Discretionary Power to Recall Witnesses Under Section 311 CrPC Must Be Exercised to Prevent Failure of Justice.

In brief

The question

1. Whether the Trial Court was justified in rejecting the applications for recall of witnesses under the discretionary and mandatory pillars of Section 311 of the CrPC.

The court held

The High Court allowed the application, quashing the Trial Court’s order dated 16.12.2025

It also directed

It held that the evidence was essential for a fair trial and that the accused would suffer no prejudice as they maintain the right to cross-examine recalled witnesses

The Court ordered that the applications at Exhibit 89 and 90 be allowed, directing the recall of the Medical Officer and the two witnesses for further examination and EXHIBITING of the relevant documents

01Facts

The applicant, the original complainant, filed an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging an order dated 16.12.2025

p. 2

In a murder trial (Sessions Case No. 22/2023), the prosecution discovered inconsistencies between the testimony/medical certificate of Dr. Shweta Bathwar (PW-18) and the Station Diary entries regarding the timing and circumstances of the accused's medical treatment

pp. 2-3

statements of two material witnesses (PW-7 and PW-8) recorded under Section 164 of the CrPC were inadvertently not exhibited during their examination

p. 4

the prosecution moved applications (Exh. 89 and 90) under Section 311 of the CrPC to recall these witnesses and exhibit the documents, which the Trial Court rejected citing lack of satisfactory explanation for the delay

pp. 5-6

02Issues

i.1. Whether the Trial Court was justified in rejecting the applications for recall of witnesses under the discretionary and mandatory pillars of Section 311 of the CrPC.

pp. 10 / para. 8-9

03Law Applied

The Court applied Section 311 of the Code of Criminal Procedure (mirrored in BNSS), which grants the Court wide discretionary power to summon or recall witnesses at any stage, and mandates such action if the evidence appears "essential to the just decision of the case"

p. 11 / para. 9

It relied on Natasha Singh v. CBI (2013) to establish that the object is to discover the truth, provided it is not to fill an irreparable lacuna

p. 17 / para. 13

State (NCT of Delhi) v. Shiv Kumar Yadav (2016) to balance fair trial requirements with the prevention of failure of justice

p. 19 / para. 13

Provisions in the judgment · 5 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528

Code of Criminal Procedure, 1973 Section 164 Section 311

Indian Penal Code, 1860 Section 302

Gujarat Police Act, 1951. Section 135

04Reasoning

The Court reasoned that the MLC (Medico-Legal Case) papers and Section 164 statements were not mere "lacunae" but germane evidence essential for a just decision

p. 16, 19

It noted that the inconsistencies regarding whether the accused was "brought by police" or went to the hospital voluntarily (as per Station Diary Entry Nos. 22-24) went to the "root of the prosecution case"

p. 15 / para. 11.2

The Court held that inadvertence or negligence by a Public Prosecutor in failing to exhibit existing documents (like the 164 statements) should not penalize the pursuit of truth

p. 17 / para. 12

The Trial Court’s focus on the technicality of the stage of the trial was found to be a failure to exercise jurisdiction under the second (mandatory) part of Section 311

pp. 10-12

05Holding

The High Court allowed the application, quashing the Trial Court’s order dated 16.12.2025

p. 20 / para. 15

It held that the evidence was essential for a fair trial and that the accused would suffer no prejudice as they maintain the right to cross-examine recalled witnesses

p. 7, 20

p. 20

LawLens.Gujarat High Court

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