Bombay High Court
Pankaj Kumar Pushpam S/O Ramswaroop ... vs Central Bureau Of Investigation ... on 10 September, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.1312/2024
(Dr. Pankaj Kumar Pushpam S/o Ramswaroop Choudhary and another Vs. Central Bureau of Investigation,
through Superintendent of Police, Nagpur)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Ms. I.M. Katariya, Advocate with Mr. J.M. Gandhi, Advocate for the applicants.
Mr. P.K. Sathianathan, Special Public Prosecutor for the non-applicant.
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE ORDER: 4.9.2025.
DATE OF PRONOUNCING THE ORDER: 10.9.2025.
Being aggrieved by the order passed by the Special Judge, C.B.I., Nagpur rejecting the application for recalling of witnesses, the applicants have filed this application.
2. The applicants are prosecuted for the offence punishable under Section 12 of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code.
3. The trial was initiated.
4. It is the case of prosecution that the video clip is recorded during the course of trap. According to the applicants, it was not supplied to the applicants and, therefore, the applicants have applied for supply of the same by questioning the genuineness of said electronic record i.e. video recording of the trap. The applicants have applied to get the Hash Value of the memory stick. Hash Value data present in the memory stick was extracted on 19.7.2024 by the Expert with the help of valid licensed EnCase tool and the same is accordingly submitted by the Expert to the trial Court. Thereafter the applicants have moved an application on 6.8.2024 before the trial Court for recalling of prosecution witnesses for cross-examination by 2 apl1312.2024.odt contending that the Hash Value of video recording soon after it's recording was not brought on record and, therefore, it had become necessary and expedient for them to move an application for recalling of prosecution witnesses for cross-examination of P.W.1 Hemantkumar Kharabe and the complainant P.W.6 Investigating Officer Ramkrushna B. Das. The application of the applicants was rejected by the trial Court on 21.8.2024.
5. Learned Advocate for the applicants has submitted that video recording is not the original evidence. The tampering is there and, therefore, cross-examination on that issue of Investigating Officer and the complainant needs to be conducted by recalling said witnesses. Learned Advocate for the applicants has relied on the judgment of the Hon'ble Apex Court in case of State V/s. N. Seenivasagan reported in (2021) 14 SCC 1 wherein it is observed in para Nos.12 and 13 as under:-
"12. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court 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". The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.
13. In Manju Devi V/s. State of Rajasthan, a two-Judge Bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had 3 apl1312.2024.odt been pending for an inordinate amount of time (ten years there). Rather, it noted that: (SCC p.209, para 13) "13 ... the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness".
Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:
(Manju Devi Case, SCC pp.207-08, para 10) "10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:
(Natasha Singh Case, SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings"
under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it 4 apl1312.2024.odt was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." (emphasis in original)
6. Learned Advocate for the applicants has also relied on the judgment in the case of P. Sanjeeva Rao V/s. State of Andhra Pradesh reported in (2012) 7 SCC 56 in support of his argument that at any stage of trial, if it is necessary, the accused can recall the witness for cross-examination.
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7. Learned A.P.P. has submitted that the accused is referring to video clip which is in the memory stick of handycam and not any separately recorded video clip on any memory storage device like C.D. or V.C.D. etc. The video camera would be a record as defined under Section 65-B(1) of the Indian Evidence Act. Thus the Hash Value calculated is of the original. Hence, the submission of applicants that Hash Value of original source of said video recording is not on record is not correct. If any electronic record as defined in Section 65-B(1) of the Indian Evidence Act was produced on V.C.D., C.D. or Pen Drive then tallying Hash Value of such electronic record with original would be required but in the present case, it is not required as only memory stick is before the Court. In such an eventuality, no purpose would be served by recalling P.W.1 and P.W.6 for further cross-examination.
8. The custody of handycam was properly maintained and the memory stick was also identified by the witness concerned and exhibited by the trial Court. Hence, the contention made by the applicants is not correct. The burden is not on the accused to prove that the evidence of prosecution is not reliable. In such a situation, the reliability of video recording in memory stick as original is totally dependent on the entire case of the prosecution. Thus, there is no necessity to recall P.W.1 and P.W.6. Hence, the learned A.P.P. prayed to reject the application.
9. Heard both sides and perused the record.
10. The trial is pending since last 12 years. The statement under Section 313 of the Code of Criminal Procedure is also recorded. Thereafter, the applicants have filed this application for recalling of P.W.1 and P.W.6. It appears from the record that the application to 6 apl1312.2024.odt extract Hash Value was allowed. On 11.8.2023 the applicants have filed the application to provide the copy of audio and video and C.D. of recording generated during the trap proceeding which was allowed. Subsequently, the applicants have filed the application for referring the video recording to an Expert for checking its Hash Value. The Hash Value was extracted. Subsequently, the applicants have filed an application for recalling of the witnesses.
11. Learned A.P.P. pointed out that during cross-examination of P.W.1 and P.W.6 the suggestions were given by the learned Advocate for the applicants about genuineness of said recording. In para Nos.26, 29 and 31 of evidence of P.W.1 suggestions were given about genuineness of the video clip. Both the witnesses are already cross-examined on said issue. The opportunity was given to the applicants. It is the burden on the prosecution to prove the genuineness of said document. Hash Value is already brought on record. The power conferred under Section 311 is to be invoked by the Court for strong and valid reason and it should be exercised with great caution and circumspection. The witnesses are already cross-examined on said issue. Hence, there is no need to recall the witnesses at the fag end of the trial. Hence, the application is rejected. The trial Court is directed to complete the trial within a period of two months from the date of receipt of this order.
(MRS. VRUSHALI V. JOSHI, J.) Tambaskar.