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-Report by Aswati Sharma

The Hon’ble Supreme Court of India on Monday in the case of Varsha Garg vs State of Madhya Pradesh and Ors. ruled that Section 311 empowers the trial court to summon witnesses to arrive at a just decision.

The decoding registers, according to the bench of Justices Dhananjaya Y Chandrachud and AS Bopanna, are a pertinent evidence piece to establish the co-relationship between both the accused’s location as well as the cell phone tower. In this case, the appellant is the wife of an advocate who’d been brutally murdered outside his office on November 18, 2015, around 23:30 hrs. An FIR was filed under Section 302 read in conjunction with Section 34 of the IPC.

The CD which was produced during the trial was found to be corrupted hence an application was made to the trial court for the requisition of the copy CD which was available at the police station. An application was preferred for requisition of the said CD but this application was rejected by the trial court.

A Single Judge of the High Court granted the appellant’s petition to challenge the trial court’s order, noting that the CD was a crucial piece of evidence that was provided to all of the accused along with the charge sheet.

This order of the trial court was challenged before the High Court by the appellant under Section 482 CrPC dismissing the second application which has been called into question in these proceedings.

The submission urged by the Counsel of Appellant was that in any event, there was no bar in law to the filing of an application under Section 311 even after the closure of evidence.

The submission which has been urged by Counsel for Respondent is that given the bar contained in Section 301 CrPC, it is not open to the appellant who is the spouse of the deceased to pursue these proceedings.

Issues before the bench were:

While Section 301 limits the right of the private person to participate in criminal proceedings, the Court noted that Section 311 empowers the trial court to summon witnesses in order to reach a just decision. The State filed an application for the summoning of witnesses and production of the decoding register. As a result, Section 301’s prohibition does not apply. The court held in that context:

“―21 …Therefore, a reading of Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether the invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant‘s application without actually relying on the wide powers conferred on it under Section 311 CrPC for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.”

The Hon’ble Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court dated 8th April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13th November 2021 in Sessions Trial 227 of 2016 dismissed the application filed by the prosecution. The application was filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular.

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