Recall under Section 311 CrPC is impermissible to fill prosecution lacunae or rectify belated witness retractions.

The case arises from FIR No. 1310/2019 under Sections 302 and 201 of the IPC involving the murder of two individuals

During the trial, P.W.-3 (Rishipal Singh, father of the deceased) supported the prosecution in his examination-in-chief on 23.09.2021 but resiled and retracted his testimony during cross-examination on 28.07.2022

At that time, the prosecution did not declare the witness hostile or seek re-examination

Three years later, on 14.08.2025, the applicant (mother of the deceased) moved an application under Section 311 Cr.P.C. for the re-examination of P.W.-3, alleging he had deposed under coercion and threat

The Trial Court rejected this application on 10.11.2025, observing that the witness had previously confirmed his testimony was given without fear

The applicant challenged this rejection under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)

1. Whether the Trial Court’s rejection of the application under Section 311 Cr.P.C. for the re-examination of P.W.-3 was legally sustainable or arrived at in a mechanical manner

2. Whether the power to recall a witness under Section 311 Cr.P.C. can be exercised after a substantial delay to rectify discrepancies between examination-in-chief and cross-examination

3. Whether the alleged threat and coercion constituted a valid ground for re-examination in the absence of specific particulars or prior complaints

The Court primarily applied Section 311 of the Cr.P.C. (corresponding to Section 348 BNSS) regarding the power to summon material witnesses, and Section 138 of the Evidence Act regarding the order of examination

It relied heavily on the principles established in Raja Ram Prasad Yadav v. State of Bihar (2013), which dictate that while the power to recall is wide, it must be exercised judicially to ensure a "just decision" and not to fill a lacuna in the prosecution’s case or cause serious prejudice to the accused

The court further referenced Mohanal Shamji Soni v. Union of India and Iddar & Ors. v. Aabida & Anr. to emphasize that the determinative factor is the essentiality of the evidence for a just decision.

The Court observed that P.W.-3 had resiled from his statement in 2022, yet the prosecution failed to declare him hostile or seek immediate re-examination

The application for recall was filed after an inordinate delay of three years, which the Court interpreted as an attempt to "fill the lacuna" and "reconcile discrepancies" between the chief and cross-examinations

The Court noted that the applicant provided no specific details—such as date, time, or place—regarding the alleged threats and had remained silent for years without lodging complaints to the police or the Trial Judge

Applying the Raja Ram Prasad Yadav criteria, the Court reasoned that allowing re-examination at this belated stage would result in a "miscarriage of justice" and "serious prejudice" to the accused, as the move appeared to be a sponsored attempt by the witness to rectify previous testimony rather than a necessity for a just decision

The Court held that the power under Section 311 Cr.P.C. must be exercised with "care, caution and circumspection" and cannot be used as a disguise for a retrial or to change the nature of the case

The Court directed the Trial Court to proceed with and conclude the trial expeditiously in accordance with the law