Clearing of prosecution evidence not an absolute bar from re-examining materials/witnesses under Section 311 CrPC: Supreme Court  

Supreme Court: While determining the powers of the Courts under Section 311 CrPC, the Division Bench of Dhananjaya Y Chandrachud* and AS Bopanna, JJ., held that the Court is vested with broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 


The instant appeal was filed by the appellant—the spouse of an advocate who was brutally murdered outside his office on 18-11-2015—to assail the impugned orders of the M.P. High Court rejecting an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of the accused persons.  

An FIR was filed regarding the incident dated 18-11-2015 for an offence punishable under Section 302 read with Section 34 of the Penal Code 1860. The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury and following persons were arrested during the course of the investigation: Vikas, Sawan, Mangilal, Suresh and Raju.  

Among the enclosures to the supplementary charge-sheet were certificates of the nodal officers of certain cellular companies, namely Airtel, Reliance, Idea, and Vodafone. Upon the commencement of the recording of evidence at the trial, the nodal officers were examined.  

The Impugned Order 

The genesis of the issue was that an application was filed by the prosecution under Section 311 CrPC to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers. A similar application was filed under Section 311 seeking to call for the production of the decoding register.  

The aforesaid applications were dismissed by the Trial Court on the ground that the document which the prosecution desired to summon did not form a part of the investigation; and that the document had not been obtained during the course of the investigation. In appeal, the High Court, while affirming the order of the Trial Court held:   

  • The decoding registers are not part of the case diary or the charge-sheet;  
  • The prosecution has closed its evidence; and  
  • The application has been filed at a belated stage without collecting all the relevant information (for instance, whether the decoding register is available with the service provider or not). 

Analysis and Findings  

Rejecting the contention of the defendant that it was not open for the appellant, wife of the deceased to pursue the proceedings owing to the bar in Section 301 of the CrPC, the Court observed that in the case at hand, the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way.  

Power of Court under Section 311 CrPC 

Examining the Statutory interpretation of Section 311, the Court observed the following: 

  • The power can be exercised at any stage of any inquiry, trial, or proceeding; 
  • The power of the court is not constrained by the closure of evidence. The broad powers under Section 311 are to be governed by the requirement of justice;  
  • The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. 

The Court expressed, 

“Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitutes the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.” 

Considering the above, the Court observed the following reasons to allow the application of the appellant:  

  • The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found.  
  • The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower.  
  • The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other.  
  • The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing ―is necessary or desirable for the purpose of any investigation, trial or other proceedings under CrPC.  
  • The effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. 
  • The summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.  

Regarding the objection that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case, the Court opined that the said reason cannot be an absolute bar to allowing an application under Section 311. Relying on Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court‘s determination of the application should only be based on the test of the essentiality of the evidence. 

Hence, the Court held that the decoding registers merely being additional documents required to appreciate the existing evidence in form of the call details which are already on record—but use codes to signify the location of accused, a crucial detail—the production of the decoding registers fit into the requirement of being relevant material which was not brought on record due to inadvertence and production of the registers would not prejudice the accused persons’ right to fair trial. 

Whether the Application was filed after the Closure of Evidence? 

Rejecting the contention that the application was filed after the closure of the evidence of the prosecution as manifestly erroneous, the Court observed that the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. The Court noted that though the dismissal of the application and the closure of the prosecution evidence both took place the same date, the application by the prosecution had been filed nearly eight months earlier.  

Further, the Court held that the Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 


In the backdrop of above, the impugned decision of the High Court, as well as that of the Trial Court, were set aside. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose was allowed. 

[Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, decided on 08-08-2022]  

*Judgment by: Justice Dhananjaya Y Chandrachud 


For the Appellant: Ramakrishnan Viraraghavan, Senior Counsel 

For the State of M.P.: Shreeyash U Lalit, Counsel 

For Respondents 2nd, 3rd, 6th: SK Gangele, Senior Counsel  

For Respondents 4th and 5th: Bansuri Swaraj, Counsel  

Kamini Sharma, Editorial Assistant has put this report together. 

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