Recall under Section 311 CrPC requires essential evidence; unavailable documents and prior cross-examination do not justify recall.

The prosecution arose from Income Tax Department searches conducted on 31 August 1995 at premises connected with Ashok Chawla and his associates. During a subsequent search of a garage at C-517, Defence Colony, classified Ministry of Defence documents were allegedly recovered, leading to registration of a CBI case under Section 120B of the IPC read with Section 3(1)(c) of the Official Secrets Act, 1923.

PW-15, Y.K. Batra, an Income Tax officer, had been examined and cross-examined regarding the authorization for the search at C-517, Defence Colony. During the later cross-examination of PW-3, it emerged that a Satisfaction Note had allegedly been prepared and routed through PW-15 before issuance of the first Authorization Warrant.

On that basis, the Trial Court initially directed production of the Satisfaction Note, Authorization Warrant and connected records under Section 91 CrPC.

After the Income Tax Department relied upon a prior Division Bench judgment concerning the validity of the same search proceedings, the Trial Court modified its earlier direction and declined further production of the documents by order dated 7 September 2022.

The Petitioner thereafter sought recall of PW-15 under Section 311 CrPC to confront him with the Satisfaction Note and question him about its alleged routing through him. The application was dismissed on 11 October 2023 because the Satisfaction Note was not part of the record and PW-15 had already undergone substantial cross-examination.

Whether the Trial Court was justified in modifying its earlier orders under Section 91 CrPC and declining production of the Satisfaction Note, Authorization Warrant and connected records?

Whether the Trial Court erred in refusing to recall PW-15 under Section 311 CrPC for further cross-examination concerning the Satisfaction Note and its alleged routing through him?

Section 91 CrPC permits production of documents only where their production is “necessary or desirable” for the investigation, inquiry or trial; this requirement must be assessed with reference to the stage and circumstances at which production is sought, as held in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

An order under Section 91 directing production is procedural and does not finally determine substantive rights; therefore, the Court may reassess the continuing necessity of production in light of subsequent or previously unnoticed material.

Under Section 311 CrPC, the power to recall a witness is broad but must be exercised where the proposed evidence is essential to the just decision of the case; recall is not automatic, as held in State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402.

The Court also considered the principles in Satbir Singh v. State of Haryana, 2023 INSC 786, Varsha Garg v. State of Madhya Pradesh, Criminal Appeal No. 1021/2022, and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, regarding essentiality of further evidence.

In relation to searches under Section 132 of the Income Tax Act, Principal Director of Income Tax (Investigation) v. Laljibhai Kanjibhai Mandalia, 2022 SCC OnLine SC 872, and Union of India v. M/s Agarwal Iron Industries, (2014) 15 SCC 215, recognise limited judicial scrutiny of the foundational reasons and authorization, but do not create a general right to disclosure or require repeated examination where the legality of the search has already been judicially considered.

The Court held that the earlier Section 91 orders were based on the Trial Court’s understanding that production was necessary to examine the legality of the search. That assessment changed after the Division Bench judgment dated 11 April 2017 was brought to its notice.

In that judgment, the validity of the warrant and search had been directly challenged, the foundational documents and file notings had been produced in sealed cover, and procedural objections concerning the C-517 search had also been considered and rejected.

Accordingly, the Trial Court’s order dated 7 September 2022 was not an impermissible review of a final adjudication but a reassessment of the continuing necessity of a procedural production direction under Section 91 CrPC.

The refusal to recall PW-15 was also justified. The specific purpose of recall was to confront him with the Satisfaction Note, but that document was not on the record and its production had already been declined.

Further, PW-15 had already been cross-examined on the source information, preliminary inquiry, authority for the search, C-517 premises, issuance of the authorization, interaction with PW-3 and the allegation that documents had been planted.

The subsequent statement of PW-3 therefore did not disclose an unresolved issue requiring recall that was essential to the just decision of the case.

It upheld the Trial Court’s decision dated 7 September 2022 declining further production of the Satisfaction Note, Authorization Warrant and Panchnama under Section 91 CrPC, and its decision dated 11 October 2023 refusing recall of PW-15 under Section 311 CrPC.

The petition under Section 482 CrPC was dismissed, pending applications were disposed of, and any interim order was vacated.

The Court clarified that its observations were confined to the petition and did not express any opinion on the merits of the criminal case.