Madhya Pradesh High Court
Aarti Shukla vs The State Of Madhya Pradesh on 22 July, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
ON THE 22nd OF JULY, 2025
MISC. CRIMINAL CASE No. 26453 of 2025
AARTI SHUKLA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Neeraj Pathak - Advocate for the petitioner.
Shri K.S.Baghel - G.A for the respondent/State.
Reserved on : 08.07.2025
Pronounced on : 22.07.2025
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ORDER
The present petition under Section 482 of Cr.P.C/528 of BNSS has
been filed by the applicant, who is aggrieved by the order dated 05.05.2025
whereby an application moved by the applicant under Section 311 of Cr.P.C.
for recalling the witnesses namely P.W-1(prosecutrix), P.W-2(father of the
prosecutrix), P.W-4(mother of the prosecutrix) and P.W-7(Investigation
Officer) has been dismissed.
2. Learned counsel for the petitioner submits that although cross-
examination of aforesaid witnesses has been done but some important
questions are to be asked in the cross-examination. Earlier counsel has not
cross-examined these witnesses on material points. He further submitted that
applicant is 19 years old and she should be given opportunity to prove her
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innocence. Trial Court has wrongly rejected the application on the ground
that sufficient opportunity has been given and detailed cross examination has
been done therefore, in the interest of justice, all the above witnesses should
be recalled and opportunity should be given for re-cross examination.
3. On the other hand, Shri Baghel, learned counsel appearing for the
respondent/State opposes the submissions made by counsel for the petitioner
and submits that trial is virtually at the verge of its conclusion and in fact, all
the material witnesses have already been examined and statement of PW-1,
PW-2, PW-4 and P.W-7 got recorded long back and now at this stage, on the
ground that they have not been properly examined by the earlier counsel for
defence, the impugned order cannot be recalled and the trial Court has rightly
rejected the application because it cannot be made a ground for recalling the
witnesses and if the application is allowed, then this would frustrate the very
purpose of Section 311.
4. Heard learned counsel for the parties and perused the record.
5. The nature and scope of the power exercised by the Court under
Section 311 of Cr.P.C. was elaborately considered by the Apex Court in the
case of Ashutosh Pathak Vs. State of Uttar Pradesh and another 2025 SCC
OnLine SC 1341 wherein it is held as under:
311. Power to summon material witness, or examine 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
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evidence appears to it to be essential to the just decision of the case.'
14. In a decision of recent vintage viz. Satbir Singh v. State of
Haryana, 2023 SCC OnLine SC 1086 (penned by one of us, Ahsanuddin
Amanullah, J.), the Court surveyed the law on the subject. The relevant
part of the discussion therefrom is extracted hereunder:
'9. Section 311 of the Criminal Procedure Code, 1973
(hereinafter referred to as the "CrPC") has engaged this Court's attention
before. We will advert to a few decisions of recent vintage. While
overturning an order of the High Court allowing an application for recall
of a
witness, which was rejected by the trial Court, this Court held as under,
in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340:
'17. In order to enable the court to find out the truth and render a
just decision, the salutary provisions of Section 311 are enacted
whereunder any court by exercising its discretionary authority at any
stage of inquiry, trial or other proceeding can summon any person as
witness or examine any person in attendance though not summoned as a
witness or recall or re-examine any person already examined who are
expected to be able to throw light upon the matter in dispute. The object
of the provision as a whole is to do justice not only from the point of
view of the accused and the prosecution but also from the point of view
of an orderly society. This power is to be exercised only for strong and
valid reasons and it should be exercised with caution and
circumspection. Recall is not a matter of course and the
discretion given to the court has to be exercised judicially to prevent
failure of justice. Therefore, the reasons for exercising this power should
be spelt out in the order.
18. In Vijay Kumar v. State of U.P. [Vijay Kumar v. State of
U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S)
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240], this Court while explaining scope and ambit of Section 311 has
held as under : (SCC p. 141, para 17) "17. Though Section 311 confers
vast discretion upon the court and is expressed in the widest possible
terms, the discretionary power under the said section can be invoked
only for the ends of justice. Discretionary power should be exercised
consistently with the provisions of [CrPC] and the principles of criminal
law. The discretionary power conferred under Section 311 has to be
exercised judicially for reasons stated by the court and not arbitrarily or
capriciously."
19. In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira
Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2
SCC (Cri) 8], this Court has considered the concept underlying under
Section 311 as under : (SCC p. 392, para 27) "27. The object underlying
Section 311 of the Code is that there may not 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 of 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 the
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 any 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
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power the greater is the necessity for application of judicial mind."
20. In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of
Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri)
510], it was held thus : (SCC pp. 404g-405a) "... 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, there is no ground to justify the recall of
witnesses already examined."
21. The delay in filing the application is one of the important
factors which has to be explained in the application. In Umar
Mohammad v. State of Rajasthan [Umar Mohammad v. State of
Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244], this Court has
held as under : (SCC p. 719, para 38)
"38. Before parting, however, we may notice that a contention
has been raised by the learned counsel for the appellant that PW-1 who
was examined in Court on 5-7-1994 purported to have filed an
application on 1-5-1995 stating that five accused persons named therein
were innocent. An application filed by him purported to be under Section
311 of the Code of Criminal Procedure was rejected by the learned trial
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Judge by order dated 13-5-1995. A revision petition was filed
thereagainst and the High Court also rejected the said contention. It is
not a case where stricto sensu the provisions of Section 311 of the Code
of Criminal Procedure could have been invoked. The very fact that such
an application was got filed by PW 1 nine months after his deposition is
itself a pointer to the fact that he had been won over. It is absurd to
contend that he, after a period of four years and that too after his
examination-in-chief and cross-examination was complete, would file an
application on his own will and volition. The said application was,
therefore, rightly dismissed."'
10. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, this
Court emphasized that a discretionary power like Section 311, CrPC is to
enable the Court to keep the record straight and to clear any ambiguity
regarding the evidence, whilst also ensuring no prejudice is caused to
anyone. A note of caution was sounded in Swapan Kumar Chatterjee v.
Central Bureau of Investigation, (2019) 14 SCC 328 as under:
'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
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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 are 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.'
11. In Harendra Rai v. State of Bihar, 2023 SCC OnLine SC
1023, a 3-Judge Bench of this Court was of the opinion that Section 311,
CrPC should be invoked when '... it is essential for the just decision
of the case."
6. Likewise, the Supreme Court in case of Rajaram Prasad Yadav Vs.
State of Bihar and another (2013) 14 SCC 461 has considered the power
provided to the Court under Section 311 Cr.P.C. and laid down the criteria
under which the said power can be exercised. The observation of the
Supreme Court is as follows:-
"17. From a conspectus consideration of the above
decisions, while dealing with an application under Section 311
CrPC 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
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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 CrPC should ensure that the judgment should not be
rendered on inchoate, inconclusive and 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 CrPC
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."
7. Likewise, in the case of Soneram Rathore Vs. State of M.P.,
reported in 2015(2) MPLJ (Cri) 68, it has been held that in a case where
application for recalling of prosecution witness had been filed on the ground
that earlier counsel has not cross-examined witness properly and had not put
some material questions cannot be ground to recall the witnesses already
examined. Such application cannot be allowed for mere asking reasons and
for reasons related to mere convenience. The Hon'ble Supreme Court in case
o f State (NCT of Delhi) Vs. Shiv Kumar Yadav and another, reported in
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2016(3) MPLJ (Cri.) SC 271 has held that discretion given to Court for
recalling of witness has to be exercised judiciously to prevent failure of
justice and not arbitrarily. Mere observation that recall was necessary for
ensuring fair trial is not enough unless there are tangible reasons to show
how fair trial suffered without recall.
8. From perusal of the impugned order, it is clear that witnesses PW-1,
PW-2, PW-4 and P.W-7 were examined and cross-examined. It is apparent
that they have given reply to all the questions put to them.
9. It is settled position of law that help of Section 311 of Cr.P.C.
cannot be given to accused to fill up the lacunas. Mere submission that some
questions could not be put or proper suggestions could not be offered to the
witness in cross- examination, cannot be a ground to recall the witness who
has already been examined and cross-examine fully. As far the provisions of
Section 311 of Cr.P.C./348 of BNSS, 2023 are concerned, same can be
invoked only in order to meet the ends of justice for strong and valid
reasons, with great caution and circumspection and not to permit accused to
harass the prosecution witness by permitting him to call him again and again
for cross- examination.
10. Considering the aforesaid so also the view taken by the Supreme
Court in case of State (NCT) of Delhi Vs. Shiv Kumar Yadav and another
(2016) 2 SCC 402, wherein it has been observed as to under what
circumstances, witnesses can be recalled by exercising the power provided
under Section 311 of Cr.P.C., I am of the opinion that mere
incompetence/change of counsel cannot be a ground for recalling the
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witnesses. More so, it has also been observed by the Supreme Court that
recall is not a matter of course and discretion given to the Court in this regard
has to be exercised judiciously to prevent failure of justice. Under the
circumstances existing in the present case, I am not impressed with the
submissions so advanced by learned counsel for the petitioner for recalling
the witnesses, the impugned order passed by the trial Court cannot be
interfered with.
11. In view of the aforesaid discussion, the petition, being sans merit,
is hereby dismissed.
(PRAMOD KUMAR AGRAWAL)
JUDGE
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