Holding

The decoding registers are relevant evidence and, under Sections 91 and 311 CrPC, the court must summon the nodal officers and produce the registers as they are essential to a just decision.

Summary

The case arose from the murder of an advocate, for which several accused were tried. During trial the prosecution sought the production of decoding registers of cellular companies to link the accused’s location with cell towers, and to summon the nodal officers as witnesses under Sections 91 and 311 of the CrPC. The trial court and the High Court dismissed these applications, holding that the evidence was closed and the documents were not part of the charge‑sheet. The Supreme Court examined the scope of Sections 91, 311 and 301 CrPC, the requirement that evidence be essential for a just decision, and the constitutional guarantee of a fair trial under Article 21. It held that the decoding registers were relevant, the prosecution’s evidence was not yet closed when the applications were filed, and the court has a duty to allow correction of inadvertent omissions. Consequently, the appeal was allowed, the orders dismissing the applications were set aside, and the trial court was directed to complete the trial by 31 October 2022.

Issues considered

The trial court’s power to dismiss the prosecution’s application for production of decoding registers under Section 91 CrPC
The propriety of refusing to summon the nodal officers of cellular companies under Section 311 CrPC after the prosecution’s evidence was closed
Whether Section 301 CrPC bars a private person (the appellant) from seeking such relief
The relevance and essentiality of decoding registers for establishing the accused’s location
Whether allowing the applications would prejudice the accused’s right to a fair trial under Article 21

Legislation cited

Code of Criminal Procedure, 1973s. 207, s. 301, s. 311, s. 91
Constitution of Indias. Article 21
Indian Evidence Act, 1872s. 165, s. 65B

Subjects

Section 311 CrPCSection 91 CrPCdecoding registerscellular evidenceclosure of evidencefair trialArticle 21witness summoningcriminal procedureevidence

Judgment

150 [2022]REPORTS
SUPREME COURT 13 S.C.R. 150 [2022] 13 S.C.R.

A VARSHA GARG
v.
THE STATE OF MADHYA PRADESH & ORS.
(Criminal Appeal No. 1021 of 2022)
B AUGUST 08, 2022
[DR DHANANJAYA Y CHANDRACHUD AND
A. S. BOPANNA, JJ.]
Code of Criminal Procedure, 1973 – ss. 91, 311 – Challenge
to the dismissal of applications filed by the prosecution for the
C
production of the decoding registers and for summoning of the
witnesses of the cellular companies – Held: 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 –
Summons to produce a document or other thing u/s.91 can be issued
D where Court finds that production of the document or thing “is
necessary or desirable for the purpose of any investigation, trial
or other proceeding” under CrPC – Power u/s.311 to summon a
witness is conditioned by the requirement that the evidence of the
person who is sought to be summoned appears to the Court to be
essential to the just decision of the case – In the instant case, the
E
nodal officers of the cellular companies were examined, they stated
that location of call made by the mobile number is shown by codes
and location can be stated by decoding the same – Hence, decoding
register is relevant – It is a crucial piece of evidence – Summoning
of witness for the purpose of producing register was essential.
F
Allowing the appeal, the Court
HELD: 1. In the present case, the application of the
prosecution for the production of the decoding registers is
relatable to the provisions of Section 91 CrPC. The decoding
registers are sought to be produced through the representatives
G 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
H application are extraneous to the power which is conferred under
150
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 151
ORS.

Section 91 on the one hand and Section 311 on the other. The A
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 proceeding under the CrPC. As
already noted, the power under Section 311 to summon a witness
B
is conditioned by the requirement that the evidence of the person
who is sought to be summoned appears to the Court to be essential
to the just decision of the case. [Para 35][166-C-D; 167-A-B]
2. The relevance of the decoding register emerges from
the statement of PW-41. Hence, the effort of the prosecution to
produce the decoding register which is a crucial and vital piece C
of evidence ought not to have been obstructed. In terms of the
provisions of Section 311, the summoning of the witness for the
purpose of producing the decoding register was essential for the
just decision of the case. [Para 37][167-F]
3. Having dealt with the satisfaction of the requirements of D
Section 311, we deal with the objection of the respondents that
the application should not be allowed as it will lead to filling in
the lacunae of the prosecution‘s case. However, even the said
reason cannot be an absolute bar to allowing an application under
Section 311. [Para 38][167-G-H] E
4. The right of the accused to a fair trial is constitutionally
protected under Article 21. However, in Mina Lalita Baruwa, while
reiterating Rajendra Prasad, the Court observed that it is the
duty of the criminal court to allow the prosecution to correct an
error in interest of justice. In the present case, the importance F
of the decoding registers was raised in the examination of PW-
41. Accordingly, the decoding registers merely being additional
documents required to be able 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, which
can be decoded only through the decoding registers, the right of G
the accused to a fair trial is not prejudiced. The production of the
decoding registers fits into the requirement of being relevant
material which was not brought on record due to inadvertence.
[Para 40][168-F; 169-C]
H
152 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 5. For the above reasons, this Court has come to the
conclusion that the decision of the High Court which is impugned
in the appeal is unsustainable. 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 is allowed. [Para 44][173-C, D-E]
B
Zahira Habibulla H. Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; Rajendra Prasad v.
Narcotic Cell (1999) 6 SCC 110; Rameshwar Dayal v.
State of U.P. (1978) 2 SCC 518 : [1978] 3 SCR 59;
Mohanlal Shamji Soni v. Union of India (1991) 1 Supp
C SCC 271 : [1991] 1 SCR 712 - relied on.
Shiv Kumar v. Hukam Chand (1999) 7 SCC 467 : [1999]
2 Suppl. SCR 81 and Dhariwal Industries Ltd. v. Kishore
Wadhwan (2016) 10 SCC 378 : [2016] 5 SCR 212 –
distinguished.
D
Swapan Kumar Chatterjee v. Central Bureau of
Investigation (2019) 14 SCC 328 : [2019] 3 SCR 713;
Mina Lalita Baruwa v. State of Orissa (2013) 16 SCC
173 : [2013] 16 SCR 788; J.K. International v. State
(Govt. of NCT of Delhi) (2001) 3 SCC 462 : [2001] 2
E SCR 90; Manu Sharma v. State (NCT of Delhi) (2010)
6 SCC 1 : [2010] 4 SCR 103; State of W.B. v. Tulsidas
Mundhra (1963) 1 Suppl. SCR 1; Jamatraj Kewalji
Govani v. State of Maharashtra (1967) 3 SCR 415;
Masalti v. State of U.P. (1964) 8 SCR 133; Rajeswar
F Prosad Misra v. State of W.B. (1966) 1 SCR 178; R.B.
Mithani v. State of Maharashtra (1971) 1 SCC 523;
Zahira Habibullah Sheikh (5) v. State of Gujarat (2006)
3 SCC 374 : [2006] 2 SCR 1081; Godrej Pacific Tech.
Ltd. v. Computer Joint India Ltd. (2008) 11 SCC 108 :
[2008] 11 SCR 571; Karnel Singh v. State of M.P. (1995)
G 5 SCC 518 : [1995] 2 Suppl. SCR 629; Paras Yadav v.
State of Bihar (1999) 2 SCC 126 : [1999] 1 SCR 55;
Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 :
[1998] 2 SCR 1097; Amar Singh v. Balwinder Singh
(2003) 2 SCC 518 : [2003] 1 SCR 754 – referred to.
H
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 153
ORS.

Case Law Reference A
[2019] 3 SCR 713 referred to Para 18
[1999] 2 Suppl. SCR 81 distinguished Para 21
[2016] 5 SCR 212 distinguished Para 21
[2013] 16 SCR 788 referred to Para 22 B
[2001] 2 SCR 90 referred to Para 25
[2004] 3 SCR 1050 relied on Para 25
[2010] 4 SCR 103 referred to Para 25
[1991] 1 SCR 712 relied on Para 25 C
[1978] 3 SCR 59 relied on Para 31
[2006] 2 SCR 1081 referred to Para 38
[ 2008] 11 SCR 571 referred to Para 38
[1995] 2 Suppl. SCR 629 referred to Para 43 D
[1999] 1 SCR 55 referred to Para 43
[1998] 2 SCR 1097 referred to Para 43
[2003] 1 SCR 754 referred to Para 43
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. E
1021 of 2022.
From the Judgment and Order dated 08.04.2022 of the High Court
of Madhya Pradesh at Indore in Misc. Criminal Case No. 57152 of
2021.
With F

MA No. 1144 of 2022 in SLP (Crl) No. 2239 of 2022.
Ramakrishnan Viraraghavan, Sr. Adv., K. Krishna Kumar,
Preetam Shah, Ms. Shashi Kiran, Advs. for the Appellant.
S. K. Gangele, Sr. Adv., Shreeyash U. Lalit, Pashupathi Nath G
Razdan, Mirza Kayesh Begg, Prakhar Srivastav, Ms. Ayushi Mittal,
Ms. Priya Sharma, Prathvi Raj Chauhan, Ms. Ritu Gangele, Arup
Banerjee, Ms. Bansuri Swaraj, Siddhesh Katwal, Ms. Manya Hasija,
Vikram Dubey, Ms. Ana Upadhyay, Akash Singh, Nihaar Dharmadhikari,
Nirnimesh Dube, Advs. for the Respondents.
H
154 SUPREME COURT REPORTS [2022] 13 S.C.R.

A By Courts Motion
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. A Single Judge of the Indore Bench of the High Court of Madhya
B Pradesh rejected, by a judgment dated 8 April 2022, a petition instituted
by the appellant under Section 482 of the Code of Criminal Procedure
19731 registered as Misc. Criminal Case No. 57152 of 2021.
2. The petition addressed a challenge to the correctness of an
order dated 13 November 2021 of the Second Additional Sessions Judge,
C Dr. Ambedkar Nagar, District Indore 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 accused
Vikas, Mangilal and Suresh.
3. The appellant is the spouse of an advocate who was brutally
D murdered outside his office at about 2330 hrs on 18 November 2015.
Following the homicide, a First Information Report bearing Criminal
Complaint No. 734 of 2015 was registered with Police Station2 Mhow,
District Indore on 19 November 2015 for an offence punishable under
Section 302 read with Section 34 of the Indian Penal Code 1860 3. The
investigation was initiated. The post mortem report indicated that the
E homicide was caused due to a firearm injury. The second, third, fourth,
fifth and sixth respondents (i.e., Vikas, Sawan, Mangilal, Suresh and
Raju) were arrested during the course of the investigation.
4. A charge-sheet was submitted after investigation on 15
February 2016. A supplementary charge-sheet was submitted on 20
F November 2016. The case has been committed to the Court of the Second
Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore and
was registered as Sessions Trial 227 of 2016.
5. Among the enclosures to the supplementary charge-sheet were
certificates dated 11 January 2016 of the nodal officers of certain cellular
G companies, namely:
(i) a certificate dated 11 January 2016 of Airtel;

1
‘‘CrPC’’
2
“P.S.”
3
H ‘‘IPC’’
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 155
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

(ii) a certificate dated 18 January 2016 of Reliance; A
(iii) a certificate dated 30 March 2016 of Idea;
(iv) a certificate dated 6 June 2016 of Vodafone.
Upon the commencement of the recording of evidence at the
trial, the nodal officers of Idea (PW33), Airtel (PW41), Reliance (PW43) B
and Vodafone (PW48) were examined on 17 November 2017, 7 May
2018, 17 July 2018 and 31 October 2018. The Station House Officer 4,
P.S. Mhow between February 2016 and April 2017, was examined by
the prosecution as PW47 on 31 October 2018. PW47 had filed the
supplementary charge-sheet and had prepared a compact disc5 with
call details of the co-accused. He also admitted that he had not filed a C
certificate as required under Section 65B of the Indian Evidence Act
18726 in relation to the CD.
6. The statements of accused – Suresh (the fifth respondent) and
Mangilal (the fourth respondent) – under Section 313 CrPC were recorded
on 25 January 2020 and 12 February 2020 respectively. During the course D
of the trial, the CD had been produced but since it was found to be
‘corrupted’, an application was made to the trial court to requisition the
copy of the CD which was available at the police station. The application
was allowed on 15 November 2019. On the subsequent date, PW47
marked his appearance. On the next date of hearing, when PW47 was E
required to produce the CD which was kept at the police station, he
failed to do so. In those circumstances, an application (‘‘first
application’’) was preferred to requisition the said CD but this
application was rejected by the trial court on the ground that the evidence
of PW47 had been recorded and a last opportunity had already been
given to him to produce the CD. A Single Judge of the High Court on 2 F
March 2020 allowed the petition instituted by the appellant to challenge
the order of the trial court, noting that the CD was a vital piece of
evidence and had been provided to all the accused along with the charge-
sheet. Resultantly, the trial court was directed to take necessary steps
for requisitioning the CD through the police station and for taking it on G
record from PW47.

4
‘‘SHO’’
5
‘‘CD’’
6
‘‘IEA’’ H
156 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 7. On 15 March 2021, another application (‘‘second application’’)
was moved under Section 311 on behalf of the prosecution for summoning
the decoding register.
8. On 5 July 2021, the prosecution filed an application (‘‘third
application’’) under Section 311 CrPC stating that the court had taken
B on record the CD and a certificate under Section 65B of the Evidence
Act, in pursuance of the order of the High Court admitting its previous
application. By filing the third application, the prosecution sought
permission to summon the certificate issuer and examine said witness in
order to prove the certificate.
C 9. On 16 July 2021, an application was filed by the prosecution
(“fourth application”) under Section 311 to summon the nodal officer
of Idea and under Section 91 to produce the call data records of two
mobile numbers.
10. On 22 September 2021, the trial court allowed the third
D application but dismissed the fourth application. This order of the trial
court was challenged before the High Court.
11. In the meantime, the trial court by an order dated 13 November
2021 dismissed the second application as well. The trial court in its order
dated 13 November 2021 rejected the application for the production of
E the decoding register on the ground that:
(i) The document which the prosecution desired to summon does
not form a part of the investigation; and
(ii) The document has not been obtained during the course of the
investigation.
F
Consequently, on the same date, the trial court also recorded that
the evidence of the prosecution stood closed. The appellant challenged
this order of the trial court before the High Court invoking its jurisdiction
under Section 482 CrPC. While rejecting this petition on 8 April 2022 in
Misc. Criminal Case No. 57152 of 2021, the Single Judge of the High
G Court held that
A. The decoding registers are not part of the case diary or the
charge-sheet;
B. The prosecution has closed its evidence; and

H
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 157
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

C. The application has been filed at a belated stage without A
collecting all the relevant information (for instance, whether
the decoding register is available with the service provider or
not).
12. Separately, on the same date i.e. 8 April 2022, the High Court
also disposed of two proceedings under Section 482 instituted by the B
State of Madhya Pradesh7 and by the appellant8 challenging the order of
the trial court dated 22 September 2021 dismissing the fourth application
under Section 91 CrPC for summoning of documents. The Single Judge
noted that the application under Section 91 had been filed by the
prosecution for summoning the CDR and CAF of two mobile numbers
on the ground that they were crucial for establishing the guilt of accused C
Sawan. It was urged before the High Court that PW41, the nodal officer
of Airtel, had specifically deposed that he had forwarded the call details
of the mobile numbers to the SDOP along with a letter dated 11 January
2016 (Exhibit P/103) but these were not filed along with the charge-
sheet. However, the High Court held that since these documents were D
available in the case diary, they could be exhibited under Section 91
CrPC. Accepting the plea of the prosecution and the appellant, the Single
Judge set aside the trial court’s order which had dismissed the application
seeking the summoning of the documents and the trial court was directed
to pass a consequential order on the application.
E
13. It is however the other judgment of the High Court dated
8 April 2022 in Misc. Criminal Case No. 57152 of 2021 mentioned earlier
which rejected the petition instituted by the appellant under Section 482
challenging the order of the trial judge dated 13 November 2021 dismissing
the second application which has been called into question in these
proceedings. F

14. We have heard Mr Ramakrishnan Viraraghavan, senior counsel
appearing on behalf of the appellant. Mr Shreeyash U Lalit, counsel for
the State of MP has supported the submissions in the appeal.
15. Mr SK Gangele, senior counsel appears on behalf of the second, G
third and sixth respondents while Ms Bansuri Swaraj, appears on behalf
of the fourth and fifth respondents.

7
MCrC No. 61600 of 2021
8
MCrC No. 51642 of 2021 H
158 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 16. The submission which has been urged by Mr Ramakrishnan
Viraraghavan, senior counsel on behalf of the appellant and by
Mr Shreeyash U Lalit , counsel for the State of MP are set out below:
(i) The production of the decoding register is crucial to establish
the co- relationship between the location of the accused and
B the cell phone tower;
(ii) The application was filed by the prosecution before the closure
of evidence and it was only after the rejection of the
application that the order dated 30 November 2022 of the
Second Additional Sessions Judge recorded that the evidence
C of the prosecution stood closed;
(iii) In any event, there was no bar in law to the filing of an
application under Section 311 even after the closure of
evidence;
(iv) The production of the decoding register was sought under
D the provisions of Section 91 CrPC which exists independent
of Section 207 CrPC; and
(v) There is no element of prejudice to the accused since the
enclosures to the supplementary charge-sheet specifically
refer to the certificates of the nodal officers of the cellular
E companies.
17. Mr SK Gangele, senior counsel appearing on behalf of the
second, third and sixth respondents has urged that:
(i) In view of the bar contained in Section 301 CrPC, it is not
open to the appellant who is the spouse of the deceased to
F
pursue these proceedings;
(ii) The nodal officers have already been examined on 7 May
2018, 17 July 2018 and 31 October 2019;
(iii) The locations have been mentioned by the witnesses; and
G (iv) All relevant documents are already on record.
18. Ms Bansuri Swaraj, counsel appearing on behalf of the
respondents four and five submitted that:
(i) Four applications were submitted by the prosecution under
Section 311 CrPC;
H
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 159
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

(ii) 53 witnesses have been examined; A
(iii) Final arguments at the trial are to be addressed on 25 July
2022;
(iv) In view of the decision of this Court in Swapan Kumar
Chatterjee v. Central Bureau of Investigation 9, an
application under Section 311 CrPC ought not be allowed B
where:
a. It is an abuse of the process of the Court; or
b. The prosecution‘s evidence was closed long back.
(v) The prosecution‘s evidence was closed long back; C
(vi) The reasons for non-examination of the witnesses earlier
are not satisfactory;
(vii) The accused had been denied bail and are in custody as
under trials for over 6.5 years; and
D
(viii) The right to a speedy trial is an integral component of Article
21 of the Constitution which mandates fairness to the accused.
19. Accordingly, it was urged that the nodal officers were examined
in 2017-2018, the CD has already been brought on record and the two
Courts having concurrently rejected the application under Section 311, E
the balance of justice must weigh in favour of the accused.
20. First, we deal with the objection of the respondents regarding
the bar in Section 301 of the CrPC on the basis of which it has been
argued that it is not open to the Appellant who is the spouse of the deceased
to pursue these proceedings. F
21. The respondents have relied upon the decisions in Shiv Kumar
v. Hukam Chand 10 and Dhariwal Industries Ltd. v. Kishore
Wadhwani11 to further their contention. However, both these cases deal
with this Court having declined private counsel to conduct a prosecution
instead of a Public Prosecutor in a sessions trial by relying upon the G
specific bar in Section 225 CrPC. Accordingly, these cases can be clearly
distinguished from the facts of the present case. In the present case,

9
(2019) 14 SCC 328
10
(1999) 7 SCC 467
11
(2016) 10 SCC 378 H
160 SUPREME COURT REPORTS [2022] 13 S.C.R.

A even the application under Section 311 in the sessions trial was moved
by the State and there is no question of the appellant wanting to replace
the public prosecutor in the trial.
22. On the other hand, in Mina Lalita Baruwa v. State of
Orissa12, the appellant was alleged to have been gang raped by the
B assailants who were arrayed as accused at the sessions trial. PW 18
was a Sub Divisional Judicial Magistrate before whom the Test
Identification Parade13 was held. PW 18 had recorded the proceedings
in the prescribed format and certain documents were marked as Ext.
The grievance of the appellant was that during the course of the
examination in chief, an incorrect version was spoken to by PW18 as an
C authorized officer who conducted the TIP. However, the prosecution
failed to confront him with the aforementioned Ext. 8 or to controvert
the incorrect statement in order to remove any source of ambiguity
which would otherwise prejudice the case of the prosecution. The
appellant approached the Special Public Prosecutor to set right the error
D of PW18 in his evidence and to confront him inter alia with a document
marked as Ext. 8.The public prosecutor not having taken any steps, the
appellant moved the trial judge with an application for recalling PW18.
The trial judge rejected the application on the ground of maintainability,
holding that such an application could not have been filed at the instance
of the victim. The High Court, placing reliance on the provisions of Section
E 301 CrPC observed that the informant had a limited role to play and it
was not open to her to file an application for recalling witnesses.
In this backdrop, this Court examined the provisions of Section
301. Section 301 is extracted below:

F 301. Appearance by Public Prosecutors.—(1) The Public
Prosecutor or Assistant Public Prosecutor in charge of a case
may appear and plead without any written authority before any
Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to
G prosecute any person in any Court, the Public Prosecutor or
Assistant Public Prosecutor in charge of the case shall conduct
the prosecution, and the pleader so instructed shall act therein
under the directions of the Public Prosecutor or Assistant Public

12
(2013) 16 SCC 173
H 13
‘‘TIP’’
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 161
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

Prosecutor, and may, with the permission of the Court, submit A
written arguments after the evidence is closed in the case.
23. The Court observed:
‘‘19. In criminal jurisprudence, while the offence is against the
society, it is the unfortunate victim who is the actual sufferer and
therefore, it is imperative for the State and the prosecution to B
ensure that no stone is left unturned. It is also the equal, if not
more, duty and responsibility of the court to be alive and alert in
the course of trial of a criminal case and ensure that the evidence
recorded in accordance with law reflect upon every bit of vital
information placed before it. It can also be said that in that process C
the court should be conscious of its responsibility and at times
when the prosecution either deliberately or inadvertently omit to
bring forth a notable piece of evidence or a conspicuous statement
of any witness with a view to either support or prejudice the case
of any party, should not hesitate to interject and prompt the
prosecution side to clarify the position or act on its own and get D
the record of proceedings straight. Neither the prosecution nor
the court should remain a silent spectator in such situations. Like
in the present case where there is a wrong statement made by a
witness contrary to his own record and the prosecution failed to
note the situation at that moment or later when it was brought to E
light and whereafter also the prosecution remained silent, the court
should have acted promptly and taken necessary steps to rectify
the situation appropriately. The whole scheme of the Code of
Criminal Procedure envisages fool proof system in dealing
with a crime alleged against the accused and thereby ensure
that the guilty does not escape and the innocent is not F
punished. It is with the above background, we feel that the
present issue involved in the case on hand should be dealt with.
(emphasis supplied)
24. The Court noted that while it is true that Section 301 places G
limitations on the right of the private person to participate in criminal
proceedings, nonetheless Section 311 empowers the trial court to summon
witnesses in order to arrive at a just decision. The court held in that
context:

H
162 SUPREME COURT REPORTS [2022] 13 S.C.R.

A ‘‘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 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
B
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
C 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.
25. Further, the Court while relying upon the earlier decisions in
D J.K. International v. State (Govt. of NCT of Delhi)14, Zahira
Habibulla H. Sheikh v. State of Gujarat15, Manu Sharma v. State
(NCT of Delhi) 16, Mohanlal Shamji Soni v. Union of India 17,
Rajendra Prasad v. Narcotic Cell18, noted:
‘‘31 …a criminal court cannot remain a silent spectator. It has got
E a participatory role to play and having been invested with enormous
powers under Section 311 CrPC, as well as Section 165 of the
Evidence Act, a trial court in a situation like the present one where
it was brought to the notice of the court that a flagrant contradiction
in the evidence of PW 18 who was a statutory authority and in
whose presence the test identification parade was held, who is
F also a Judicial Magistrate, ought to have risen to the occasion in
public interest and remedied the situation by invoking Section 311
CrPC, by recalling the said witness with further direction to the
Public Prosecutor for putting across the appropriate question or
court question to the said witness and thereby set right the glaring
G error accordingly. It is unfortunate to state that the trial court
miserably failed to come alive to the realities as to the nature of
14
(2001) 3 SCC 462
15
(2004) 4 SCC 158
16
(2010) 6 SCC 1
17
(1991) Supp (1) SCC 271
H 18
(1999) 6 SCC 110
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 163
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

evidence that was being recorded and miserably failed in its duty A
to note the serious flaw and error in the recording of evidence of
PW 18.
26. The objection which has been raised by the second, third and
sixth respondents on the basis of the provisions of Section 301 CrPC
lacks substance. Sub-section (1) of Section 301 stipulates that the Public B
Prosecutor or the Assistant Public Prosecutor in charge of a case may
appear without written authority before any court in which the case is
under inquiry, trial or appeal. Sub-section (2) of Section 301 postulates
that if any such case, any private person instructs a pleader to prosecute
any person in any court, the Public Prosecutor or Assistant Public
Prosecutor in charge of the case shall conduct the prosecution, and the C
pleader so instructed shall act under the directions of the Public Prosecutor
or Assistant Public Prosecutor, and may, with the permission of the Court,
submit written arguments after the evidence is closed in the case.
27. In the present case, the application for the summoning of witness
and for production of the decoding register was submitted by the State. D
Hence, the bar contained in Section 301 does not stand in the way.
28. Having clarified that the bar under Section 301 is inapplicable
and that the appellant is well placed to pursue this appeal, we now examine
Section 311 of CrPC. Section 311 provides that the Court ‘‘may’’:
E
(i) Summon any person as a witness or to examine any person
in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been
examined.
This power can be exercised at any stage of any inquiry, trial or F
other proceeding under the CrPC. The latter part of Section 311 states
that the Court ‘‘shall summon and examine or recall and re-examine
any such person if his evidence appears to the Court to be essential to
the just decision of the case’’. Section 311 contains a power upon the
Court in broad terms. The statutory provision must be read purposively,
G
to achieve the intent of the statute to aid in the discovery of truth.
29. The first part of the statutory provision which uses the
expression ‘‘may’’ postulates that the power can be exercised at any
stage of an inquiry, trial or other proceeding. The latter part of the
provision mandates the recall of a witness by the Court as it uses the
H
164 SUPREME COURT REPORTS [2022] 13 S.C.R.

A expression 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. Essentiality of the evidence of the person who is to be
examined coupled with the need for the just decision of the case constitute
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.
B
30. A two judge Bench of this Court in Mohanlal Shamji Soni
(supra) while dealing with pari materia provisions of Section 540 of the
Criminal Code of Procedure 1898 observed:
‘‘16. The second part of Section 540 as pointed out albeit imposes
C upon the court an obligation of summoning or recalling and re-
examining any witness and the only condition prescribed is that
the evidence sought to be obtained must be essential to the just
decision of the case. When any party to the proceedings points
out the desirability of some evidence being taken, then the court
has to exercise its power under this provision — either discretionary
D or mandatory — depending on the facts and circumstances of
each case, having in view that the most paramount principle
underlying this provision is to discover or to obtain proper proof of
relevant facts in order to meet the requirements of justice.’’
Justice S Ratnavel Pandian, speaking for the two judge Bench,
E noted that the power is couched in the widest possible terms and calls
for no limitation, either with regard to the stage at which it can be
exercised or the manner of its exercise. It is only circumscribed by the
principle that the ‘‘evidence to be obtained should appear to the court
essential to a just decision of the case by getting at the truth by all
F lawful means.’’ In that context the Court observed:
‘‘18 …Therefore, it should be borne in mind that the aid of the
section should be invoked only with the object of discovering
relevant facts or obtaining proper proof of such facts for a just
decision of the case and it must be used judicially and not
G capriciously or arbitrarily because any improper or capricious
exercise of the power may lead to undesirable results. Further it
is incumbent that due care should be taken by the court while
exercising the power under this section and it should not be used
for filling up the lacuna left by the prosecution or by the defence
or to the disadvantage of the accused or to cause serious prejudice
H
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 165
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

to the defence of the accused or to give an unfair advantage to A
the rival side and further the additional evidence should not be
received as a disguise for a retrial or to change the nature of the
case against either of the parties.
31. Summing up the position as it obtained from various decisions
of this Court, namely Rameshwar Dayal v. State of U.P.19, State of B
W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of
Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra
v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the
Court held:
‘‘27. The principle of law that emerges from the views expressed C
by this Court in the above decisions is that the criminal court has
ample power to summon any person as a witness or recall and re-
examine any such person even if the evidence on both sides is
closed and the jurisdiction of the court must obviously be dictated
by exigency of the situation, and fair play and good sense appear
to be the only safe guides and that only the requirements of justice D
command the examination of any person which would depend on
the facts and circumstances of each case.’’
32. The power of the court is not constrained by the closure of
evidence. Therefore, it is amply clear from the above discussion that the
broad powers under Section 311 are to be governed by the requirement E
of justice. The power must be exercised wherever the court finds that
any evidence is essential for the just decision of the case. The statutory
provision goes to emphasise that the court is not a hapless bystander in
the derailment of justice. Quite to the contrary, the court has a vital role
to discharge in ensuring that the cause of discovering truth as an aid in F
the realization of justice is manifest.
33. Section 91 CrPC empowers inter alia any Court to issue
summons to a person in whose possession or power a document or thing
is believed to be, where it considers the production of the said document
G
19
(1978) 2 SCC 518
20
(1963) Supp 1 SCR 1
21
(1967) 3 SCR 415
22
(1964) 8 SCR 133
23
(1966) 1 SCR 178
24
(1971) 1 SCC 523 H
166 SUPREME COURT REPORTS [2022] 13 S.C.R.

A or thing necessary or desirable for the purpose of any investigation,
inquiry, trial or other proceeding under the CrPC.
34. Section 91 forms part of Chapter VII of CrPC which is titled
‘‘Processes to Compel the Production of Things’’. Chapter XVI of the
CrPC titled ‘‘Commencement of Proceedings before Magistrates’’
B includes Section 207 which provides for the supply to the accused of a
copy of the police report and other documents in any case where the
proceeding has been instituted on a police report.25 Both operate in distinct
spheres.
35. In the present case, the application of the prosecution for the
C production of the decoding registers is relatable to the provisions of Section
91 CrPC. 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
D 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

E
25
Section 207 in The Code Of Criminal Procedure, 1973
207. Supply to the accused of copy of police report and other documents. In any case
where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
F (iii) the statements recorded under sub- section (3) of section 161 of all persons whom
the prosecution proposes to examine as its witnesses, excluding therefrom any part in
regard to which a request for such exclusion has been made by the police officer under
sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the
police report under sub- section (5) of section 173: Provided that the Magistrate may,
G after perusing any such part of a statement as is referred to in clause (iii) and considering
the reasons given by the police officer for the request, direct that a copy of that part of
the statement or of such portion thereof as the Magistrate thinks proper, shall be
furnished to the accused: Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) is voluminous, he shall, instead of furnishing the
accused with a copy thereof, direct that he will only be allowed to inspect it either
H personally or through pleader in Court.
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 167
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

of the document or thing is necessary or desirable for the purpose of any A
investigation, trial or other proceeding under the CrPC. As already noted
earlier, the power under Section 311 to summon a witness is conditioned
by the requirement that the evidence of the person who is sought to be
summoned appears to the Court to be essential to the just decision of the
case.
B
36. PWs 33, 41, 43 and 48, who were the nodal officers of Idea,
Airtel, Reliance and Vodafone have already been examined. During the
examination of PW-41, the nodal officer of Airtel, the witness specifically
deposed during the course of examination that:
‘‘2. Call detail of mobile number XXXXXXXXXX, which has 134 C
pages is Exhibit P-104, I sent the same detail of the call to the
police. Each page of the same has seal of Bharti Airtel on the
same. Call detail contains date and time wise detail of call and
short message services made/sent and received by the customer.
Additionally, location of the mobile number is available in
code number along with the time of the call or message for D
which call detail is provided. Location of the call made by
the mobile number in certain time has been shown with
codes, I cannot state name of the location today by seeing
the code. Location can be stated after decoding the same.
We have coding chart for location, by seeing the same E
location can be started. I don’t have aforesaid chart along
with me. Aforesaid chart is available in the office.
(emphasis supplied)
37. The relevance of the decoding register clearly emerges from
the above statement of PW-41. Hence, the effort of the prosecution to F
produce the decoding register which is a crucial and vital piece of evidence
ought not to have been obstructed. In terms of the provisions of Section
311, the summoning of the witness for the purpose of producing the
decoding register was essential for the just decision of the case.
38. Having dealt with the satisfaction of the requirements of Section G
311, we deal with the objection of the respondents that the application
should not be allowed as it will lead to filling in the lacunae of the
prosecution‘s case. However, even the said reason cannot be an absolute
bar to allowing an application under Section 311.
H
168 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 39. In the decision in Zahira Habibullah Sheikh (5) v. State of
Gujarat26, which was more recently reiterated in Godrej Pacific Tech.
Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with
this objection and 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
B
the test of the essentiality of the evidence. It noted that:
‘‘28. The court is not empowered under the provisions of the
Code to compel either the prosecution or the defence to examine
any particular witness or witnesses on their side. This must be
left to the parties. But in weighing the evidence, the court can
C take note of the fact that the best available evidence has not been
given, and can draw an adverse inference. The court will often
have to depend on intercepted allegations made by the parties, or
on inconclusive inference from facts elicited in the evidence. In
such cases, the court has to act under the second part of the
D section. Sometimes the examination of witnesses as directed
by the court may result in what is thought to be “filling of
loopholes”. That is purely a subsidiary factor and cannot
be taken into account. Whether the new evidence is essential
or not must of course depend on the facts of each case, and has
to be determined by the Presiding Judge.
E
(emphasis supplied)
40. The right of the accused to a fair trial is constitutionally
protected under Article 21. However, in Mina Lalita Baruwa (supra),
while reiterating Rajendra Prasad (supra), the Court observed that it is
F the duty of the criminal court to allow the prosecution to correct an error
in interest of justice. In Rajendra Prasad (supra), the Court had held
that:
‘‘8. Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case.
G The advantage of it should normally go to the accused in the trial
of the case, but an oversight in the management of the prosecution
cannot be treated as irreparable lacuna. No party in a trial can
be foreclosed from correcting errors. If proper evidence
26
(2006) 3 SCC 374
27
H (2008) 11 SCC 108
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 169
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

was not adduced or a relevant material was not brought on A
record due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be rectified.
After all, function of the criminal court is administration of criminal
justice and not to count errors committed by the parties or to find
out and declare who among the parties performed better.’’
B
(emphasis supplied)
In the present case, the importance of the decoding registers was
raised in the examination of PW-41. Accordingly, the decoding registers
merely being additional documents required to be able to appreciate the
existing evidence in form of the call details which are already on record C
but use codes to signify the location of accused, a crucial detail, which
can be decoded only through the decoding registers, the right of the
accused to a fair trial is not prejudiced. The production of the decoding
registers fits into the requirement of being relevant material which was
not brought on record due to inadvertence.
D
41. Finally, we also briefly deal with the objection of the
respondents regarding the stage at which the application under Section
311 was filed. The respondents have placed reliance on Swapan Kumar
(supra), a two judge Bench decision of this Court, to argue that the
application should not be allowed as it has been made at a belated stage.
The Court in Swapan Kumar (supra) observed: E

‘‘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 wide power under this Section to even recall F
witnesses for re-examination or further examination, necessary
in the interest of justice, but the same has to be exercised after
taking into 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 G
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.
H
170 SUPREME COURT REPORTS [2022] 13 S.C.R.

A Similarly, the court should not encourage the filing of successive
applications for recall of a witness under this provision.’’
In the present appeal, the argument that the application was filed
after the closure of the evidence of the prosecution is manifestly
erroneous. As already noted above, the closure of the evidence of the
B prosecution took place after the application for the production of the
decoding register and for summoning of the witness under Section 311
was dismissed. Though the dismissal of the application and the closure
of the prosecution evidence both took place on 13 November 2021, the
application by the prosecution had been filed on 15 March 2021 nearly
eight months earlier. As a matter of fact, another witness for the
C prosecution, Rajesh Kumar Singh, was also released after examination
and cross-examination on the same day as recorded in the order dated
13 November 2021 of the trial court.
42. 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
D re-examine any material witness at any stage and the closing of
prosecution evidence is not an absolute bar. This Court in Zahira
Habibulla H. Sheikh (supra) while dealing with the prayers for adducing
additional evidence under Section 391 CrPC at the appellate stage, along
with a prayer for examination of witnesses under Section 311 CrPC
E explained the role of the court, in the following terms:
‘‘43. The courts have to take a participatory role in a trial. They
are not expected to be tape recorders to record whatever is being
stated by the witnesses. Section 311 of the Code and Section 165
of the Evidence Act confer vast and wide powers on presiding
F officers of court to elicit all necessary materials by playing an
active role in the evidence- collecting process. They have to
monitor the proceedings in aid of justice in a manner that
something, which is not relevant, is not unnecessarily
brought into record. Even if the prosecutor is remiss in
some ways, it can control the proceedings effectively so
G that the ultimate objective i.e. truth is arrived at. This
becomes more necessary where the court has reasons to
believe that the prosecuting agency or the prosecutor is
not acting in the requisite manner. The court cannot afford
to be wishfully or pretend to be blissfully ignorant or
H oblivious to such serious pitfalls or dereliction of duty on
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 171
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

the part of the prosecuting agency. The prosecutor who does A
not act fairly and acts more like a counsel for the defence is a
liability to the fair judicial system, and courts could not also play
into the hands of such prosecuting agency showing indifference
or adopting an attitude of total aloofness.
(emphasis supplied) B
Further, in Zahira Habibullah Sheikh (5) (supra), the Court
reiterated the extent of powers under Section 311 and held that:
‘‘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 C
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 D
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 E
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 F
mind.
(emphasis supplied)
43. The Court while reiterating the principle enunciated in
Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section
311 which allows the power to be exercised at any stage and held that: G
‘‘44. The power of the court under Section 165 of the Evidence
Act is in a way complementary to its power under Section 311 of
the Code. The section consists of two parts i.e.: (i) giving a
discretion to the court to examine the witness at any stage, and
H
172 SUPREME COURT REPORTS [2022] 13 S.C.R.

A (ii) the mandatory portion which compels the court to examine a
witness if his evidence appears to be essential to the just decision
of the court. Though the discretion given to the court is very wide,
the very width requires a corresponding caution. In Mohanlal v.
Union of India this Court has observed, while considering the
scope and ambit of Section 311, that the very usage of the words
B
such as, ‘‘any court’’, ‘‘at any stage’’, or ‘‘any enquiry or trial or
other proceedings’’, ‘‘any person’’ and ‘‘any such person’’ clearly
spells out that the section has expressed in the widest- possible
terms and do not limit the discretion of the court in any way.
However, as noted above, the very width requires a corresponding
C caution that the discretionary powers should be invoked as the
exigencies of justice require and exercised judicially with
circumspection and consistently with the provisions of the Code.
The second part of the section does not allow any discretion
but obligates and binds the court to take necessary steps if
the fresh evidence to be obtained is essential to the just
D
decision of the case, “essential” to an active and alert mind
and not to one which is bent to abandon or abdicate. Object
of the section is to enable the court to arrive at the truth
irrespective of the fact that the prosecution or the defence
has failed to produce some evidence which is necessary for
E a just and proper disposal of the case. The power is exercised
and the evidence is examined neither to help the prosecution nor
the defence, if the court feels that there is necessity to act in
terms of Section 311 but only to subserve the cause of justice and
public interest. It is done with an object of getting the evidence in
aid of a just decision and to uphold the truth.
F
(emphasis supplied)
While reiterating the decisions of this Court in Karnel Singh v.
State of M.P.28, Paras Yadav v. State of Bihar29, Ram Bihari Yadav
v. State of Bihar30 and Amar Singh v. Balwinder Singh31 this Court
G held that the court may interfere even at the stage of appeal:

28
(1995) 5 SCC 518
29
(1999) 2 SCC 126
30
(1998) 4 SCC 517
H 31
(2003) 2 SCC 518
VARSHA GARG v. THE STATE OF MADHYA PRADESH & 173
ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

‘‘64. It is no doubt true that the accused persons have been A
acquitted by the trial court and the acquittal has been upheld, but
if the acquittal is unmerited and based on tainted evidence, tailored
investigation, unprincipled prosecutor and perfunctory trial and
evidence of threatened/terrorised witnesses, it is no acquittal in
the eye of the law and no sanctity or credibility can be attached
B
and given to the so- called findings. It seems to be nothing but a
travesty of truth, fraud on the legal process and the resultant
decisions of courts — coram non judis and non est. There is,
therefore, every justification to call for interference in these appeals.
44. For the above reasons, we have come to the conclusion that
the decision of the High Court which is impugned in the appeal is C
unsustainable. We accordingly allow the appeal and set aside the
impugned judgment and order of the High Court dated 8 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 13 November 2021 in Sessions Trial 227 of 2016 dismissing the D
application filed by the prosecution. 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
is allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar,
District Indore is directed to conclude Sessions Trial No. 227 of 2016 by
31 October 2022. E

MA No. 1144 of 2022 in SLP (Crl.) No. 2239 of 2022
45. The application has been filed on behalf of one of the accused
– Mangilal Thakur - who was granted interim bail on medical grounds
on 6 May 2022 in SLP (Crl.) No. 2239 of 2022 for a period of thirty days F
from the date of his release. In view of the continuing medical condition
of the accused, we deem it appropriate and proper to extend the interim
bail which was granted by order of this Court up to 31 October 2022
subject to the same terms and conditions.
46. Pending application(s), if any, stand disposed of. G

Ankit Gyan Appeal allowed.

H