The Supreme Court has held that although Section 311 CrPC gives the Court wide power to recall and re-examine witnesses at any stage, that power is not to be exercised mechanically or to cure omissions in a party’s case. Recall is permissible only where the proposed evidence is genuinely essential for the just decision of the case, and the Court must consider whether the request is bona fide, whether the party had prior opportunity, whether the application is attempting to fill lacunae, and whether allowing recall would cause undue delay or hardship to the witness.
On the facts of the case, since the prosecutrix had already been extensively examined, the defence had prior access to the call detail records, and the application was made after unexplained delay at an advanced stage of trial, the High Court erred in interfering with the Trial Court’s refusal to recall the prosecutrix. The Supreme Court accordingly set aside the High Court’s judgment, restored the Trial Court’s order, and directed that the trial be concluded by the end of the year, subject to the Trial Court’s convenience.
A Two-Judge Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma reiterated that Section 311 CrPC confers wide discretionary power on the Court to summon, recall, or re-examine a witness at any stage, but that power must be exercised judicially, cautiously, and only where the evidence appears essential to the just decision of the case.
Referring to earlier decisions including Natasha Singh v. CBI [(2013) 5 SCC 741], Swapan Kumar Chatterjee v. CBI [(2019) 14 SCC 328], Vijay Kumar v. State of Uttar Pradesh [2011 (8) SCC 136], the Bench emphasised that recall cannot be permitted as a matter of course, cannot be used to fill lacunae in the prosecution or defence case, and must be balanced against delay, prejudice, hardship to witnesses, and the overall progress of the trial.
The Bench found that the prosecutrix had already been examined, cross-examined, re-examined and re-cross-examined on four separate occasions over a considerable period, and the accused had ample opportunity to test her version. The Bench also noted that the recall application was filed after an inordinate delay of nearly four years from the completion of her cross-examination, at a stage when 19 other prosecution witnesses had already been examined and the trial, pending since 2016, had been unduly prolonged.
The Bench further observed that the call detail records relied upon by the accused had been filed by the prosecution itself along with the charge-sheet and were always part of the record, meaning the defence had adequate opportunity to use them earlier. The Bench finally stressed that compelling the prosecutrix to again face cross-examination in a sensitive criminal case would impose further unjustifiable hardship.
Briefly, the appeal arose from the High Court of Tripura’s order, by which the High Court set aside the Trial Court’s order and allowed an application under Section 311 CrPC filed by the accused for recall of the prosecutrix (PW-1) for further cross-examination. The FIR had been registered on June 27, 2016 on the prosecutrix’s complaint alleging offences under Sections 342, 376(1) and 506 IPC. After investigation, charge-sheet was filed, charges were framed on Aug 09, 2016, and trial commenced in 2017. The prosecutrix was examined and cross-examined in 2018, and after a prosecution application under Section 311 CrPC, she was again re-examined and re-cross-examined in 2019.
Thereafter, nearly four years later, the accused moved another application under Section 311 CrPC seeking her recall for further cross-examination on the basis that certain aspects arising from the call detail records had not earlier been put to her due to oversight. The Trial Court rejected that application, holding that the prosecutrix had already been extensively examined and that the recall request appeared to be an attempt to delay the trial, but the High Court allowed the accused’s petition under Section 482 CrPC and granted further opportunity to examine PW-1 with reference to the call detail records, leading to the appeal by the State.
