Gulzar Ali vs State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 482 No. - 5373 of 2026
Gulzar Ali
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And 2
Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Rahul Kumar Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 16
HON'BLE SHREE PRAKASH SINGH, J.
1. Heard Mr. Rahul Kumar Singh, learned counsel for the applicant, Mr.
Nirmal Kumar Pandey and Mr. Sushil Kumar Pandey, learned counsels
for the State and perused the record.
2. Notice to opposite party no. 2 is hereby dispensed with.
3. The present application under Section 482 Cr.P.C. has been filed with
the following main relief:-
"For the facts, reasons and circumstances mentioned in the
accompanying affidavit, it is most respectfully prayed that this Hon'ble
court may kindly be pleased to call the witnesses PW1 namely Smt Iddan
as well as Kiran Shukla(I.D.) BSA Office and Menu Tiwari(I.D.) BSA
Office and set aside the order dated 15.05.2026 passed by Additional and
Session Judge, FTC, Unnao."
4. Submission of learned counsel for the applicant is that while passing
the impugned order dated 15.05.2026, on an application moved on
23.03.2026, under Section 311 Cr.P.C., the request of the applicant for
summoning P.W.1 (mother of the victim), as well as the two experts,
before whom the statements of the victim were recorded, under Sections
161 and 164 Cr.P.C., has been rejected, without proper application of

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mind.
5. He submits that the victim is mentally challenged and her statements
were recorded with the assistance of the experts, namely, Ms. Kiran
Shukla and Ms. Meenu Tiwar and the victim has improved upon her
earlier version, by alleging that rape had been committed upon her,
though such an allegation was not made in the First Information Report,
wherein the allegation was only of outraging the modesty, therefore, the
summoning/examination of the said experts are very much required for
proper adjudication of the matter.
6. Further submission is that the case is at the stage of arguments and
even the application, which was moved on 23.03.2026, was decided after
two months, i.e., on 15.05.2026, therefore, there is no delay on the part of
the applicant.
7. It is argued that without recording the statements of the experts, the
trial court would not be able to reach the correct conclusion. He also
submits that no sufficient reason has been assigned as to why the
statements of the experts, before whom the statement of the mentally
challenged victim was recorded, are not relevant for adjudication of the
matter.
8. Concluding his arguments, he submits that the case of the applicant is
covered with the ratio laid down in case of Natasha Singh versus Central
Bureau of Investigation (State), reported in (2013) 5 SCC 741. Thus,
submission is that the impugned order may be set aside.
9. On the other hand, learned A.G.A. has opposed the aforesaid
submissions and argued that the applicant approached the trial court at the
belated stage, as the statement of P.W.1 was recorded on 01.08.2023 and
the application under Section 311 Cr.P.C. was filed after about three
years. He further submits that since the examination-in-chief of the
proposed witnesses has not been conducted, thus, they cannot be
permitted to be cross-examined, at this stage.
10. Having heard learned counsel for the parties and after perusal of the
records, it emerges that the statement of the mentally challenged victim

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was recorded with the assistance of two experts, namely, Ms. Kiran
Shukla and Ms. Meenu Tiwari, who, while making her statement under
Section 164 Cr.P.C., made certain serious allegations, which were not
narrated in the First Information Report. For the first time, the allegation
of rape was levelled by the victim, against the applicant, in her statement
under Section 164 Cr.P.C. Even the age and other descriptions have also
been made with the help of the experts, who assessed the statement of the
victim.
11. The fact remains that the prosecution has failed to produce the
material witnesses, namely, Ms. Kiran Shukla and Ms. Meenu Tiwari,
though the statement of the victim was recorded by the Investigating
Officer in their presence and with their assistance.
12. The provision of Section 311 of CrPC provides to summon the
material witness and examine the person present. Section 311 of CrPC is
quoted here-in-under:
"
Section 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."
13. A bare reading of the aforesaid provision indicates that 'the trial court
may, at any stage of any inquiry, trial or other proceeding, summon any
person as a witness'. This shows that before pronouncing the judgment, if
the trial court reaches to the conclusion that for proper and just
adjudication of the trial, examination of any witness is required, such
witness may be summoned. The provision also mandates that such
witness may be examined or re-examined, as the case may be.
14. This Court is conscious of the fact that before recording a finding of
conviction against an accused, all relevant possibilities bearing upon the

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innocence of the accused, are required to be explored. In the present
matter, two material witnesses have not been produced by the
prosecution. The applicant moved an application in the month of March,
2026 for summoning those witnesses, which came to be decided after two
months by the trial court.
15. This Court is also aware that an application under Section 311 Cr.P.C.
can be refused to entertain, if it is filed only to cause delay in trial
proceedings, but at the same time, the interest of the accused cannot be
left to be jeopardize merely on unfounded presumption of delay.
16. Hon'ble Supreme Court, while dealing with the identical issue, has
held that age of a case by itself cannot be decisive when a request is made
for calling of a material witness for his examination, which is rendered in
case of
Manju Devi vs. State of Rajasthan and another, (2019) 6 SCC
203. Paragraph 12 and 13 of the judgment is referred herein:-
"12. The peculiar facts and circumstances of the case have either been
ignored or have been cursorily dealt by the trial court with the
observations that the effect of non-availability of the original post-mortem
report would be considered at the time of the final disposal of the matter.
In fact, the principal reason weighing with the trial court in declining the
prayer for examination of the said witness had been that the case was
pending since the year 2010. The High Court, on the other hand, chose
not to exercise its powers under Section 482 CrPC, with the only
observation that the discretion so exercised by the trial court was not to
be interfered with.
13. Though it is expected that the trial of a sessions case should proceed
with reasonable expedition and pendency of such a matter for about 8-9
years is not desirable but then, 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."
17. It has been observed by the Hon'ble Apex Court that the pendency of
the length and duration of a case cannot come into the way for ensuring

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the justice for taking all necessary and material evidence and, therefore, it
has been held that while dealing with the situation where a request for
calling of a witness for examination is made, the same should not be
ignored or dealt with cursorily.
18. In this regard, it is trite that the power vest in terms of Section 311 of
CrPC, to the Court, to summon and examine or recall and re-examine any
material witness at any point of time/stage, could not be curtailed merely
because of any delay in filing the application for recall of such material
witness as the uses of the words in Section 311 such as "any court", "at
any stage", or "any inquiry or trial or other proceeding", "any person", and
"any such person" apparently discernible that the provision itself
expresses the widest possible term and there is no limit of the discretion
of court in any way.
19. I have also considered that the trial court, while passing the impugned
order, has failed to record any finding regarding the irrelevance of the
witnesses, namely, Ms. Kiran Shukla and Ms. Meenu Tiwari. The only
finding recorded is that since the examination-in-chief has not been
conducted, therefore cross-examination cannot be permitted. Such a
finding is erroneous and groundless as, if the trial court reaches to the
conclusion that the examination of a witness is necessary, such witness
can be summoned at any stage, prior to the pronouncement of the
judgment. Therefore, there can be no legal bar of summoning the
witnesses only because their examination-in-chief has not yet been
conducted.
20. I am also aware of the law rendered by the Apex Court in the case of
Natasha Singh (supra) . Paragraph 15 of the above-noted judgment is
extracted as under:
"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

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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 not limit
the discretion of the court in any way. 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."
21. The Hon'ble Supreme Court has categorically held that for
discovering the relevant facts and obtaining proper proof so as to arrive at
a just decision, the power under Section 311 Cr.P.C. must be exercised
judicially and not capriciously.
22. It is long settled law that examination of a witness cannot be refused
merely on the ground that the evidence of such witness may not be
conclusive, if the evidence is otherwise relevant. In the present case, this
Court is of the considered opinion that the statements of the experts, with
whose assistance, the statement of the mentally challenged victim was
recorded under Section 164 Cr.P.C., constitute relevant evidence,
particularly in view of the fact that the victim introduced the allegation of
rape for the first time, in her statement, under Section 164 Cr.P.C.
23. In view of the aforementioned submissions and discussions above,
this Court finds merit in this present application. Consequently, the
impugned order dated 15.05.2026 is hereby set aside.
24. The matter is remitted to the trial court concerned to consider and

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decide the application of the applicant, under Section 311 Cr.P.C. afresh,
in accordance with law and in the light of the observations made
hereinabove, within a period of eight weeks, from the date of production
of a certified copy of this order.
25. The application is at the admission stage.
allowed
(Shree Prakash Singh,J.)
July 15, 2026
Raj
Digitally signed by :-
RAJ NIGAM
High Court of Judicature at Allahabad,
Lucknow Bench