Trial court directed to take the Section 311 recall application on record and decide it according to law.

The petitioner invoked Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking a direction to the A.S.J. and Special Judge (Electricity Act), Gwalior, to take on record and decide his application under Section 348 BNSS, corresponding to Section 311 Cr.P.C., for recalling Dr. K.S. Parihar in S.T. No. 745/2014.

The criminal case arose from an incident dated 07 July 2014, in which the accused allegedly assaulted the complainant and several other persons with lathis, an iron pipe and a rifle. Crime No. 350/2014 was registered for offences under Sections 307, 452, 323, 294, 506-B and 34 of the IPC. The investigation was completed, a charge-sheet was filed, the prosecution evidence was recorded, and the defence evidence was closed.

A cross-case arising from the same incident was pending as S.T. No. 117/2015. In that case, Dr. K.S. Parihar was examined on 03 July 2026. The petitioner alleged that the doctor’s subsequent testimony regarding whether the injuries/fractures were fresh or approximately fifteen days old was inconsistent with his testimony in the present case. On that basis, the petitioner sought recall of the doctor for clarification.

The petitioner alleged that the Public Prosecutor declined to file the application on his behalf and that the Trial Court refused to take the application on record. He therefore approached the High Court seeking only a direction for the application to be received and decided in accordance with law, without seeking an automatic order recalling the witness.

1. Whether the Trial Court could be directed to take on record and decide the petitioner’s application under Section 311 Cr.P.C./Section 348 BNSS seeking recall of the medical witness, despite closure of the prosecution and defence evidence?

2. Whether the alleged subsequent contradictory statement of the medical witness in the connected cross-case justified consideration of the recall application in the interest of a fair trial?

The Court applied Section 528 BNSS, corresponding to Section 482 Cr.P.C., concerning the High Court’s inherent jurisdiction to secure the ends of justice and prevent abuse of the process of court.

It also considered Section 348 BNSS, corresponding to Section 311 Cr.P.C., which empowers the court at any stage of the proceeding to summon, examine, recall or re-examine a witness where the witness’s evidence appears essential to a just decision of the case.

The Court proceeded on the principle that fair trial is a right of both sides and that an application invoking the power to recall a material witness must be considered by the Trial Court on its merits; however, the provision cannot be treated as an automatic entitlement to recall or as a means of filling lacunae in evidence.

The High Court noted that the petitioner was not asking it to decide whether Dr. Parihar should actually be recalled, but only sought permission for the Trial Court to receive and adjudicate the application.

The alleged inconsistency concerned the age and nature of injuries, and arose from the same doctor’s later testimony in a connected cross-case relating to the same incident.

Although the State objected that the evidence had already been closed and that the application could cause delay or prejudice, the High Court held that the limited request to place the application on record did not require the High Court to prejudge its merits.

Since the application raised a matter potentially relevant to the appreciation of medical evidence and fair adjudication, the Trial Court ought to consider it in accordance with Section 311 Cr.P.C./Section 348 BNSS rather than refuse to receive it.

The High Court directed the A.S.J. and Special Judge (Electricity Act), Gwalior, to take on record the petitioner’s application under Section 311 Cr.P.C./Section 348 BNSS in S.T. No. 745/2014 and decide it in accordance with law as expeditiously as possible.

The Court expressly clarified that it had not expressed any opinion on the merits of the recall application or the merits of the criminal case.