[Cites 11, Cited by 0]
Madhya Pradesh High Court
Rajnish Kumar Patel vs The State Of Madhya Pradesh on 6 April, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
ON THE 6 th OF APRIL, 2026
MISC. CRIMINAL CASE No. 14487 of 2026
RAJNISH KUMAR PATEL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rahul Mishra - Advocate for petitioners.
Ms. Neetu Pashine - Panel Lawyer for the State.
ORDER
The petitioner has filed present petition under Section 528 of the
BNSS for quashing of order dated 17.12.2024 (Annexure-A/3) and order
dated 28.02.2026 (Annexure-P/5) passed by 17th Additional Sessions Judge,
Rewa District Rewa in S.T. No.215/2023, whereby right of cross
examination of prosecution witness PW-7 was closed and application to
recall the said witness for cross-examination has been dismissed.
2. The brief facts of the case are that on 28.07.2023, upon completion of
investigation, a final report was filed against the present petitioners for
offences punishable under Sections 498-A, 304-B, and 34 of the IPC as well
as Sections 3 & 4 of the Dowry Prohibition Act. Thereafter, the case was
committed to the Court of Sessions for trial. During the course of trial, the
prosecution witness, namely Smt. Shubhangana Singh appeared for her
deposition on 17.10.2024; however, the matter was adjourned to 23.11.2024.
On 23.11.2024, her examination-in-chief was recorded by the learned
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Sessions Court, but due to paucity of time, the matter was adjourned to
09.12.2024 for further proceedings. On 09.12.2024, PW-7 was present
before the Court; however, the counsel for the petitioners was engaged in
another court and, therefore, could not appear before the learned Sessions
Judge to conduct the cross-examination. Upon being relieved at about 4:45
PM, the counsel immediately appeared before the Court to cross-examine the
said witness, but by that time, the right of the petitioners to cross-examine
PW-7 had already been closed. Aggrieved by the order dated 17.12.2024, the
petitioners filed an application seeking recall of PW-7 for the purpose of
cross-examination; however, the said application came to be rejected by
order dated 28.02.2026.
3. Learned counsel for the petitioners submits that the trial Court has
committed a manifest error of law and procedure in denying the applicants
an opportunity to cross-examine PW-7. It is further submitted that the right
of cross-examination is a valuable and substantive right of the accused,
which cannot be curtailed on hyper-technical grounds. PW-7 being a material
witness, his cross-examination was essential for arriving at a just and proper
adjudication of the case; however, this aspect has not been duly considered
by the trial Court. It is further contended that cross-examination is the most
effective method to test the credibility, veracity, and reliability of a witness,
and denial thereof has caused grave prejudice to the petitioners. The
impugned order is stated to be contrary to the well-established legal maxim
audi alteram partem and also infringes the rights guaranteed under Article 21
of the Constitution of India. Learned counsel further submits that there was
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no lapse on the part of the applicants, as on the date when the right to cross-
examine was closed, their counsel was engaged in another court.
Immediately upon being relieved at about 4:45 PM, he appeared before the
trial Court; however, by that time, the right to cross-examine had already
been closed. It is thus contended that for a bona fide and unavoidable reason
attributable to counsel, the applicants ought not to be made to suffer. Due to
the unavailability of their counsel at the relevant time, the applicants also had
no opportunity to engage alternative counsel, a fact which has not been
appreciated by the court below. In view of the aforesaid submissions, it is
prayed that the present petition be allowed and the impugned orders be set
aside.
4. Learned Panel Lawyer for the State opposed the prayer made by
counsel for the petitioners and submitted that sufficient material has been
collected against the accused. He submits that the trial court, in its discretion,
closed the right of the petitioner to cross-examine the complainant after due
consideration of the circumstances. The petitioner, despite being granted
adequate time and opportunities, failed to cross-examine the complainant in a
timely manner. The delay on the part of the petitioner was not an isolated
incident but part of a broader pattern of procedural delay. He further submits
that it is well within the trial court's jurisdiction to close the right to cross-
examine a witness when there is a deliberate or repeated failure on the part of
the petitioner to actively participate in the proceedings. The trial court did
not err in exercising its discretion to close the right to cross-examine the
complainant, as it was acting in accordance with established principles of
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law. The petitioner has failed to demonstrate any exceptional circumstances
that would justify the recall of the complainant. The petitioner's delay in
filing the application and the lack of compelling reasons for recalling the
complainant do not meet the threshold required under Section 311 of Cr.P.C.
5. Heard the learned counsel for the parties.
6. The Hon'ble Apex Court in the case of Rajaram Prasad Yadav v. State of
Bihar, (2013) 14 SCC 461, has held as under : -
14. A conspicuous reading of Section 311 CrPC would
show that widest of the powers have been invested with
the courts when it comes to the question of summoning
a witness or to recall or re-examine any witness already
examined. A reading of the provision shows that the
expression "any" has been used as a prefix to "court",
"inquiry", "trial", "other proceeding", "person as a
witness", "person in attendance though not summoned
as a witness", and "person already examined". By using
the said expression "any" as a prefix to the various
expressions mentioned above, it is ultimately stated that
all that was required to be satisfied by the court was
only in relation to such evidence that appears to the
court to be essential for the just decision of the case.
Section 138 of the Evidence Act, prescribed the order of
examination of a witness in the court. The order of re-
examination is also prescribed calling for such a witness
so desired for such re-examination. Therefore, a reading
of Section 311 CrPC and Section 138 Evidence Act,
insofar as it comes to the question of a criminal trial, the
order of re-examination at the desire of any person
under Section 138, will have to necessarily be in
consonance with the prescription contained in Section
311 CrPC. It is, therefore, imperative that the invocation
of Section 311 CrPC and its application in a particular
case can be ordered by the court, only by bearing in
mind the object and purport of the said provision,
namely, for achieving a just decision of the case as
noted by us earlier. The power vested under the said
provision is made available to any court at any stage in
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any inquiry or trial or other proceeding initiated under
the Code for the purpose of summoning any person as a
witness or for examining any person in attendance, even
though not summoned as witness or to recall or re-
examine any person already examined. Insofar as
recalling and re-examination of any person already
examined is concerned, the court must necessarily
consider and ensure that such recall and re-examination
of any person, appears in the view of the court to be
essential for the just decision of the case. Therefore, the
paramount requirement is just decision and for that
purpose the essentiality of a person to be recalled and
re-examined has to be ascertained. To put it differently,
while such a widest power is invested with the court, it
is needless to state that exercise of such power should
be made judicially and also with extreme care and
caution.
7. Having considered the principle laid down by the Hon'ble Supreme Court
in the above referred case, this Court finds that :-
(i) The trial court has inherent powers to allow the
recall of witnesses in appropriate circumstances to meet
the ends of justice;
(ii) The refusal to allow the defence to recall the
witnesses may result in the denial of an opportunity to
fully present its case;
(iii) The interest of justice demands that every party
should have a fair chance to elicit necessary evidence
and to test the veracity of the witnesses' testimony.
8. The object of criminal trial is not to secure a conviction at any cost, but
to discover the truth. Procedural rules are handmaids of justice, and
technicalities cannot be permitted to override substantial justice, especially
when no serious prejudice would be caused to the prosecution by allowing
the defence to recall witnesses. This Court finds that denial of an opportunity
to the defence to recall the witness would amount to curtailing the right of
the accused to effectively defend himself, thereby causing miscarriage of
justice.
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9. In the considered opinion of this Court, permitting the defence to recall
the witnesses would serve the ends of justice, ensure a fair and balanced trial,
and would not prejudice the prosecution, provided such recall is regulated
and completed within a fixed time frame. The petitioner is having a right of
fair trial and he must be given an opportunity to cross-examine the witness
and proper opportunity should be given to prove his innocence.
10. The Hon'ble Apex Court in the case of Mrs. Kalyani Bhaskar Vs. Mrs.
M. S. Sampoornam (2007) 2 SC 258, has held that the appellant cannot be
convicted without an opportunity being given to him/her to present her
evidence and if it is denied to him/her, there is no fair trial. "Fair trial"
includes fair and proper opportunities allowed by law to prove his/her
innocence. Adducing evidence in support of the defence is a valuable right.
Denial of that right means denial of fair trial. It is essential that rules of
procedure designed to ensure justice should be scrupulously followed, and
the courts should be jealous in seeing that there is no breach of them.
11. The learned trial Court failed to consider the scope of under section
311 Cr.P.C./348 of BNSS and in the circumstances, this Court is of the
opinion that the ends of justice require that the petitioner/defence be
permitted to recall the prosecution witness i.e. PW-7 for cross examination
and, therefore, the impugned orders dated 17.12.2024 (Annexure-A/3) and
28.02.2026 (Annexure-A/5) passed in S.T. No. 215/2023 are deserves to be
set aside.
12. Accordingly, the petition is allowed under Section 482 CrPC. The
impugned orders dated 17.12.2024 and 28.02.2026 passed in S.T. No.
215/2023 are hereby set aside. The trial Court is directed to permit the
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petitioners to recall the proposed witness for further examination/cross
examination. The trial court shall complete the process of recall of witnesses
within a period of 30 days from the date of receipt of certified copy of this
order.
13. However, while allowing the petition in the interest of justice, this
Court deems it appropriate to impose the following stringent conditions to
ensure that the liberty granted is not misused and that the trial is concluded
expeditiously:
(a) The petitioners/accused shall not seek any adjournment on the date
fixed for recall and examination/cross-examination of the witness.
(b) The petitioners shall ensure the presence of his counsel on the
scheduled date, and in the event of failure, the trial court shall be at liberty to
close the opportunity of cross-examination without further reference to this
Court.
(c) The recall and examination/cross-examination of the witnesses
shall be restricted strictly to related aspects, and shall not be used to re-open
the entire trial.
(d) The petitioners shall complete the cross-examination of recalled
witness on the same day, unless prevented by reasons beyond control, to be
recorded by the trial court.
(e) The petitioners shall file an undertaking before the trial court that
no adjournment shall be sought and that the proceedings shall be completed
within the time stipulated.
(f) The trial court shall fix a specific date and time for recall of the
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witness and shall ensure that the entire exercise is completed within a
maximum period of 30 days from the date of recall.
(g) In the event of violation of any of the above conditions, the trial
court shall be at liberty to cancel the permission granted for recall and
proceed with the trial in accordance with law.
14. The Registry is directed to communicate a copy of this order to the trial
court immediately.
(HIMANSHU JOSHI)
JUDGE
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