The Telangana High Court clarified that a trial court’s order permitting the recall of a material witness under Section 311 of the Code of Criminal Procedure is not liable to be quashed merely because an earlier similar petition was dismissed as not pressed, provided the grounds for recall are distinct and the evidence is essential for a just decision. The Court confirmed the impugned order while imposing costs of Rs.5,000 on the prosecution for dilatory conduct.
Background & Facts
The Dispute
The petitioner, D. Balaji S/o. Nanda, an Inspector of Police and Accused Officer in C.C.No.161 of 2024, is facing prosecution for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (P.C. Act). The prosecution’s case rests on the initial complaint of PW.1, who was examined as a material witness. During trial, PW.1 was examined-in-chief on 05.06.2017, 19.06.2017 and 22.06.2017, cross-examined by the petitioner and re-examined by the learned Special Public Prosecutor on 28.06.2017, after which his evidence was closed. The prosecution subsequently sought to recall PW.1 to bring foundational facts proving demand and acceptance of illegal gratification.
Key Facts
- PW.1 was examined-in-chief on 05.06.2017, 19.06.2017 and 22.06.2017.
- He was cross-examined by the petitioner and re-examined by the learned Special Public Prosecutor on 28.06.2017; his evidence was closed the same day.
- On 20.10.2023, the prosecution filed Crl.M.P.No.208 of 2024 under Section 311 CrPC seeking recall of PW.1 to bring foundational facts to prove demand and acceptance of illegal gratification and for better adjudication.
- The learned trial Court dismissed Crl.M.P.No.208 of 2024 as not pressed on 25.11.2024.
- On 13.08.2025, the prosecution filed Crl.M.P.No.459 of 2025 seeking recall of PW.1 on the ground that PW.1 did not support the prosecution case and, due to oversight, was not declared hostile nor cross-examined.
- The trial Court allowed Crl.M.P.No.459 of 2025 by order dated 09.06.2026 (the impugned order).
- The matter was reserved on 09.09.2026 and judgment pronounced on 16.09.2026.
Procedural History
- 05.06.2017, 19.06.2017, 22.06.2017: PW.1 examined-in-chief.
- 28.06.2017: PW.1 cross-examined and re-examined; evidence closed.
- 20.10.2023: Prosecution filed Crl.M.P.No.208 of 2024 under Section 311 CrPC seeking recall of PW.1.
- 25.11.2024: Trial Court dismissed Crl.M.P.No.208 of 2024 as not pressed.
- 13.08.2025: Prosecution filed Crl.M.P.No.459 of 2025 seeking recall of PW.1.
- 09.06.2026: Trial Court allowed Crl.M.P.No.459 of 2025 (impugned order).
- 09.09.2026: Matter reserved.
- 16.09.2026: Judgment pronounced.
The Parties' Positions
For the Petitioner: Learned Senior Counsel submitted that the recall petition filed on 13.08.2025 sought the same relief as the earlier petition dismissed as not pressed on 25.11.2024, thereby amounting to an impermissible review barred by Section 362 CrPC. It was argued that the trial Court, without considering the petitioner’s counter, erroneously allowed the petition, and that the impugned order should be quashed.
For the Respondent: Learned Special Public Prosecutor contended that PW.1 remains a material witness whose recall is essential to secure the ends of justice. Reliance was placed on Section 311 CrPC, which permits recall at any stage when evidence is necessary for a just decision, and on precedent holding that Section 362 CrPC does not bar interlocutory orders. It was submitted that no prejudice would be caused to the petitioner, who would also get an opportunity to cross-examine PW.1.
Relief Sought
The petitioner sought quashing of the impugned order dated 09.06.2026, award of costs, and any other relief deemed fit. The respondent defended the order and sought dismissal of the petition.
The Legal Issue
The central question was whether the trial court’s order allowing recall of a material witness under Section 311 CrPC, after an earlier dismissal of a similar petition as not pressed, is liable to be quashed on the ground that it amounts to an impermissible review barred by Section 362 CrPC.
Arguments Presented
For the Petitioner
The petitioner relied on the principle that Section 362 CrPC bars a court from reviewing or modifying an order once signed, except to correct clerical errors. It was argued that the second recall petition, filed on identical grounds, sought to review the earlier dismissal and thus violated the bar. The petitioner further submitted that the trial Court failed to apply its mind to the counter-arguments and erroneously exercised discretion, causing prejudice.
For the Respondent
The respondent emphasized that Section 311 CrPC confers wide powers on the criminal court to summon, examine, recall or re-examine any witness at any stage when such evidence is essential for a just decision. It was submitted that the grounds for the second petition differed - namely, that PW.1 did not support the prosecution case and, due to oversight, was not declared hostile nor cross-examined - and therefore Section 362 CrPC did not apply. Reliance was placed on The State represented by the Deputy Superintendent of Police vs. N.Seenivasagan (2021) 14 SCC 1, K.P.Tamilmaran V. State by Deputy Superintendent of Police (2025 SCC OnLine SC 958) and Satbir Singh v. State of Haryana and others (2023 SCC OnLine SC 1086) to show that recall is permissible when evidence is material and necessary, irrespective of the stage of proceedings.
The Court's Analysis
The Court examined the rival submissions and the material on record. It noted that PW.1 is a material witness whose initial complaint set the criminal law in motion. The evidence shows that PW.1 was examined-in-chief on three occasions in June 2017, cross-examined and re-examined on 28.06.2017, after which his evidence was closed. The prosecution’s first recall petition filed on 20.10.2023 under Section 311 CrPC was dismissed as not pressed on 25.11.2024 because the learned Special Public Prosecutor did not press it. The second recall petition filed on 13.08.2025 alleged that PW.1 did not support the prosecution case and, due to oversight, was not declared hostile nor cross-examined.
The Court held that the power under Section 311 CrPC is intended to enable the Court to arrive at a just decision on the basis of complete and relevant evidence. The Court may, at any stage of the proceedings, summon, examine, recall, or re-examine a witness where such evidence is essential for the just decision of the case. The decisive consideration is the necessity of the evidence, and not merely the stage at which the application is filed. Where the proposed evidence is material and necessary for a proper adjudication, the Court should exercise its power to secure the ends of justice.
"The power under Section 311 CrPC is intended to enable the Court to arrive at a just decision on the basis of complete and relevant evidence. The Court may, at any stage of the proceedings, summon, examine, recall, or re-examine a witness where such evidence is essential for the just decision of the case. The decisive consideration is the necessity of the evidence, and not merely the stage at which the application is filed."
The Court further observed that the second petition was not filed on the same grounds as the first; the first petition sought recall to bring foundational facts to prove demand and acceptance of illegal gratification, whereas the second alleged lack of support and oversight in declaring hostility or conducting cross-examination. Hence, Section 362 CrPC, which bars review of an order, did not apply. The trial Court, after considering the contentions of both parties and relying on the aforementioned precedents, rightly allowed the petition. The Court added that, given the prosecution’s delay in seeking recall, it ought to have awarded costs against the respondent/complainant.
Accordingly, the Court confirmed the impugned order, subject to the condition that the respondent/complainant pay Rs.5,000 to the District Legal Services Authority (Special Division), Nampally, within one week, and directed the prosecution to re-examine PW.1 as per the schedule fixed by the trial Court without seeking adjournment, and the trial Court to conclude proceedings and dispose of the C.C. as expeditiously as possible, preferably within four weeks.
The Verdict
The respondent/State succeeded. The Court held that the trial court’s order allowing recall of PW.1 under Section 311 CrPC is not liable to be quashed, as the evidence was essential for a just decision and the grounds for recall differed from the earlier petition, thus Section 362 CrPC does not bar the proceeding. The Court confirmed the impugned order dated 09.06.2026, directed the respondent/complainant to pay costs of Rs.5,000 to the District Legal Services Authority (Special Division), Nampally, within one week, ordered the prosecution to re-examine PW.1 per the trial Court’s schedule without adjournment, and directed the trial Court to conclude proceedings and dispose of the C.C. preferably within four weeks.
What This Means For Similar Cases
Recall Grounds Must Be Distinct
Practitioners must ensure that a second recall petition under Section 311 CrPC is founded on grounds materially different from an earlier dismissed petition; otherwise, it may be barred by Section 362 CrPC as an impermissible review.
- Verify that the allegations in the second petition (e.g., lack of support, oversight in declaring hostility) are not substantially identical to those in the first.
- If the grounds are the same, the petition is likely to be dismissed as barred.
Essentiality of Evidence Is the Decisive Test
The necessity, relevance and materiality of the evidence, not the stage of the proceeding, determine whether recall under Section 311 CrPC should be allowed.
- Assess whether the witness’s testimony is essential to prove a key element of the charge (e.g., demand and acceptance of illegal gratification).
- If the evidence is material and necessary for a just decision, the Court is duty-bound to exercise its power under Section 311 CrPC, even at a late stage.
Costs May Be Imposed for Dilatory Conduct
Where the prosecution’s delay in seeking recall causes unnecessary prolongation, the Court may impose costs to discourage laxity.
- Be prepared to argue for costs where the prosecution fails to press a recall petition or delays filing without justification.
- Costs may be directed to be paid to the District Legal Services Authority or similar entity, as seen in the Rs.5,000 direction.
