[Cites 9, Cited by 0]
Uttarakhand High Court
C528/214/2026 on 10 March, 2026
2026:UHC:1539
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
C528 No. 214 of 2026
Hon'ble Alok Mahra, J.
Mr. Gulshan Pandey, Advocate for
the applicants.
Mrs. Pushpa Bhatt, Additional
Advocate General and Mr. S.C. Dumka,
A.G.A. for the State of Uttarakhand.
2. As per the applicants, respondent
no. 2lodged and F.I.R against the
applicants for offences punishable under
Sections 323, 354, 498-A, 504 and 506
I.P.C. read with Section 3/4 of the Dowry
Prohibition Act, 1961. Following
investigation, a chargesheet was filed.
Dissatisfied with their previous counsel,
the applicants appointed a new counsel,
who filed the application under Section
311 Cr.P.C. seeking re-examination of
PW-1 (the complainant) and PW-2
(complainant's father), described as
essential witnesses. The trial court
dismissed the application vide the
impugned order dated 18.12.2025,
prompting the present application.
3. Learned counsel for the applicants
submits that the applicants ought not to
suffer for the inadvertence of their
previous counsel in omitting vital
questions during cross-examination. He
contends that re-examination of PW-1
and PW-2 is essential for a fair trial and
just decision, emphasizing their
centrality to the prosecution case.
4. I have heard learned counsel for the
parties at length and perused the record,
including the impugned order and the
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trial court proceedings. The sole ground
taken by the applicants for recalling the
witnesses is the previous counsel's
failure to pose certain vital questions
during cross-examination. It is a settled
proposition of law that Section 311
Cr.P.C. cannot be invoked to fill lacunae
in the case of either party, whether
prosecution or defence. The provision
empowers the Court, at any stage of
inquiry, trial or proceedings, to summon
any person as a witness, or to recall and
re-examine any person already
examined, if their evidence appears
essential to the just decision of the case.
However, this power must be exercised
judiciously, not arbitrarily, and only to
discover relevant facts or obtain proper
proof thereof.
5. Hon'ble Supreme Court in the case
of Mohanlal Shamji Soni Vs. Union of
India, reported in AIR 1991 SC 1346, has
held that in order to enable the Court to
find out the truth and render a just
decision, the salutary provisions of
Section 311 Cr.P.C. are enacted where
under any Court by exercising its
discretionary authority at any stage of
enquiry, 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.
Opportunity of rebuttal shall be given to
other party. The aid of the section should
be invoked only with the object of
discovering relevant facts or obtaining
proper proof of such facts for a just
decision of the case and it must be used
judicially and not capriciously or
arbitrarily because any improper or
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capricious exercise of the power may
lead to undesirable results. It should not
be used for filling up the lacuna by the
prosecution or by 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 rival side and further the
additional evidence should not be
received as a disguise for a retrial or to
change the nature of the case against
either of the parties.
6. Applying the aforesaid precedent,
no exceptional circumstances warrant
interference with the impugned order.
The applicants' grievance stems purely
from their previous counsel's alleged
oversight, which does not constitute a
valid ground under Section 311 Cr.P.C.
Permitting recall would amount to filling
a defence lacuna, causing prejudice to
the prosecution and prolonging the trial
unnecessarily. The trial Court correctly
exercised its discretion, and no
perversity or illegality is discernible in
the impugned order. The application
lacks merit.
7. In the result, the Criminal
Miscellaneous Application is dismissed.
No order as to costs.
(Alok Mahra, J.)
10.03.2026
Arpan
ARPAN
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JAISWAL
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JAISWAL
Date: 2026.03.10 16:14:33 +05'30'
2026:UHC:1539
