The Supreme Court in Varsha Garg vs State of Madhya Pradesh an application under Section 311 CrPC cannot be dismissed merely on the ground that it will lead to filling in the loopholes of the prosecution's case. In fact, it was noted that the power must be exercised wherever the court finds that any evidence is essential for the just decision of the case and is not constrained by the closure of evidence.
The Court while examining the scope of Section 311 CrPC observed that:
"This power can be exercised at any stage of any inquiry, trial or 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, to achieve the intent of the statute to aid in the discovery of truth. 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 expression "shall" summon and examine or recall and reexamine 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.
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 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 the realization of justice is manifest.”
The Court also relied upon Zahira Habibullah Sheikh v/s State of Gujarat, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., 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 the test of the essentiality of the evidence.
Therefore, the Court concluded by observing the decision of the impugned decision of the High Court is unsustainable and directed the trial to be continued at the Sessions Court.