dying declaration, opinion of the doctor, which is
required to be referred in the during the evidence of the
Investigating Officer was not referred.
6. At this stage has referred the decision of the Apex Court
in the case of Satbir Singh Vs State of Haryana &
Ors. reported in 2023 SCC OnLine SC 1086 wherein,
it is held as under:
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9. Section 311 of the Criminal Procedure Code, 1973 (hereinafter
referred to as the "CrPC") has engaged this Court's attention before.
We will advert to a few decisions of recent vintage. While
overturning an order of the High Court allowing an application for
recall of a witness, which was rejected by the trial Court, this Court
held as under, in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340:
'17. In order to enable the court to find out the truth and render a
just decision, the salutary provisions of Section 311 are enacted
whereunder any court by exercising its discretionary authority at any
stage of inquiry, trial or other proceeding can summon any person as
witness or examine any person in attendance though not summoned
as a witness or recall or re-examine any person already examined
who are expected to be able to throw light upon the matter in
dispute. The object of the provision as a whole is to do justice not
only from the point of view of the accused and the prosecution but
also from the point of view of an orderly society. This power is to be
exercised only for strong and valid reasons and it should be exercised
with caution and circumspection. Recall is not a matter of course and
the discretion given to the court has to be exercised judicially to
prevent failure of justice. Therefore, the reasons for exercising this
power should be spelt out in the order.
18. 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],
this Court while explaining scope and ambit of Section 311 has held
as under: (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 [CrPC] and the principles of criminal law. The
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discretionary power conferred under Section 311 has to be exercised
judicially for reasons stated by the court and not arbitrarily or
capriciously."
19. In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira
Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374: (2006) 2
SCC (Cri) 8], this Court has considered the concept underlying under
Section 311 as under: (SCC p. 392, para 27)
"27. The object underlying Section 311 of the Code 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 section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of
the court to summon a witness under the section merely because
the evidence supports the case of the prosecution and not that of
the accused. The section is a general section which applies to all
proceedings, enquiries and trials under the Code and empowers the
Magistrate to issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 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 whereas the section confers a very wide power on the
court on summoning witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power the greater is the
necessity for application of judicial mind."
20. In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of
Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402: (2016) 1 SCC (Cri)
510], it was held thus: (SCC pp. 404g-405a)
"... Certainly, recall could be permitted if essential for the just
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
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decision, but not on such consideration as has been adopted in the
present case. Mere observation that recall was necessary "for
ensuring fair trial" is not enough unless there are tangible reasons
to show how the fair trial suffered without recall. Recall is not a
matter of course and the discretion given to the court has to be
exercised judiciously to prevent failure of justice and not arbitrarily.
While the party is even permitted to correct its bona fide error and
may be entitled to further opportunity even when such opportunity
may be sought without any fault on the part of the opposite party,
plea for recall for advancing justice has to be bona fide and has to
be balanced carefully with the other relevant considerations
including un-called for hardship to the witnesses and un-called for
delay in the trial. Having regard to these considerations, there is no
ground to justify the recall of witnesses already examined."
21. The delay in filing the application is one of the important
factors which has to be explained in the application. In Umar
Mohammad v. State of Rajasthan [Umar Mohammad v. State of
Rajasthan, (2007) 14 SCC 711: (2009) 3 SCC (Cri) 244], this Court has
held as under: (SCC p. 719, para 38)
"38. Before parting, however, we may notice that a contention has
been raised by the learned counsel for the appellant that PW 1 who
was examined in Court on 5-7-1994 purported to have filed an
application on 1-5-1995 stating that five accused persons named
therein were innocent. An application filed by him purported to be
under Section 311 of the Code of Criminal Procedure was rejected
by the learned trial Judge by order dated 13-5-1995. A revision
petition was filed thereagainst and the High Court also rejected the
said contention. It is not a case where stricto sensu the provisions
of Section 311 of the Code of Criminal Procedure could have been
invoked. The very fact that such an application was got filed by
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PW 1 nine months after his deposition is itself a pointer to the fact
that he had been won over. It is absurd to contend that he, after a
period of four years and that too after his examination-in-chief and
cross-examination was complete, would file an application on his
own will and volition.
The said application was, therefore, rightly dismissed.""
10. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, this
Court emphasized that a discretionary power like Section 311, CrPC
is to enable the Court to keep the record straight and to clear any
ambiguity regarding the evidence, whilst also ensuring no prejudice is
caused to anyone. A note of caution was sounded in Swapan Kumar
Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 as
under:
'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 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
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
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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.
12. Where the prosecution evidence has been closed long back and
the reasons for non-examination of the witness earlier are not
satisfactory, the summoning of the witness at belated stage would
cause great prejudice to the accused and should not be allowed.
Similarly, the court should not encourage the filing of successive
applications for recall of a witness under this provision.'
11. In Harendra Rai v. State of Bihar, 2023 SCC OnLine SC 1023, a
3-Judge Bench of this Court was of the opinion that Section 311,
CrPC should be invoked when '... it is essential for the just decision
of the case.'
12. Having considered the matter and surveyed the law supra, the
Court finds that a case for interference has been made out. Under the
peculiar facts of the present case, the request for recall of the
appellant under Section 311, CrPC was justified, as at the relevant
point of time in his initial deposition, there was no occasion for him
to bring the relevant facts relating to similarity of data before the
Court, which arose after the CFSL expert was examined.
7. Considering the above ratio, in the opinion of this Court
no prejudice would be caused to the accused as they
would have all opportunity to cross-examine the witness
and to rebut the evidence by establishing the
circumstances. However, as in absence of recalling of
the said witness, prosecution would not be able to arrive
to just decision of the case, in that background no
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R/SCR.A/12996/2026 (GJHC240631612026) JUDGMENT DATED:
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interference is required and the present application
deserves to be dismissed.
8. Resultantly, this application is dismissed.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
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