Section 311 permits recall when a single unavoidable absence would permanently foreclose cross-examination of a material witness.

The petitioners challenged the Trial Court’s order dated 11 July 2025 dismissing their application under Section 311 Cr.P.C. to recall PW-3, Savitri Devi, for cross-examination.

PW-3’s examination-in-chief concluded on 4 April 2025, but she was discharged without cross-examination because petitioners’ counsel was held up in another court.

The petitioners submitted that the other prosecution witnesses had been cross-examined on the day of their testimony, that the lapse was confined to one date, and that PW-3 was a material witness.

They also stated that cross-examination of PW-1 remained pending.

1. Whether the Trial Court erred in refusing to recall PW-3 for cross-examination under Section 311 Cr.P.C.

2. Whether, in the circumstances, denying the petitioners an opportunity to cross-examine PW-3 would cause material prejudice and undermine a fair trial.

Section 311 Cr.P.C. empowers a court to summon, examine, or recall a witness where the evidence appears essential to the just decision of the case.

As explained in Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, that discretionary power must be exercised judiciously, for strong and valid reasons, with the object of discovering the truth and ensuring a fair trial; relevant evidence may be received to prevent a failure of justice, subject to appropriate safeguards.

The petition was brought under Section 528 BNSS.

The Court considered that PW-3 was not a formal witness and had been discharged without cross-examination, while the lapse was limited to a single date and the record disclosed no pattern of delay by the defence.

It held that permanently foreclosing cross-examination in those circumstances was inherently prejudicial.

That prejudice was especially significant because PW-1, described as the most material witness, also remained to be cross-examined; the need for an expeditious trial therefore had to be weighed against the petitioners’ right to test the evidence.

Applying the principles in Rajaram Prasad Yadav, the Court found that recalling PW-3 was warranted to secure a fair trial.

Upon proof of deposit being filed before the Trial Court, PW-3 is to be summoned for cross-examination.

The petitioners agreed not to seek an adjournment and to endeavour to complete the cross-examination on the date fixed.

The petition and pending application were disposed of, with no opinion expressed on the merits.