By the time the recall application was moved, 19 other prosecution witnesses had already been examined and the trial had substantially progressed. The trial has already been prolonged unduly, and the Court has a duty to ensure its expeditious conclusion. The trial in this case has been pending for over eight years.
16. Secondly, the principal ground urged in support of the
application under Section 311 CrPC is that certain facts arising
from the CDRs of the relevant mobile numbers could not be
brought on record during the earlier cross-examination due to
inadvertence. However, it is an admitted position that the said
CDRs were filed by the prosecution itself along with the chargesheet and formed part of the record throughout the course of the trial. The defence was thus aware of the said material and had adequate opportunity to examine the prosecutrix with reference thereto. The power under Section 311 CrPC cannot be exercised merely to fill up lacunae in the defence case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2848 OF 2026
THE STATE OF TRIPURA Vs PANNA AHMED
Author: SATISH CHANDRA SHARMA, J.
Citation: 2026 INSC 584.
Dated: May 26, 2026.
1. The present appeal arises out of the judgment and order
dated 14.03.2024 passed by the High Court of Tripura at Agartala
(hereinafter referred to as the “High Court”) in Criminal
Petition No. 07 of 2024, whereby the High Court set aside the
order dated 06.02.2024 passed by the learned Additional
Sessions Judge, West Tripura, Agartala (hereinafter referred to
as the “Trial Court”) in Sessions Trial (Type-1) No. 38 of 2017
and allowed the application filed under Section 311 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the
“CrPC”), permitting the recall of the prosecutrix (PW-1) for
further cross-examination.
2. The facts necessary for adjudication of the present appeal
are as follows:
2.1. On the basis of a written complaint dated
27.06.2016 lodged by the prosecutrix, FIR No. 2016
WAW 052 was registered against the Respondentaccused,
alleging commission of offences punishable
under Sections 342, 376(1) and 506 of the Indian Penal
Code, 1860 (hereinafter referred to as the “IPC”).
2.2. The allegation in the complaint is that on the
morning of 27.06.2016, after the husband of the
prosecutrix left for Sonamura Court in connection with his
professional work, she visited the residence of the
Respondent at about 10:30 a.m. for discussions relating to
house rent. It was alleged that the Respondent forcibly
confined her inside the room, tore her clothes and
committed rape upon her. It was further alleged that the
Respondent threatened to kill the prosecutrix if she
disclosed the incident to anyone. Thereafter, the
prosecutrix, in a distressed condition, returned to her
rented house and informed her husband about the incident.
2.3. Upon the registration of the FIR, investigation was
undertaken and statement of the prosecutrix was also
recorded under Section 164 CrPC. Thereafter, upon
completion of investigation, chargesheet was filed and
charges were framed on 09.08.2016. The trial commenced
in 2017.
2.4. During the course of trial, the prosecutrix (PW-1)
was first examined in chief and cross-examined on
04.06.2018, followed by further cross-examination on
10.07.2018. Thereafter, the prosecution filed an
application under Section 311 CrPC seeking recall and reexamination
of the prosecutrix. The said application
initially came to be rejected by the Trial Court. Aggrieved
thereby, the prosecution approached the High Court of
Tripura by filing Criminal Petition No. 02 of 2019. The
High Court, by judgment dated 30.05.2019, set aside the
order passed by the Trial Court and permitted reexamination
of the prosecutrix. Pursuant thereto,
prosecutrix was further examined and re-cross examined
on 08.08.2019 and 02.11.2019.
2.5. During the course of trial, and after approximately
four years from the re-examination of the prosecutrix (PW-
1), on 14.12.2023 the Respondent filed an application
under Section 311 of the CrPC seeking recall of PW-1 for
further cross-examination. The application set out 94
questions. The principal ground urged in the application
was that due to an oversight, certain aspects emerging from
the Call Detail Records (hereinafter referred to as
“CDRs”) of the mobile number of the prosecutrix and the
Respondent could not be brought on record.
2.6. The prosecution opposed the said application
contending that the prosecutrix had already been
extensively examined, cross-examined, re-examined and
re-cross-examined, and that the application was nothing
but an attempt to protract the proceedings in a case pending
since the year 2017.
2.7. The learned Additional Sessions Judge, by order
dated 06.02.2024, rejected the application filed by the
Respondent under Section 311 CrPC. The Trial Court
observed that the application is filed after 4 years from the
completion of the cross-examination of the prosecutrix and
that the trial had been pending for more than seven years,
that the prosecutrix had already undergone detailed
examination and cross-examination, and that no sufficient
ground existed for recalling the prosecutrix after such
prolonged delay. The Trial Court further held that the
application appeared to be an attempt to delay the
conclusion of the trial.
3. Aggrieved thereby, the Respondent approached the High
Court by filing Criminal Petition No. 07 of 2024 under Section
482 CrPC. The High Court, by the impugned judgment and order
dated 14.03.2024, allowed the petition, set aside the order of the
Trial Court, and directed that an opportunity be granted to the
Respondent to further examine PW-1, with reference to the call
detail records. The High Court observed that both the parties shall
cooperate to ensure speedy trial, since the matter pertains to
2016. Aggrieved thereby, the Appellant has approached this
Court.
4. Learned counsel appearing on behalf of the Appellant-
State submitted that the prosecutrix had already been examined
and extensively cross-examined on multiple occasions and that
the accused had been afforded ample opportunity to crossexamine
the prosecutrix. It was contended that the application
under Section 311 CrPC was filed after an unexplained delay of
more than four years and was merely an attempt to fill lacunae in
the defence case and prolong the trial. It was further submitted
that the Call Detail Records (CDRs), on the basis of which recall
was sought, had already been filed by the prosecution and were
always within the knowledge of the defence.
5. Per contra, learned counsel appearing on behalf of the
Respondent-accused submitted that the CDRs relied upon by the
defence were important as they allegedly reflected the frequency,
timing, and nature of telephonic contact between the prosecutrix
and the Respondent around the relevant period, which according
to the Respondent had a material bearing on the prosecution case.
It was contended that due to inadvertence, certain relevant
questions arising from the said CDRs could not be put to the
prosecutrix during her earlier cross-examination and therefore
further cross-examination was necessary for a just decision of the
case. It was further submitted that the power under Section 311
CrPC is intended to enable the Court to discover the truth and
ought to be exercised where the proposed examination is
essential for fair adjudication.
6. We have heard the learned counsels appearing for the
parties and perused the material placed on record.
7. Section 311 of the CrPC confers wide discretionary power
upon the Court. The said provision states that “any Court may, at
any stage of any inquiry, trial or other proceeding under this
Code, summon any person in attendance, though not summoned
as a witness, or recall and re-examine any person already
examined; and the Court shall summon and examine or re-call
and re-examine any such person if his evidence appears to it to
be essential to the just decision of the case.”
8. This Court has, through a consistent line of decisions,
expounded upon the nature, scope, and limits of the power
conferred by Section 311 CrPC.
9. This Court in Natasha Singh v. Central Bureau of
Investigation, (2013) 5 SCC 741, observed as under:
“15. The scope and object of the provision is to
enable the Court to determine the truth and to
render a just decision after discovering all relevant
facts and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or
arbitrarily, as any improper or capricious exercise
of such power may lead to undesirable results. An
application under Section 311 Cr.P.C. must not be
allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the
disadvantage of the accused, or to cause serious
prejudice to the defence of the accused, or to give
an unfair advantage to the opposite party. Further,
the additional evidence must not be received as a
disguise for retrial, or to change the nature of the
case against either of the parties. Such a power
must be exercised, provided that the evidence that
is likely to be tendered by a witness, is germane to
the issue involved. An opportunity of rebuttal
however, must be given to the other party ....”
10. The Supreme Court, in Swapan Kumar Chatterjee v.
Central Bureau of Investigation, (2019) 14 SCC 328, reiterated
that the power under Section 311 CrPC is to be exercised with
great caution and only for strong and valid reasons. It was
observed as under:
“11. It is well settled that the power conferred
under Section 311 should be invoked by the court
only to meet the ends of justice. The power is to be
exercised only for strong and valid reasons and it
should be exercised with great caution and
circumspection. The court has wide power under
this section to even recall witnesses for re-examination
or further examination, necessary in
the interest of justice, but the same has to be
exercised after taking into consideration the facts
and circumstances of each case. The power under
this provision shall not be exercised if the court is
of the view that the application has been filed as an
abuse of the process of law.”
11. Similarly, the Supreme Court in the case of Vijay Kumar
v. State of Uttar Pradesh & Anr., 2011 (8) SCC 136, observed
that,
“14. There is no manner of doubt that the power
under Section 311 of Code of Criminal Procedure
is a vast one. This power can be exercised at any
stage of the trial. Such a power should be exercised
provided the evidence which may be tendered by a
witness is germane to the issue involved, or if
proper evidence is not adduced or relevant material
is not brought on record due to any inadvertence. It
hardly needs to be emphasized that power under
Section 311 should be exercised for the just decision
of the case. The wide discretion conferred on the
court to summon a witness must be
exercised judicially, as wider the power, the greater
is the necessity for application of the judicial mind.
Whether to exercise the power or not would largely
depend upon the facts and circumstances of each
case. As is provided in the Section, power to
summon any person as a witness can be exercised if
the court forms an opinion that the examination of
such a witness is essential for the just decision of
the case.”
12. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr.,
(2016) 2 SCC 402, this Court further emphasised that recall of
witnesses cannot be permitted as a matter of course and that the
Court must balance the requirement of a fair trial with other
relevant considerations. It was observed:
“27. ….Certainly, recall could be permitted if
essential for the just decision, but not on such
consideration as has been adopted in the present
case. Mere observation that recall was necessary
“for ensuring fair trial” is not enough unless there
are tangible reasons to show how the fair trial
suffered without recall. Recall is not a matter of
course and the discretion given to the court has to
be exercised judiciously to prevent failure of justice
and not arbitrarily. While the party is even
permitted to correct its bona fide error and may be
entitled to further opportunity even when such
opportunity may be sought without any fault on the
part of the opposite party, plea for recall for
advancing justice has to be bona fide and has to be
balanced carefully with the other relevant
considerations including un-called for hardship to
the witnesses and un-called for delay in the trial.
Having regard to these considerations, we do not
find any ground to justify the recall of witnesses
already examined.”
13. Tested on the aforesaid principles, we are of the considered
view that the High Court was not justified in interfering with the
order passed by the Trial Court. The power conferred under
Section 311 of the CrPC is undoubtedly wide; however, such
power is required to be exercised sparingly and in judicious
manner, and not arbitrarily.
14. In the instant case, the record reveals that the prosecutrix
was first examined in chief and cross-examined on 04.06.2018.
Her cross-examination thereafter continued on 10.07.2018. The
proceedings further disclose that thereafter the prosecutrix was
again recalled, re-examined and re-cross-examined on
08.08.2019 and 02.11.2019. It is thus clear that the prosecutrix
was subjected to detailed and extensive cross-examination by the
defence across several hearings spread over a considerable period
of time. The Respondent got ample opportunity to examine the
prosecutrix and to test the veracity of her deposition.
15. Furthermore, the application under Section 311 CrPC
came to be filed on 14.12.2023, after an inordinate lapse of nearly
four years from the completion of the cross-examination of the
prosecutrix and approximately seven years after the registration
of the FIR. No satisfactory explanation has been offered for this
delay. The stage at which the application came to be filed is also
of considerable significance. By the time the recall application
was moved, 19 other prosecution witnesses had already been
examined and the trial had substantially progressed. The trial has already been prolonged unduly, and the Court has a duty to
ensure its expeditious conclusion. The trial in this case has been
pending for over eight years.
16. Secondly, the principal ground urged in support of the
application under Section 311 CrPC is that certain facts arising
from the CDRs of the relevant mobile numbers could not be
brought on record during the earlier cross-examination due to
inadvertence. However, it is an admitted position that the said
CDRs were filed by the prosecution itself along with the chargesheet
and formed part of the record throughout the course of the
trial. The defence was thus aware of the said material and had
adequate opportunity to examine the prosecutrix with reference
thereto. The power under Section 311 CrPC cannot be exercised
merely to fill up lacunae in the defence case.
17. Lastly, it is important to mention that the prosecutrix has
already been subjected to the ordeal of deposition and cross-examination on four separate occasions before the Trial Court, in
addition to having her statement recorded during investigation
and before the learned Magistrate under Section 164 CrPC.
Directing recall would inflict further and unjustifiable hardship
upon the prosecutrix. The witnesses cannot be expected to face
hardship of appearing in court repeatedly, particularly in
sensitive cases. It can result in undue hardship for the victims,
especially so, of heinous crimes, if they are required to repeatedly
appear in Court to face cross-examination.
18. In view of the foregoing discussion, we hold that the High
Court erred in setting aside the order of the Trial Court and
allowing the application under Section 311 CrPC.
19. Accordingly, the appeal is allowed. The impugned
judgement and order dated 14.03.2024 passed by the High Court
is set aside. The order dated 06.02.2024 passed by the Trial Court
in Sessions Trial (Type-1) No. 38 of 2017 is restored.
20. Pending application(s), if any, shall also stand disposed of.
21. The Trial Court, subject to its convenience, will conclude
the trial by the year end.
...…………………………………J.
[DIPANKAR DATTA]
...…………………………………J.
[SATISH CHANDRA SHARMA]
New Delhi
May 26, 2026.
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