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Application Under Section 311 Crpc Cannot Merely Be Dismissed On The Grounds Of It “Filling In Loopholes” Of The Prosecutions’ Case: Supreme Court

Shvena Neendoor ,
  10 August 2022       Share Bookmark

Court :
Supreme Court of India
Brief :

Citation :
Criminal Appeal No. 1021 of 2022

Case title:
Varsha Garg Vs State Of Madhya Pradesh

Date of Order:
8th August 2022

Justice DY Chandrachud and Justice AS Bopanna

Appellant- Varsha Garg
Respondent- State of Madhya Pradesh


The Supreme Court stated that an application under Section 311 CrPC cannot be denied only on the grounds that it will result in the prosecution's case having loopholes be filled in. According to the bench of Justices DY Chandrachud and AS Bopanna, the authority must be employed whenever the court believes that any evidence is necessary for the proper judgement of the matter and is not bound by the closing of evidence.

The case was regarding an advocate that was discovered brutally murdered outside his workplace. Five people were arrested. The Sessions Court denied a motion under Section 311 CrPC to call the nodal officials of specific cellular firms, as well as the decoding register, to locate the accused's mobile whereabouts.


Section 34, Indian Penal Code 1860- The section states that when multiple individuals do criminal conduct in furtherance of a common objective, each of them is accountable for that crime in the same way as if they did it alone.

Section 302, Indian Penal Code 1860- This section provides the punishment for the offence of murder, stating anyone who commits murder faces the death penalty or life imprisonment, as well as a fine.

65B of the Indian Evidence Act 1872- The section provides for the admissibility of electronic records. It states that any data contained in an electronic record that is printed onto paper, cached, recorded, or replicated in optical or magnetic media generated by a computer shall be deemed to be also a document, and shall be admissible in any hearing, without any further proof or production of the original, as evidence, if the requirements mentioned in this section are met.

Section 311, Code of Criminal Procedure- The section provides the authority to summon a material witness or to question a person who is present. It states that any Court may summon any individual as a witness or question any person in attendance who has not been summoned as a witness at any stage of any investigation, trial, or other procedure under this Code.

Section 91, Code of Criminal Procedure- Section 91 of the CrPC empowers any Court, among other things, to issue a summons to an individual whose possession or authority a document or thing is presumed to be, if the Court finds the production of the relevant document or thing essential or desirable for the purposes of any investigation, inquiry, trial, or other proceeding under the CrPC.


  • A single judge of the High Court of Madhya Pradesh's Indore Bench dismissed the case on April 8, 2022. The appeal questioned the legality of a decision issued by the Second Additional Sessions Judge on November 13, 2021, denying an application under Section 311 CrPC.
  • The appellant was the wife of a lawyer who was killed outside his workplace in November 2015. Following the homicide, an FIR was filed for an offence punishable under Section 302 read in conjunction with Section 34 of the Indian Penal Code 1860.
  • The inquiry was begun. The homicide was deemed to have been caused by a gunshot injury, according to the post-mortem report.
  • The supplementary charge-sheet included certificates from the nodal authorities of several cellular operators dated 11 January 2016. The nodal officials of Idea, Airtel, Reliance, and Vodafone were interrogated at the start of the trial's evidence recording.
  • The prosecution questioned the Station House Officer because he had submitted the additional charge-sheet and had generated a compact disc containing the co-phone accused's numbers. He further agreed that he had failed to file a certificate in respect to the CD, as required under Section 65B of the Indian Evidence Act 1872.
  • When the officer was instructed to provide the CD that was retained at the police station on the subsequent date of hearing, he did not do so. On behalf of the prosecution, an application was made under Section 311 to summon the decoding register.
  • The trial court denied the motion for the production of the decoding record on the grounds that: the document sought by the prosecution is not relevant to the investigation, and the document was not collected during the inquiry.
  • The trial judge also remarked that the prosecution's evidence was closed. The appellant brought this trial court ruling before the High Court, citing its authority under Section 482 CrPC.
  • The Single Judge of the High Court, in dismissing this petition, stated that A. the decoding registers were not part of the case record or the chargesheet; B. the prosecution had concluded its evidence; C. the application was filed at a late stage without gathering all essential facts


Whether the decision of the High Court in setting aside the application of the prosecution was valid?


  • It was submitted by the appellant that the production of the decoding register was critical in establishing the link between the accused's position and the mobile phone tower and the prosecution submitted the application prior to the closing of evidence, and it was only after the motion was denied that the order was recorded that the prosecution's evidence was closed.
  • It was argued that in any case, even after the evidence was closed, there was no legal impediment to making an application under Section 311.
  • It was further argued that there was no prejudice against the accused because the attachments to the additional charge sheet clearly relate to the certificates of the cellular carriers' nodal officials.


  • The counsel for the respondent submitted that due to the prohibition in Section 301 CrPC, the appellant, who is the deceased's spouse, cannot pursue these actions.
  • It was submitted that the nodal officials had already been interviewed, the witnesses identified the locations, and the necessary papers were already on file.
  • It was argued that the prosecution filed four applications under Section 311 CrPC and 53 witnesses were examined.
  • Placing reliance on the case of Swapan Kumar Chatterjee v. Central Bureau of Investigation [(2019) 14 SCC 328], it was stated that an application under Section 311 CrPC should not be accepted as A. it is an abuse of the Court's procedure and B. the prosecution's evidence was closed a long time ago.
  • Furthermore, the grounds for not questioning the witnesses sooner were argued to be insufficient
  • It was also submitted that the accused was refused bail and has been held in detention for over 6.5 years as part of ongoing proceedings; and the right to a quick trial is enshrined in Article 21 of the Constitution, which requires that the accused be treated fairly.


  • While Section 301 limits the ability of the private person to engage in criminal proceedings, the Court stated that Section 311 permits the trial court to summon witnesses in order to reach a reasonable conclusion.
  • The bench stated that the respondents' argument, which was based on Section 301 CrPC provisions, was devoid of substance. Section 301 provides that the Public Prosecutor may attend without written authorisation before any court where the case is being investigated, tried, or appealed. It also states that if a private individual instructs a pleader to indict any person in any court, the Prosecutor shall conduct the prosecution, and the pleader so commanded shall act under the direction of the Public Prosecutor or Assistant Public Prosecutor, and may, submit written arguments after the evidence in the case is closed.
  • It was held that the State filed an application for the calling of witnesses and the presentation of the decoding register in this instance. As a result, Section 301's prohibition does not apply.
  • In relation to Section 311, it was stated that the court's power is not limited by evidence closing. As a result of the preceding debate, it is abundantly obvious that the vast powers granted by Section 311 are to be controlled by the need for justice. The authority must be used if the court determines that any evidence is necessary for a fair determination in the case.
  • It was stated that the prosecution's endeavour to provide the decoding register, which is a critical and significant piece of evidence, should not have been hampered. According to Section 311, calling the witness for the purpose of presenting the decoding record was necessary for a just determination in the case.
  • Furthermore, relying on the cases of Zahira Habibullah Sheikh v. State of Gujarat[(2006) 3 SCC 374] andGodrej Pacific Tech. Ltd. v. Computer Joint India Ltd [(2008) 11 SCC 108], the court held that the filling of loopholes as a consequence of approving an application under Section 311 is merely a secondary consideration, and the Court's decision on the application should be based solely on the essentiality of the evidentiary test.


The bench came to the conclusion that the High Court's ruling, which was challenged in the appeal, was unsustainable. As a result, it granted the appeal and dismissed the impugned High Court decision and order, as well as the order of the Second Additional Session Judge disposing of the prosecution's application. The prosecution's application for the provision of decoding registers and the summons of cellular company witnesses for that purpose was granted.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement

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