Amin Khan vs State Nct Of Delhi And Anr
- Court
- Delhi High Court
$~82
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29.10.2026
%
# CNR No. DLHC010518242026
CRL.M.C. 8082/2026, CRL.M.A. 33849/2026
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AMIN KHAN .....Petitioner
Through: Mr. Dinesh Singh Bachgoti, Mr.
Kamlesh Kumar Verma, Mr. Rajesh
Kumar and Ms. Deepali Singh, Advs.
versus
STATE NCT OF DELHI AND ANR .....Respondents
Through: Ms. Priyanka Dalal, APP for State.
SI Shokindra
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
SACHIN DATTA, J. ( Oral )
CRL.M.A. 33850/2026 EX(FILING CERTIFIED COPY OF
STATEMENT & CROSS EXAMINATION)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
CRL.M.C. 8082/2026
3. The petitioner herein is facing trial in Sessions Case (SC) No.
406/2023, titled ‘ State v. Amin Khan ’, arising out of FIR No. 773/2023,
dated 26.10.2023, registered at P.S. Seema Puri, under Section 21 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).
4. By way of the present petition filed under Section 482 of the Code of
Criminal Procedure, 1973 (“CrPC”) [ pari materia to Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)], the petitioner assails
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the order dated 03.10.2026 (“impugned order”) passed by Ld. Special Judge
(NDPS), Shahdara District, Karkardooma Courts, Delhi, wherein the
application of the petitioner under Section 311 of the CrPC (corresponding
to Section 348 of the BNSS), seeking recall of PW-13 [Investigating Officer
(IO)] for further cross-examination, was dismissed.
5. It is the prosecution’s case that on 25.10.2023, a raiding party headed
by ASI Lokender Pal Singh apprehended the petitioner near LIC Colony
Road, Dilshad Garden, Delhi, and recovered 136.64 grams of heroin from
the petitioner’s possession. The FIR came to be registered on 26.10.2023 on
the basis of the rukka sent by ASI Lokender Pal Singh, and the investigation
was thereafter entrusted to SI Ajay Bhatt (IO/PW-13).
6. It is noticed that the IO was examined on 19.01.2026 and was later
cross-examined on the very same day. More than eight months thereafter,
when the matter was listed for final arguments on 03.10.2026, the petitioner
moved an application under Section 311 of the CrPC (corresponding to
Section 348 of the BNSS), seeking recall of PW-13 (IO) for further cross-
examination on various aspects, including raid, absence of public witnesses
and sampling and weight of the exhibits. It is also noticed that PW-13 (IO)
was not a part of the raiding party.
7. The petitioner’s application was dismissed by way of the impugned
order. The operative portion thereof reads as under:
“ 6. At the outset, it is worthwhile to mention that power of courts
to recall a witness u/s 311 Cr. PC (now u/s 348 BNSS) cannot be
used to fill up lacunae in the evidence on behalf of an accused.
This power is to be used in exceptional cases where the
circumstances warrant recalling of a witness for just decision of
the case .
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7. However, in the case in hand, circumstances are not such so as
to warrant recalling of IO at this stage when the matter is
otherwise fixed for final arguments . Perusal of record clearly
reveals that the present counsel Sh. Kamlesh Kumar Verma was
also the counsel of accused at the time of recording of evidence of
IO SI Ajay Bhatt/ PW-13 on 19.01.2026 and he was given ample
opportunity of cross-examining the IO then. In fact, he had cross
examined the IO as per his satisfaction on the said date and only
then PW-13/IO SI Ajay Bhatt was discharged by the Ld.
predecessor. It is apparent that after passing of 9 months or so
since the said PW was examined, the filing of application in hand
to recall the IO, is only an afterthought and is nothing but an
attempt to fill-up lacuna in the evidence of said witness
. In these
circumstances, the said application cannot be said to have been
filed for the purpose of just decision of the case by any stretch of
imagination.
8. Suffice it to state that no ground is made out for recalling PW
13/IO SI Ajay Bhatt for his further cross-examination and
accordingly, application stands dismissed. ”
(emphasis supplied)
8. Section 311 of the CrPC reads as under:
“ 311. Power to summon material witness, or examine person
present.— Any Court may, at any stage of any inquiry, trial or
other proceeding under this Code, 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
. ”
(emphasis supplied)
9. A bare perusal of Section 311 of the CrPC reveals that the powers
vested therein are couched in the widest terms; however, the pre-condition
for their exercise is that the evidence of the witness (sought to be recalled) is
essential to the just decision of the case. The Supreme Court has affirmed
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this position in Rajaram Prasad Yadav v. State of Bihar
, (2013) 14 SCC
461 , in the following terms:
“ 14. A conspicuous reading of Section 311 CrPC would show that
widest of the powers have been invested with the courts when it
comes to the question of summoning a witness or to recall or re-
examine any witness already examined. A reading of the
provision shows that the expression “any” has been used as a
prefix to “court”, “inquiry”, “trial”, “other proceeding”, “person
as a witness”, “person in attendance though not summoned as a
witness”, and “person already examined”. By using the said
expression “any” as a prefix to the various expressions mentioned
above, it is ultimately stated that all that was required to be
satisfied by the court was only in relation to such evidence that
appears to the court to be essential for the just decision of the case.
Section 138 of the Evidence Act, prescribed the order of
examination of a witness in the court. The order of re-examination
is also prescribed calling for such a witness so desired for such re-
examination. Therefore, a reading of Section 311 CrPC and Section
138 Evidence Act, insofar as it comes to the question of a criminal
trial, the order of re-examination at the desire of any person under
Section 138, will have to necessarily be in consonance with the
prescription contained in Section 311 CrPC. It is, therefore,
imperative that the invocation of Section 311 CrPC and its
application in a particular case can be ordered by the court, only
by bearing in mind the object and purport of the said provision,
namely, for achieving a just decision of the case as noted by us
earlier. The power vested under the said provision is made
available to any court at any stage in any inquiry or trial or other
proceeding initiated under the Code for the purpose of summoning
any person as a witness or for examining any person in attendance,
even though not summoned as witness or to recall or re-examine
any person already examined. Insofar as recalling and re-
examination of any person already examined is concerned, the
court must necessarily consider and ensure that such recall and
re-examination of any person, appears in the view of the court to
be essential for the just decision of the case. Therefore, the
paramount requirement is just decision and for that purpose the
essentiality of a person to be recalled and re-examined has to be
ascertained. To put it differently, while such a widest power is
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invested with the court, it is needless to state that exercise of such
power should be made judicially and also with extreme care and
caution.
”
(emphasis supplied)
10. The Supreme Court in Swapan Kumar Chatterjee v. CBI , (2019) 14
, has further elucidated upon the scope of the exercise of powers
SCC 328
under Section 311 of the CrPC in the following terms:
“ 11 . It is well settled that the power conferred under Section 311
should be invoked by the court only to meet the ends of justice.
The power is to be exercised only for strong and valid reasons and
it should be exercised with great caution and circumspection. The
court has vide power under this section to even recall witnesses for
re-examination or further examination, necessary in the interest of
justice, but the same has to be exercised after taking into
consideration the facts and circumstances of each case.
The power
under this provision shall not be exercised if the court is of the
view that the application has been filed as an abuse of the process
of law.
Where the prosecution evidence has been closed long back
and the reasons for non-examination of the witness earlier are
not satisfactory, the summoning of the witness at belated stage
would cause great prejudice to the accused and should not be
allowed.
12.
Similarly, the court should not encourage the filing of
successive applications for recall of a witness under this
provision. ”
(emphasis supplied)
11. The Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav ,
(2016) 2 SCC 402 , inter alia , observed as under:
“ 27. It is difficult to approve the view taken by the High Court.
Undoubtedly, fair trial is the objective and it is the duty of the court
to ensure such fairness. Width of power under Section 311 CrPC is
beyond any doubt. Not a single specific reason has been assigned
by the High Court as to how in the present case recall of as many
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as 13 witnesses was necessary as directed in the impugned order.
No fault has been found with the reasoning of the order of the trial
court. The High Court rejected on merits the only two reasons
pressed before it that the trial was hurried and the counsel was not
competent. In the face of rejecting these grounds, without
considering the hardship to the witnesses, undue delay in the trial,
and without any other cogent reason, allowing recall merely on the
observation that it is only the accused who will suffer by the delay
as he was in custody could, in the circumstances, be hardly
accepted as valid or serving the ends of justice. It is not only matter
of delay but also of harassment for the witnesses to be recalled
which could not be justified on the ground that the accused was in
custody and that he would only suffer by prolonging of the
proceedings. Certainly recall could be permitted if essential for the
just decision but not on such consideration as has been adopted in
the present case. Mere observation that recall was necessary “for
ensuring fair trial” is not enough unless there are tangible
reasons to show how the fair trial suffered without recall. Recall
is not a matter of course and the discretion given to the court has
to be exercised judiciously to prevent failure of justice and not
arbitrarily. While the party is even permitted to correct its bona
fide error and may be entitled to further opportunity even when
such opportunity may be sought without any fault on the part of
the opposite party, plea for recall for advancing justice has to be
bona fide and has to be balanced carefully with the other relevant
considerations including uncalled for hardship to the witnesses
and uncalled for delay in the trial.
Having regard to these
considerations, we do not find any ground to justify the recall of
witnesses already examined. ”
(emphasis supplied)
12. In State of Haryana v. Ram Mehar , (2016) 8 SCC 762 , the Supreme
Court held as under:
“ 39. There is a definite purpose in referring to the aforesaid
authorities. We are absolutely conscious about the factual matrix in
the said cases. The observations were made in the context where
examination-in-chief was deferred for quite a long time and the
procrastination ruled as the Monarch. Our reference to the said
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authorities should not be construed to mean that Section 311 CrPC
should not be allowed to have its full play. But, a prominent one,
the courts cannot ignore the factual score. Recalling of witnesses as
envisaged under the said statutory provision on the grounds that
accused persons are in custody, the prosecution was allowed to
recall some of its witnesses earlier, the counsel was ill and
magnanimity commands fairness should be shown, we are inclined
to think, are not acceptable in the obtaining factual matrix. The
decisions which have used the words that the court should be
magnanimous, needless to give special emphasis, did not mean to
convey individual generosity or magnanimity which is founded on
any kind of fanciful notion . It has to be applied on the basis of
judicially established and accepted principles. The approach may
be liberal but that does not necessarily mean “the liberal
approach” shall be the rule and all other parameters shall
become exceptions
. Recall of some witnesses by the prosecution at
one point of time, can never be ground to entertain a petition by the
defence though no acceptable ground is made out. It is not an
arithmetical distribution. This kind of reasoning can be dangerous.
40. In the case at hand, the prosecution had examined all the
witnesses. The statements of all the accused persons, that is, 148 in
number, had been recorded under Section 313 CrPC. The defence
had examined 15 witnesses.
The foundation for recall, as is
evincible from the applications filed, does not even remotely make
out a case that such recalling is necessary for just decision of the
case or to arrive at the truth. The singular ground which
prominently comes to surface is that the earlier counsel who was
engaged by the defence had not put some questions and failed to
put some questions and give certain suggestions. It has come on
record that number of lawyers were engaged by the defence. The
accused persons had engaged counsel of their choice. In such a
situation recalling of witnesses indubitably cannot form the
foundation. If it is accepted as a ground, there would be possibility
of a retrial.
There may be an occasion when such a ground may
weigh with the court, but definitely the instant case does not arouse
the judicial conscience within the established norms of Section 311
CrPC for exercise of such jurisdiction.
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42. At this juncture, we think it apt to state that the exercise of
power under Section 311 CrPC can be sought to be invoked either
by the prosecution or by the accused persons or by the Court
itself . The High Court has been moved by the ground that the
accused persons are in the custody and the concept of speedy trial
is not nullified and no prejudice is caused, and, therefore, the
principle of magnanimity should apply. Suffice it to say, a criminal
trial does not singularly centres around the accused. In it there is
involvement of the prosecution, the victim and the victim
represents the collective. The cry of the collective may not be
uttered in decibels which is physically audible in the court
premises, but the Court has to remain sensitive to such silent cries
and the agonies, for the society seeks justice. Therefore, a balance
has to be struck
. We have already explained the use of the words
“magnanimous approach” and how it should be understood.
Regard being had to the concept of balance, and weighing the
factual score on the scale of balance, we are of the convinced
opinion that the High Court has fallen into absolute error in axing
the order passed by the learned trial Judge. If we allow ourselves to
say, when the concept of fair trial is limitlessly stretched, having no
boundaries, the orders like the present one may fall in the arena of
sanctuary of errors. Hence, we reiterate the necessity of doctrine of
balance. ”
(emphasis supplied)
13. Upon considering the above dicta , it can be concluded that the powers
vested by Section 311 of the CrPC, albeit couched in the widest terms, have
to be exercised for securing the ends of justice. Accordingly, it is the duty of
the Courts to ensure that such applications do not become the vehicles of
abuse of the process of law and are not filed for oblique purposes, inter alia,
for protracting the trial or to embellish the evidence already adduced.
Recourse to Section 311 of the CrPC must not be allowed to become a
device for a party to improve their cross-examination, particularly when they
had ample opportunity to cross-examine the witness. Holding otherwise
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would be contrary to the observations made by the apex Court, particularly
in Ram Mehar (Supra) .
14. In the present case, the impugned order is right in concluding that
none of the grounds in the application are germane. The various aspects
sought to be raised in the application under Section 311 of the CrPC concern
the role of the raiding party. Concededly, PW-13 (IO) joined only after the
recovery was made by the raiding team led by ASI Lokender Pal Singh.
Insofar as the aspects relating to sampling, sealing, the weight of the sample
and its forwarding to the FSL are concerned, PW-13 (IO) had specifically
deposed thereto in his examination-in-chief on 19.01.2026. These aspects
were thus fully in the knowledge of the petitioner at the time of cross-
examination, which was nonetheless confined to the question of false
implication.
15. In any event, any infirmity in the prosecution evidence in this regard
can be urged by the petitioner at the stage of final arguments.
16. The learned trial court is right in observing that, in the factual
conspectus, the application under Section 311 of the CrPC was filed only to
fill up the lacunae in the evidence/cross-examination and the same,
therefore, cannot be permitted.
17. It also weighs with this Court that the application has been moved at
the stage of final arguments.
18. In the circumstances, the impugned order calls for no interference in
the exercise of jurisdiction under Section 482 of the CrPC ( pari materia to
Section 528 of the BNSS).
19. Accordingly, the present petition, along with pending application/s, if
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any, is dismissed.
20. Nothing stated herein shall be construed as an expression of opinion
on the merits of the case.
SACHIN DATTA, J
OCTOBER 29, 2026/ uk/vk
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