The Rajasthan High Court has reaffirmed that the right to cross-examine a prosecution witness is a cornerstone of fair trial under Article 21 of the Constitution. In this case, the trial court denied the accused’s application to recall a witness after counsel’s absence due to religious pilgrimage, citing insufficient grounds. The High Court quashed that order, directing a final opportunity for cross-examination under Section 311 CrPC, subject to a cost of Rs. 2,000 to the witness. This decision reinforces procedural fairness over technical dismissal.
The Verdict
The petitioner won. The High Court held that denying cross-examination of a prosecution witness without compelling justification violates the principles of natural justice and the right to a fair trial. The court quashed the trial court’s order dismissing the recall application and directed that the petitioner be granted one final opportunity to cross-examine Witness PW-2, subject to payment of Rs. 2,000 as cost. No further opportunity shall be granted if this condition is not met.
Background & Facts
The petitioner, accused in a criminal case pending before the Additional Sessions Judge No. 2, Bhilwara, sought to cross-examine Prosecution Witness PW-2. On 6 November 2025, the petitioner’s counsel was absent due to an unforeseen religious pilgrimage. The trial court closed the cross-examination stage on that date without granting an adjournment or alternative opportunity. Subsequently, the petitioner filed an application under Section 311 of the Code of Criminal Procedure, 1973, seeking recall of PW-2 for cross-examination. The trial court dismissed the application, observing that no just and proper reasons were disclosed for the delay. The petitioner then filed a criminal miscellaneous petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging this dismissal. The petition sought quashing of the trial court’s order and restoration of the right to cross-examine PW-2.
The Legal Issue
The central question was whether the trial court’s refusal to recall a prosecution witness for cross-examination, following counsel’s bona fide absence, violates the principles of natural justice and the accused’s right to a fair trial under Article 21 of the Constitution, particularly when Section 311 CrPC empowers the court to recall witnesses in the interests of justice.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the absence of counsel was due to a bona fide religious obligation, not negligence or dilatory tactics. He relied on Section 311 CrPC, which permits the court to recall any witness at any stage if their evidence is essential for a just decision. He cited precedents holding that denial of cross-examination amounts to denial of the right to defend, which is a fundamental component of fair trial. He emphasized that the witness’s testimony was material and that the accused had not waived his right to cross-examine.
For the Respondent
The State, through the Public Prosecutor, contended that the trial court had exercised its discretion properly. It argued that the petitioner had ample opportunity to appear or arrange substitute counsel, and that the application under Section 311 CrPC was belated and lacked sufficient justification. The State maintained that allowing recall at this stage would prejudice the prosecution and disrupt trial proceedings.
The Court's Analysis
The High Court acknowledged that while the trial court’s order was not per se illegal or perverse, the denial of cross-examination on the ground of insufficient reasons, without considering the nature of the absence or the materiality of the witness’s testimony, ran counter to the foundational tenets of natural justice. The court emphasized that the right to cross-examine is not a mere procedural formality but a substantive safeguard against wrongful conviction.
"The right to cross-examine a prosecution witness is an indispensable element of a fair trial and cannot be denied on technical grounds, especially when the absence of counsel is attributable to a bona fide reason."
The court noted that Section 311 CrPC is a provision of wide amplitude, designed to ensure that no material evidence remains untested. It held that the trial court’s rigid interpretation of the application’s grounds ignored the spirit of the provision. The court further observed that the accused’s right to defend himself under Article 21 outweighs procedural convenience. However, to prevent abuse and ensure accountability, the court imposed a cost of Rs. 2,000 on the petitioner to be paid to PW-2, as a deterrent against future delays. The court made it unequivocally clear that this was the final opportunity - no further adjournments would be permitted.
What This Means For Similar Cases
This judgment provides clear guidance for trial courts and defense counsel in criminal proceedings. It establishes that bona fide absence of counsel due to unavoidable personal or religious obligations constitutes sufficient ground for recalling a witness under Section 311 CrPC. Practitioners may now confidently invoke this principle when opposing summary closure of cross-examination. The imposition of cost as a condition for relief introduces a balanced deterrent against frivolous or repeated applications. However, the ruling is fact-specific: it applies only where the witness’s testimony is material and the absence is genuinely excusable. Courts may still deny recall if the delay is habitual, the witness’s evidence is cumulative, or the accused has been dilatory. This decision reinforces that procedural fairness must prevail over technical compliance, but with accountability.
