[Cites 5, Cited by 0]
Gauhati High Court
Page No.# 1/16 vs The State Of Assam And Anr on 18 December, 2025
Page No.# 1/16
GAHC010158262024
2025:GAU-AS:17598
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./942/2024
AMIT KUMAR MAHASETH
S/O SRI SHIVAJI MAHASETH
R/O LACHIT NAGAR,
HOUSE NO. 4/3,
BYE LANE NO. 4, SOUTH SARANIA HILL
P.O. ULUBARI
P.S. PALTAN BAZAR,
DIST. KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SRI SHIVNATH SHAH
S/O LT. SUKHDEO SHAH
R/O TARUN NAGAR
BYE LANE NO. 8
GUWAHATI
P.S. BHANGAGARH
DIST. KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. JYOTIRMOY ROY, MR. JAYANTA ROY,MR D DAS,MR. S
SARMA
Advocate for the Respondent : PP, ASSAM,
Page No.# 2/16
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER (CAV)
18.12.2025
Heard Mr. J. Roy, the learned Senior Counsel assisted by Mr. P.
Sharma, learned Counsel appearing for the Petitioner and Mr. P. S.
Lahkar, the learned Addl. PP for the State of Assam.
2. None appears on behalf of respondent No. 2 when the matter
was heard.
3. The instant application has been filed under Section 582 of BNSS,
2023 for setting aside of the impugned order dated 03.02.2024
passed by the learned Court of Addl. Sessions Judge No.1, Kamrup
(M), Guwahati in Sessions Case No.209/2018, whereby the learned
Addl. Sessions Judge No. 1, Kamrup (M) rejected the petition, vide
No.3177 dated 01.11.2023, filed by the Petitioner for recall and re-
examination of already cross-examined 3 (three) witnesses, namely,
PW. 1, Sri Shivnath Shah (Father of the deceased), PW. 2, Smt. Asha
Devi (Mother of the deceased) and PW. 3, Sri Ritesh Kumar (Brother
of the deceased).
4. It is the case of the Petitioner that the Petitioner had filed an
application under Section 311 Cr.P.C. before the learned Addl.
Sessions Judge No. 1, Kamrup (M), Guwahati for recalling and re-
examination of already cross-examined 3 (three) witnesses i.e. PW. 1,
PW. 2 and PW. 3 for interest of justice. It was the contention of the
Petitioner before the aforesaid learned Addl. Sessions Judge No. 1,
Kamrup (M), Guwahati that due to some inadvertent mistakes of the
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learned counsel appearing for the Petitioner earlier, the cross-
examination of the aforesaid 3 (three) PWs were not conducted in a
proper manner and there remained many vital questions to be asked
to the PWs in defence of his case. It was contended that the perusal
of records revealed that there were no suggestions put on behalf of
the Petitioner (accused) to the aforesaid 3 (three) witnesses. It was
also contended that no contradictions were made that with
statements recorded under Section 161 Cr.P.C. with the depositions
made by the 3 (three) witnesses before the learned Trial Court. It was
contended that some vital questions very much essential to the just
decision of the case were inadvertently not put to the aforesaid 3
(three) witnesses. Therefore, it was contended that since section 311
Cr.P.C. provides the power to any court at any stage of enquiry, trial
or other proceeding under the Cr.P.C. to recall or re-examine any
person already examined, in the instant case too, the aforesaid
learned counsel should have recalled and re-examined the 3 (three)
witnesses who were already examined and cross-examined before the
learned Trial Court for ends of justice and for the learned TrialCourt to
reach a just decision in the case.
5. It is the case of the Petitioner that the learned Addl. Sessions
Judge No. 1, Kamrup (M), Guwahati failed to appreciate that the
recalling of the aforesaid 3 (three) witnesses was crucial for
addressing substantial questions that were left out during the cross
examination of the aforesaid PWs.
6. The facts of the case involved in the instant case as narrated in
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the petition are summarized hereinbelow:-
(i)An FIR was lodged on 31.08.2013 alleging that his daughter Late
Aarti Kumari Shah had escaped from school with a boy named Amit
Kumar Mahaseth (Petitioner) and both got married on a later date as
per their rituals and custom. Though, they stayed happily for some
time but after some time of their marriage, the petitioner along with
his mother and other family members started demanding dowry and
also started torturing his daughter physically and mentally.
(ii) When the Informant came to know about those demand of dowry
as well as torture on his daughter, he shifted his daughter and son-in-
law (petitioner) to a different rented house. However, on 29.08.2013, it
was alleged that the petitioner in a drunken state along with the help
of other family members murdered his daughter. On 30.08.2013, the
petitioner informed him that his daughter met with an accident and
when the Informant along with other family members went to the
residence, they were shocked to find the daughter dead.
(iii) After completion of the investigation, the Investigating Authority of
the case has submitted the charge sheet dated 29.01.2014 under
Section 306 of the Indian Penal Code before the learned Chief Judicial
Magistrate, Kamrup (M). After submission of the charge sheet, charges
were framed and the petitioner was put to trial for the offences under
Section 306 of the Indian Penal Code.
(iv) During the trial, the prosecution had examined 3 (three) witnesses,
namely, PW. 1, Sri Shivnath Shah, PW. 2, Smt. Asha Devi and PW. 3,
Sri Ritesh Kumar who are the father, mother and brother of the
deceased girl. The cross examination of the aforesaid 3 (three)
witnesses were also completed by the learned counsel appearing for
the petitioner.
7. The learned Senior Counsel appearing for the Petitioner submits
that during the cross examination of PW. 1, PW. 2 and PW. 3, vital
questions were not put to the aforesaid PWs by the erstwhile Counsel
appearing for the Petitioner. He submits that no suggestions as such
to contradict the statements of the aforesaid PWs made by them
before the Police were made during the cross examination by the
counsel for rebutting the depositions made before the learned Trial
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Court. He submits that there are glaring contradictions in the
statements of the aforesaid PWs in their statements before the Police
viz-a-viz their depositions before the learned Trial Court, vital
questions were not put to the aforesaid PWs by the erstwhile Counsel
which may ultimately result in denial of a fair trial to the Petitioner.
8. The learned Senior Counsel appearing for the Petitioner submits
that while passing the impugned order dated 03.02.2024, the learned
Trial Court did not take into account the omission made by the
erstwhile Counsel appearing for the Petitioner to address the
substantial questions during the cross examination and thereby,
significantly prejudiced the defence of the Petitioner. He further
submits that recalling of the aforesaid 3 (three) witnesses for further
examination is crucial for elucidating the material facts which were
inadvertently omitted earlier during their cross examination. He
submits that these vital aspects of the matter were not taken into
consideration by the learned Trial Court while rejecting the petition of
the Petitioner under Section 311 Cr.P.C. filed before the learned Trial
Court.
9. The learned Senior Counsel submits that Section 311 of the
Cr.P.C. aims to widen the scope of witnesses in a criminal case. He
submits that it is a well settled law that object of Section 311 Cr.P.C.
is to remove the mistakes or possibility of doubt in a trial which could
lead to failure of justice. He submits that the power of Court to
summon witnesses incorporates the rule of natural justice. Therefore,
he submits that in instant case, rejecting of the petition of the
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Petitioner under Section 311 Cr.P.C., is totally unwarranted and
therefore, the order of such rejection by the learned Trial Court
should be set aside.
10. In support of his submission, the learned Senior Counsel has
referred to the following cases:
(i) Manju Devi-vs-State of Rajasthan and Another; reported
in (2019) 6 SCC 203;
(ii)Zahira Habibullah Sheikh and Another-vs-State of
Gujurat and Others; reported in (2006) 3 SCC 374;
(iii)Rajaram Prasad Yadav-vs-State of Bihar and Another;
reported in (2013) 14 SCC 461;
(iv) Natasha Singh-vs-Central Bureau of Investigation
(State); reported in (2013) 5 SCC 741; and.
(v)State of Meghalaya -vs- Shri Traiborlang Khongrymmai
(Crl. Pet. No.104 of 2023) decided by the Hon'ble High Court of
Meghalaya on 01.07.2024.
11. Mr. P. S. Lahkar, learned Addl. PP appearing for the State, on the
other hand, submits that there is no apparent error in the order
passed by the learned Addl. Sessions Judge No. 1, Kamrup (M),
Guwahati in his order dated 03.02.2024. He submits that the learned
Trial Court while rejecting the petition under Section 311 Cr.P.C. has
considered all the materials facts as have been stated in the petition
as well as the relevant Supreme Court Judgments while passing the
order. Therefore, there is no error committed by the learned Addl.
Sessions Judge No. 1, Kamrup (M), Guwahati in passing the
impugned order.
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12. It may be relevant herein to consider a vital fact i.e. that the
examinations and cross examinations of PW. 1 and PW. 2 were
completed on 28.03.2019 whereas the examination and cross
examination of PW. 3 was completed on 03.05.2019, whereas, the
application under Section 311 of Cr.P.C. was filed by the Petitioner on
01.11.2023, almost more than 4 years of examination and cross
examination of PWs.
13. This Court now would like to consider the cases that have been
referred by the learned Senior Counsel in his submissions made
before this Court.
14. In the case of Manju Devi (Supra), the fact of the case was
that the investigating authority did not cite a vital witness i.e. the
Doctor who had done the Post Mortem Examination of the dead body
in Nigeria. The Hon'ble Apex Court on the background of the facts
involved in the aforesaid case, had come to the conclusion that
examination of the aforesaid witness i.e. the Doctor is vital for the
Trial Court to come to a finding in the aforesaid trial. Therefore,
allowed the petitioner under Section 311 Cr.P.C. seeking for his
examination.
15. In the case of Zahira Habibullah Sheikh (Supra), the primary
issue involved was of providing an atmosphere conducive to a fair
trial, wherein, the appellant Zahira alleged the absence of an
atmosphere conducive to a fair trial and in the context of the
aforesaid fact, the Hon'ble Supreme Court while referring to the
object underlying Section 311 of the Code, held that there may not
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be failure of justice on account of mistake of either party in bringing
the valuable evidence on record or leaving ambiguity in the
statements of the witnesses examined from either side. The
determinative factor is whether it is essential to the just decision of
the case. The Section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of the
Court to summon a witness under the Section merely because the
evidence supports the case for the prosecution and not that of the
accused. The section is a general section which applies to all
proceedings, enquiries and trials under the Code and empowers
Magistrate to issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the significant expression
that occurs is "at any stage of inquiry or trial or other proceeding
under this Code". It is, however, to be borne in mind that whereas
the Section confers a very wide power on the Court on summoning
witnesses, the discretion conferred is to be exercised judiciously, as
the wider the power, the greater is the necessity for application of
judicial mind.
16. In the case of Rajaram Prasad Yadav (Supra), the Hon'ble
Apex Court while laying down the principles that has to be complied
with while considering an application under Section 311 Cr.P.C., has
affirmed the order of rejection of re-examination sought for a witness
who was earlier declared hostile under a petition under Section 311
Cr.P.C.
17. In the case of Natasha Singh (Supra), while discussing the
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scope of petition under Section 311 Cr.P.C., the Hon'ble Apex Court
discussed what is a fair trial under the Cr.P.C. and the scope of
Section 311 petition. The Hon'ble Apex Court has also held that while
considering a petition under Section 311 Cr.P.C., it is not correct for
the Court to reject the prayer of examination of witness on the
ground that evidence of that witness could not be conclusive. It was
held that only issue that has to be considered is whether the evidence
proposed to be adduced is relevant or not.
18. In the case of State of Meghalaya (Supra) though the facts
involved in the case viz-a-viz, the instant case in hand seems to be
similar, there is a thin line of difference between the facts involved in
the case before the Hon'ble Meghalaya High Court and in the instant
case. The contention under that case was that the erstwhile counsel
appearing for the Petitioner by not putting question on certain factual
aspect of the case to the relevant PWs, had committed error. But, in
that case, in addition to the fact that the erstwhile counsel was not
engaged by the Petitioner, the counsel was a legal aid counsel. In that
case, the trial Court had, in fact, allowed re-examination of a witness
coming to a conclusion that re-examination of the witness was very
much vital for necessary and just decision of the case. Taking into
account of the fact that the witness was not properly cross examined
by the legal aid counsel which was not a counsel of choice of the
Petitioner, the order of allowing prayer of the petitioner under Section
311 Cr.P.C. was, in fact, challenged before the High Court, wherein,
the High Court has affirmed the order of the learned Trial Court by
rejecting the criminal petition challenging the order of the learned
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Trial Court.
19. This Court has considered the cases referred by the learned
Senior Counsel and has discussed in reasonable details about the
ratios laid down in the aforementioned cases. While this Court is in
agreement with the ratios laid down in the aforementioned cases, is
of the considered view that the facts in the instant case is
distinguishable from the aforesaid cases and therefore, is not
agreeable that the aforesaid ratios will be relevant to the facts of the
instant case.
20. This Court has gone through the contentions and the grounds
that have been made in the application under Section 311 of the
Cr.P.C. filed by the Petitioner before the learned Trial Court. The crux
of the grounds that has been made out in that application is primarily
of that the erstwhile counsel involved in defence of the Petitioner
committed certain inadvertent mistakes in cross examining the PW. 1,
PW. 2 and PW. 3. It was contended that there were no suggestions
were given in the cross examination as well as certain vital questions
were not put to the aforesaid 3 (three) PWs in their cross
examination. However, it could not be made out as to what are those
vital questions.
21. On consideration of the application which was filed after a long
gap of more than 4 years, the learned Trial Court after hearing the
counsel appearing for both the sides, has rejected the application of
the Petitioner with a detail order dated 03.02.2024. The operative
portion of the aforesaid order being relevant is reproduced
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hereinbelow:-
"From the evidence of PWs- 1 to 3, it transpires that their evidence
are exhaustive on the issue involved in the case and they have
been thoroughly cross examined by the defence and nothing more
is required from those witnesses for just decision of the case in the
opinion of this Court. Further, engagement of the present set of
learned counsel by the defence newly cannot be a ground for
allowing the prayer under Section 311 Cr.P.C.. Hence, the prayer of
the petitioner does not satisfy the pre requisites for exercising the
power conferred u/s 311 Cr.P.C. and as such the prayer of the
petitioner does not deserve any consideration and accordingly, it is
rejected".
22. From the contents of the petition filed under Section 311 Cr.P.C.
filed by the Petitioner as well as from the impugned order dated
03.02.2024, it is clear that the thrust of submissions made on behalf
of the Petitioner in their petition under Section 311 Cr.P.C. to recall
the PW.1, PW.2 and PW.3 for their cross examination, is primarily that
their erstwhile counsel did not properly cross examine the witnesses.
23. In this connection, the case of Swapan Kumar Chatterjee
-vs-Central Bureau of Investigation; reported in (2019) 14 SCC
328 being relevant is discussed. In the aforesaid case, the Hon'ble
Apex Court while considering the scope of exercising power under
Section 311 of Cr.P.C. viz-a-viz the delay occurred in exercising the
said power has observed in the following manner:-
"9 Section 311 of the Code of Criminal Procedure, 1973 (for short
'the Code') provides for the power of the court to summon material
witness or examination person present. It reads as follows:
"311. Power to summon material witness, or examine
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person present--Any Court may, at any stage of any inquiry, trial
or other proceeding under this Code, summon any person as a
witness, or examine 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
recall and re-examine any such person if his evidence appears to it
to be essential to the just decision of the case".
"10. The first part of this Section which is permissive gives purely
discretionary authority to the criminal court and enables it at any
stage of inquiry, trial or other proceedings under the Code to act in
one of the three ways, namely,
(i) to summon any person as a witness; or
(ii) to examine any person in attendance, though not
summoned as a witness; or
(iii) to recall and re-examine any person already examined.
The second part, which is mandatory, imposes an obligation on the
court:
(i) to summon and examine or;
(ii) to recall and re-examine any such person if his
evidence appears to be essential to the just decision of
the case".
"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 vide 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".
"12. Where the prosecution evidence has been closed long back
and the reasons for non-examination of the witness earlier is not
satisfactory, the summoning of the witness at belated stage would
cause great prejudice to the accused and should not be allowed.
Similarly, the court should not encourage the filing of successive
applications for recall of a witness under this provision".
24. In a similar manner, the Hon'ble Apex Court in the case of
Rajaram Prasad Yadav (Supra) has elaborately discussed about
the scope of a petition under Section 311 Cr.P.C. and laid down the
criteria under which the said power could be exercised. The relevant
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observation of the Hon'ble Apex Court being relevant in the instant
case are extracted hereinbelow:-
"17.From a conspectus consideration of the above decisions, while dealing with an
application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act,
we feel the following principles will have to be borne in mind by the Courts:
17.1 Whether the Court is right in thinking that the new evidence is needed by
it? Whether the evidence sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
17.2 The exercise of the widest discretionary power under Section 311 Cr.P.C.
should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice
would be defeated.
17.3 If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and re-examine any such person.
17.4 The exercise of power under Section 311 Cr.P.C. should be resorted to only
with the object of finding out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the case.
17.5) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage of justice".
25. In this connection, the case of State (NCT of Delhi) -vs-Shiv
Kumar Yadav and Another being relevant is referred to herein. In this
case, at Pargraph-11 & 15, the Hon'ble Apex Court has held as under:-
"11. It is further well settled that fairness of trial has to be seen not only from
the point of view of the accused, but also from the point of view of the victim
and the society. In the name of fair trial, the system cannot be held to ransom.
The accused is entitled to be represented by a counsel of his choice, to be
provided all relevant documents, to cross-examine the prosecution witnesses
and to lead evidence in his defence. The object of provision for recall is to
reserve the power with the court to prevent any injustice in the conduct of the
trial at any stage. The power available with the court to prevent injustice has to
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be exercised only if the court, for valid reasons, feels that injustice is caused to
a party. Such a finding, with reasons, must be specifically recorded by the court
before the power is exercised. It is not possible to lay down precise situations
when such power can be exercised. The legislature in its wisdom has left the
power undefined. Thus, the scope of the power has to be considered from case
to case. The guidance for the purpose is available in several decisions relied
upon by the parties. It will be sufficient to refer to only some of the decisions
for the principles laid down which are relevant for this case".
"15. The above observations cannot be read as laying down any inflexible rule
to routinely permit a recall on the ground that cross-examination was not
proper for reasons attributable to a counsel. While advancement of justice
remains the prime object of law, it cannot be understood that recall can be
allowed for the asking or reasons related to mere convenience. It has normally
to be presumed that the counsel conducting a case is competent particularly
when a counsel is appointed by choice of a litigant. Taken to its logical end, the
principle that a retrial must follow on every change of a counsel, can have
serious consequences on conduct of trials and the criminal justice system. The
witnesses cannot be expected to face the hardship of appearing in court
repeatedly, particularly in sensitive cases such as the present one. 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".
26. Coming to the case in hand, it is already mentioned that examination
and cross-examination of PW. 1, 2 and 3 were completed a long time back
i.e. the early part of the year, 2019 and after lapse of about 4 1/2 years,
the Petitioner had filed the petition under Section 311 Cr.P.C. for recalling
of PW. 1, 2 and 3 for cross-examination. It is also seen by this Court that
in the application under Section 311 Cr.P.C. filed before the learned Trial
Court, the grounds mentioned were primarily failing in putting certain vital
questions as well as non-putting of any suggestions to contradict the
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depositions made by the aforesaid PWs due to the inadvertent
error/mistakes committed by the erstwhile counsel appearing for the
Petitioner. It is also seen from the examination-in-chief as well as cross-
examination of the aforesaid 3 (three) PWs are, in fact, exhaustive in
nature. It is further seen that while considering the petition under Section
311 Cr.P.C., the learned Addl. Sessions Judge No. 1, Kamrup (M) has
elaborately discussed about the contents of the petition under Section 311
Cr.P.C. and has come to a finding that examination and cross-examination
were exhaustive. The learned Addl. Sessions Judge No. 1, Kamrup (M) has
also came to a finding that engagement of a new counsel is not a factor in
the instant case to recall the aforesaid PWs for cross-examination.
27. This Court after consideration of the aforesaid materials before this
Court and on examination, has found that the examination and cross-
examination of 3 (three) PWs are, in fact, exhaustive in nature.
28. Taking into account the ratios laid down by the Hon'ble Apex Court in
the aforesaid cases of Swapan Kumar Chatterjee (Supra), Rajaram
Prasad Yadav (Supra) and Shiv Kumar Yadav (Supra), this Court is of
the considered view that in the instant case, there is no error committed
by the learned Additional Sessions Judge No. 1, Kamrup (M) in rejecting
the petition filed by the Petitioner under Section 311 of the Cr.P.C., vide it's
order dated 03.02.2024. This Court is of the view that recall is not a
matter of course and discretion given to the Court in this regard has to be
exercised judicially to prevent failure of justice. As mentioned above, a
bare perusal of the petition under Section 311 Cr.P.C., this Court finds that
other than some vague contentions, in addition to the contention that the
erstwhile counsel appearing for the Petitioner did not conduct proper
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cross-examination of the aforesaid 3 (three) PWs, no specific grounds as
such was made out by the Petitioner which could be termed to be valid
grounds for the Trial Court to invoke the power under Section 311 of the
Cr.P.C.
29. This Court has also prima facie seen that nothing on record which
suggests that non-summoning of the aforesaid 3 (three) PWs for further
cross-examination could cause grave prejudice to the Petitioner and that
such an action is, in fact, essential for just decision of the case. Therefore,
this Court has come to a finding that the impugned order dated
03.02.2024 does not suffer from any infirmity and accordingly, the instant
petition being devoid of merit, stands dismissed.
In view of the aforesaid directions, the instant petition is disposed of
as dismissed.
TCR be sent back, forthwith.
JUDGE
Comparing Assistant
