The Allahabad High Court has dismissed an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, reinforcing the statutory boundaries of Section 311 of the Code of Criminal Procedure (CrPC). The judgment clarifies that recalling witnesses post-charge framing is permissible only when their evidence is indispensable to the just decision of the case, and not merely to rectify procedural lapses or strategic oversights by counsel. This ruling underscores the judiciary’s commitment to preventing trial delays while ensuring fairness in criminal proceedings.
Background & Facts
The Dispute
The applicant, Dilawar Singh, filed a complaint under Sections 406, 504, and 506 of the Indian Penal Code (IPC) against the opposite parties, alleging criminal breach of trust, intentional insult, and criminal intimidation. The complaint was instituted otherwise than on a police report, triggering the procedural framework under Chapter XIX (Part B) of the CrPC for warrant cases.
Key Facts
- 21.10.2013: Complainant’s statement recorded under Section 200 CrPC; witnesses Shivkumar and Ghanshyam examined under Section 202 CrPC.
- 20.01.2014: Trial Magistrate summoned the accused after finding a prima facie case.
- 10.10.2018: Matter listed for evidence under Section 244 CrPC.
- 10.01.2020: Complainant’s primary statement recorded under Section 244 CrPC.
- 04.01.2021: Complainant’s counsel made a written endorsement stating no further evidence would be adduced under Section 244 CrPC.
- 21.12.2021: Discharge application by accused rejected; charges framed.
- 01.12.2025: Complainant filed an application under Section 311 CrPC to summon Shivkumar and Ghanshyam, citing negligence of former counsel.
- 20.12.2025: Trial Court rejected the application.
- 07.04.2026: Sessions Court dismissed the criminal revision, affirming the Trial Court’s order.
Procedural History
- Complaint Case No. 11414 of 2021: Filed before Judicial Magistrate First Class, Baghpat.
- 20.12.2025: Trial Court rejected Section 311 CrPC application.
- Criminal Revision No. 17 of 2026: Filed before Sessions Judge, Baghpat; dismissed on 07.04.2026.
- Application U/S 528 BNSS No. 20636 of 2026: Filed before Allahabad High Court.
Relief Sought
The applicant sought recall of witnesses Shivkumar and Ghanshyam under Section 311 CrPC, arguing that their non-examination under Section 244 CrPC was due to counsel’s negligence and that their evidence was crucial for a just decision.
The Legal Issue
The central question was whether Section 311 CrPC permits the recall of witnesses for cross-examination under Section 246 CrPC when their examination-in-chief under Section 244 CrPC was deliberately waived by the complainant’s counsel, and the trial had advanced to the post-charge stage.
Arguments Presented
For the Applicant
- The applicant’s counsel argued that the omission to examine Shivkumar and Ghanshyam under Section 244 CrPC was due to gross negligence of former counsel, and the applicant had no personal knowledge of legal procedures.
- The witnesses had already given statements under Section 202 CrPC, which formed the basis for summoning the accused, and their evidence was essential for justice.
- Section 311 CrPC is designed to prevent miscarriage of justice, and denying their recall would prejudice the complainant’s case.
For the Respondent
- The Learned Additional Government Advocate (AGA) contended that the application was an afterthought aimed at delaying the trial, violating the High Court’s order dated 30.05.2022 directing expedited disposal.
- The complainant’s counsel had deliberately waived further evidence under Section 244 CrPC on 04.01.2021, and charges were framed on 04.03.2022 based on this waiver.
- The statutory framework under Sections 244 and 246 CrPC does not permit recall of witnesses for cross-examination if they were not examined under Section 244 CrPC.
The Court's Analysis
The Court undertook a detailed examination of the statutory framework governing trials of warrant cases instituted otherwise than on a police report, emphasizing the sequential and mandatory nature of the procedure under Chapter XIX (Part B) of the CrPC.
"Only those witnesses who were duly subjected to examination-in-chief under Section 244 Cr.P.C. before the framing of charges can be recalled for cross-examination under Section 246 Cr.P.C. A witness whose statement was only recorded at the pre-summoning stage under Section 202 Cr.P.C. does not automatically become substantive trial evidence. If the complainant fails to examine them under Section 244, they cannot directly cross-examine them under Section 246."
The Court acknowledged the broad discretionary power conferred by Section 311 CrPC, which allows courts to summon, examine, or recall witnesses at any stage of the proceedings if their evidence is essential to the just decision of the case. However, this power is not unfettered and must be exercised judiciously to prevent abuse of process.
The Court relied on several landmark judgments to delineate the contours of Section 311 CrPC:
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State (NCT of Delhi) v. Shiv Kumar Yadav ((2016) 2 SCC 402): The Supreme Court held that fairness of trial must be balanced from the perspectives of both the accused and the victim. The power under Section 311 CrPC must be exercised only when injustice is caused to a party, and the court must record specific reasons for doing so.
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Swapan Kumar Chatterjee v. CBI ((2019) 14 SCC 328): The Supreme Court emphasized that Section 311 CrPC is permissive in the first part (discretionary) and mandatory in the second part (obligation to summon if evidence is essential). However, belated applications for recall, especially after the prosecution evidence is closed, should not be allowed if they cause prejudice to the accused.
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Natasha Singh v. CBI ((2013) 5 SCC 741): The Supreme Court reiterated that Section 311 CrPC confers wide powers but must be exercised judiciously to ensure that the best available evidence is brought before the court. The provision cannot be used to fill gaps in the case or undo explicit waivers.
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Rajaram Prasad Yadav v. State of Bihar ((2013) 14 SCC 461): The Court underscored that Section 311 CrPC is not a tool for retrials or strategic delays. The power must be exercised sparingly and only when the evidence sought is indispensable.
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Mayankkumar Natwarlal Kankana Patel v. State of Gujarat (2025 INSC 1475): The Supreme Court held that recall applications filed at advanced stages of trial (e.g., after examination of 21 witnesses) should be dismissed unless the evidence sought is absolutely essential.
The Court also addressed the applicant’s contention that the omission was due to counsel’s negligence, citing State (NCT of Delhi) v. Shiv Kumar Yadav to reject this argument. The Court noted that the applicant’s previous counsel was of his choice, and the applicant had never objected to the written endorsement waiving further evidence under Section 244 CrPC. Allowing such claims would undermine the trial process and lead to endless delays.
"If this Court were to permit a party to erase years of formal trial steps simply by hiring a new lawyer and claiming 'my previous lawyer didn't inform me,' the entire structure of the criminal justice system would collapse into endless delays."
The Court concluded that allowing the recall of witnesses at the post-charge stage would prejudice the accused and disrupt the statutory trial process. The concurrent findings of the Trial Court and Sessions Court were legally sound and required no interference.
The Verdict
The Allahabad High Court dismissed the application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court held that:
- The recall of witnesses under Section 311 CrPC post-charge framing is impermissible unless their evidence is indispensable to the just decision of the case.
- The applicant’s deliberate waiver of further evidence under Section 244 CrPC on 04.01.2021 precluded their recall under Section 246 CrPC.
- The orders of the Trial Court (20.12.2025) and Sessions Court (07.04.2026) were legally sound and free from perversity or jurisdictional error.
What This Means For Similar Cases
The Limits of Section 311 CrPC
- Section 311 CrPC is not a tool for retrial: Courts will not permit recall of witnesses to fill gaps in a party’s case or undo explicit waivers of evidence. Practitioners must ensure that all critical witnesses are examined under Section 244 CrPC before charges are framed.
- Belated applications filed at advanced stages of trial (e.g., post-charge framing) are likely to be dismissed unless the evidence sought is absolutely essential to prevent miscarriage of justice.
Waiver of Evidence is Binding
- A deliberate written endorsement by counsel waiving further evidence under Section 244 CrPC is binding on the party. Courts will not entertain subsequent applications to recall witnesses based on counsel’s negligence or strategic oversights.
- Parties cannot erase procedural steps by hiring new counsel and claiming lack of knowledge of legal procedures. Such arguments will be rejected as attempts to delay trials.
Statutory Trial Structure is Non-Negotiable
- The sequential procedure under Chapter XIX (Part B) of the CrPC is mandatory. Witnesses examined under Section 202 CrPC (pre-summoning stage) do not automatically become part of the trial evidence. Their recall under Section 246 CrPC is not permitted unless they were examined under Section 244 CrPC.
- Courts will strictly enforce the statutory framework to prevent prejudice to the accused and abuse of process. Practitioners must adhere to timelines and procedural requirements to avoid adverse orders.
