Witnesses may be recalled under Section 311 CrPC when essential to a just decision.

The applicant challenged the order passed below Exh.59 by the learned 15th Additional District Judge, Vadodara, in Sessions Case No.137 of 2022, whereby the prosecution was permitted to recall and re-examine witnesses already examined.

The prosecution sought to recall the witness examined at Exh.19 and the Investigating Officer examined at Exh.11, inter alia, to refer to a CD allegedly recording the occurrence, as well as the FIR, dying declaration, medical opinion regarding the deceased’s consciousness, and FSL report.

The prosecution case was that the deceased had married the witness against the wishes of the accused and was allegedly murdered by the applicant, described as the deceased’s maternal uncle, along with another accused.

The incident allegedly occurred on 15 September 2021, and the prosecution relied upon the CD as material evidence.

Although the Investigating Officer stated that the CD had been handed over by the witness, it had not been referred to during the witness’s earlier deposition.

The applicant contended that the prosecution evidence had already concluded and the application for recall was filed at the stage of final arguments as an afterthought, particularly after the defence questioned the evidentiary value of the CD and the absence of a certificate under Section 65B of the Indian Evidence Act.

The State opposed the application.

Whether the trial court was justified in exercising its power under Section 311 of the Code of Criminal Procedure, 1973, to recall and re-examine prosecution witnesses after conclusion of the evidence and at the stage of final arguments?

Whether the proposed re-examination of the witness and the Investigating Officer was essential for the just decision of the case, notwithstanding the applicant’s objection regarding delay and the evidentiary value of the CD?

The Court applied Section 311 of the Code of Criminal Procedure, 1973, which empowers a criminal court, at any stage of an inquiry or trial, to summon, examine, recall, or re-examine a person where such evidence appears essential to the just decision of the case.

The provision must be exercised judicially, for strong and valid reasons, and with caution and circumspection; recall is not a matter of course: Ratanlal v. Prahlad Jat, (2017) 9 SCC 340, and Vijay Kumar v. State of U.P., (2011) 8 SCC 136.

The object of Section 311 is to prevent failure of justice arising from the omission or mistake of either party in bringing material evidence on record, while ensuring application of judicial mind: Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

The power should not be exercised arbitrarily or merely on a general assertion of fair trial; the court must balance the need for justice against prejudice, delay, and hardship to the accused: State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402.

The Court also relied on Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711, Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328, and Harendra Rai v. State of Bihar, 2023 SCC OnLine SC 1023, reiterating that recall is permissible only where necessary for the just decision of the case and must not become an abuse of process.

The Court found that the CD allegedly recording the occurrence constituted material evidence, but it had not been referred to during the earlier evidence of the witness examined at Exh.19.

Similarly, several relevant documents—including the FIR, dying declaration, medical opinion, and FSL report—had not been referred to during the Investigating Officer’s evidence.

Applying the “essential for the just decision of the case” standard under Section 311, the Court held that recalling the witnesses would enable the prosecution to properly place the relevant evidence on record.

The Court further considered that the accused would retain the opportunity to cross-examine the witnesses and rebut the evidence, and therefore no irremediable prejudice would be caused by the recall.

The applicant’s objections concerning the timing of the application and the CD’s evidentiary value did not justify interference with the trial court’s procedural order at this stage; those objections could be addressed during cross-examination and final adjudication.

Since the accused would have full opportunity to cross-examine the witnesses and contest the evidence, no impermissible prejudice was established.

The Special Criminal Application was accordingly dismissed, and the order passed below Exh.59 by the trial court was left undisturbed.