Accused Cannot Recall Prosecutrix Under Section 311 CrPC Simply to Rectify Ineffective Cross-Examination by Previous Counsel

The applicant is facing trial for offences under Sections 376 and 376(2)(n) of the Indian Penal Code.

During the trial, the prosecutrix (PW/1) was examined and cross-examined. The applicant subsequently filed an application under Section 311 of the Code of Criminal Procedure (CrPC), corresponding to Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), seeking to recall the prosecutrix.

The applicant contended that his previous counsel failed to cross-examine her effectively on material aspects regarding a consensual relationship and failed to confront her with previous statements recorded under Sections 161 and 164 of the CrPC.

The Trial Court rejected the application on 11.08.2025, stating that the witness had already been extensively cross-examined and cannot be recalled merely due to a change in counsel’s strategy.

1. Whether the Trial Court was justified in rejecting the application for recall of the prosecutrix under Section 311 CrPC/Section 348 BNSS on the grounds of ineffective prior cross-examination.

2. Whether the denial of recall violates the applicant’s right to a fair trial under Article 21 of the Constitution of India.

The court applied Section 311 of the CrPC (now Section 348 of the BNSS), which grants discretionary power to recall a witness if their evidence is essential to a just decision of the case.

Precedent regarding lapses of counsel (Rafiq v. Munshilal), Rajendra Prasad v. Narcotic Cell, and Mohanlal Shamji Soni v. Union of India, establish that while the power is wide, it cannot be used to fill lacunae in the defense.

The principle of balancing the rights of the accused with the dignity and protection of the prosecutrix.

The High Court observed that while Section 311 CrPC/348 BNSS is intended to arrive at the truth, it is not a tool to reopen a case whenever a different line of cross-examination is conceived.

The Court found that the Trial Court recorded a categorical finding that PW/1 had been cross-examined at length on all relevant aspects.

It reasoned that an accused cannot claim a right to recall a witness simply because the previous counsel did not conduct the defense in a "desired" manner, as this would lead to endless trials and harassment of witnesses.

The Court further noted that the applicant failed to point out any specific, indispensable omission that would result in a miscarriage of justice, characterizing the request as a mere attempt at re-appreciation or improvement of earlier testimony.

It concluded that recall of the prosecutrix was not essential for a just decision and that the application was rightly rejected to prevent undue harassment.

The petition was dismissed.