Gujarat High Court Affirms Summoning Of School Witness In POCSO Trial | Power Under Section 311 To Find Out The Truth | No Prejudice Caused To The Accused
Sanchayita Lahkar
The High Court of Gujarat Single Bench of Justice L. S. Pirzada held that the Trial Court rightly exercised its discretionary power under Section 311 of the Criminal Procedure Code to summon an additional witness for proving the age of the victim in a POCSO case. The Court directed that no interference is required in the impugned order allowing the application to summon the witness along with the school leaving certificate, as it was necessary for the just and proper adjudication of the matter. The revision application challenging the order was dismissed with confirmation of the Trial Court’s directions.
The matter arose from a revision application filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging an order dated 13.05.2025 passed by the Special Judge POCSO, Court No.9, City Civil and Sessions Court, Ahmedabad City. The original proceeding was a Special POCSO Case where an FIR had been registered at Vivekanandnagar Police Station for offences under Sections 376(D)(A) of the Indian Penal Code and Sections 5(J)(2), 6, 8, 9(L), 10, 16 and 17 of the Protection of Children from Sexual Offences Act.
At the stage of judgment pronouncement, an application vide Exhibit 154 was filed by the public prosecutor under Section 311 of the Criminal Procedure Code to summon a responsible person from Swaminarayan Vidhyadham, Hathijan, Ahmedabad, along with the school leaving certificate of the victim. The learned Special Judge allowed this application despite objections by the defence, who contended that the application was moved after conclusion of arguments solely to fill alleged lacunae in evidence.
The applicant contended that the prosecution had already produced two birth certificates of the victim, but cross-examination revealed they were not genuine as no entries were found in the birth register of Ahmedabad Municipal Corporation. It was argued that the prosecution was given sufficient opportunity to produce evidence and that invoking Section 311 after arguments closed amounted to filling gaps in the case. The defence argued that the impugned order was contrary to law and relied upon multiple authorities including 2024 SCC OnLine Guj 1119, (2001) 2 GLH 19, and (2013) 14 SCC 461, to assert that the power under Section 311 should not be used to remedy prosecution defects after closure of evidence.
Conversely, the prosecution submitted that the investigating officer had transparently collected the school leaving certificate during investigation and it formed part of the charge sheet. Due to inadvertence, it was not produced, and the application under Section 311 was filed to place it on record as age determination was crucial under the POCSO Act. It was further submitted that both disputed birth certificates recorded the birth date as 20.02.2005, matching the school record, and thus the issue was not whether the date differed but merely ensuring production of admissible documentary proof.
The prosecution relied upon judgments including Zahira Habibullah Sheikh v. State of Gujarat [(2006) 3 SCC 374 and (2004) 4 SCC 158], asserting the duty of courts to uncover the truth and exercise discretionary powers to summon material witnesses in the interest of justice.
The Trial Court, while allowing the application, recorded that the document was collected during investigation, was part of the charge sheet, and its production would not prejudice the defence as they had full right to cross-examine the witness. The matter had been adjourned repeatedly for pronouncement of judgment between February and May 2025 before the application under Section 311 was moved on 09.04.2025 and decided on 13.05.2025.
Justice L. S. Pirzada observed “Section 311 Cr.P.C. gives widest powers to summon or recall witnesses at any stage of inquiry, trial or other proceedings if their evidence appears essential to the just decision of the case.”
The Court stated “Plain reading of Section 311 makes it crystal clear that application can be given at any stage and power should be exercised if the evidence appears to be essential to the just decision of the case.”
It was further recorded “The Trial Court has rightly noted that the school leaving certificate is very essential evidence to prove age under the POCSO Act and the birth date is not disputed as it is reflected as 20.02.2005 in both birth certificates as well as the school leaving certificate.”
The High Court recorded “Allowing the application under Section 311 at the stage of pronouncement of judgment cannot be considered illegal where the objective is to find out the truth and avoid miscarriage of justice.”
Justice Pirzada stated “Principles laid down by Hon’ble Apex Court in Rajaram Prasad Yadav v. State of Bihar require that power under Section 311 should be exercised for finding out the truth or obtaining proper proof for facts essential to just and correct decision of the case.”
It was also observed “The court must satisfy itself that examination of such witness is essential to arrive at a just decision and exercise its power judiciously, not arbitrarily.”
The Court noted “If proper evidence was not adduced or relevant material not brought on record due to inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.”
Justice Pirzada further recorded “No prejudice is caused to the accused as he has full right to cross-examine the witness and challenge validity of the document.”
The judgment also quoted “Fair trial entails the interests of the accused, victim and society. Grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal as well as a human right.”
Finally, it was observed “The present revision application is devoid of merit and the findings of the learned Trial Court do not warrant any interference.”
The High Court directed that the revision application stands rejected. The order passed by the Special Judge POCSO, Court No.9, City Civil and Sessions Court, Ahmedabad City, in Special POCSO Case No.252 of 2021 allowing the application vide Exhibit 154 preferred by the prosecutor on 13.05.2025 is confirmed.
The Court ordered that the Trial Court is at liberty to proceed further in accordance with law for examining the summoned witness and taking on record the school leaving certificate to ascertain the age of the victim as required under the POCSO Act.
The judgment stated that rule is discharged and no costs are awarded.
Advocates Representing The Parties
For the Petitioners: Mr Anand Brahmbhatt, Mr Kishan N Brahmbhatt, Mr Nilesh S Brahmbhatt, Advocates
For the Respondents: Mr H K Patel, Additional Public Prosecutor
Case Title: XXX v Re State of Gujarat
Case Number: R/CR.RA/836/2025
Bench: Justice L. S. Pirzada
