Mere Change Of Counsel Not Enough To Permit Recall Of Witness U/S 311 CrPC: Karnataka High Court Reaffirms

While hearing a matter concerning cheque bouncing, the Karnataka High Court reaffirmed that a mere change of counsel cannot be a ground to recall the witness for further cross examination under Section 311 of the Criminal Procedure Code. 

For context, Section 311 grants a court the power to summon material witness, or examine person present. The high court further observed that a plea moved under Section 311 cant be permitted as a matter of course, as recalling of witnesses cannot be permitted at the very end of a trial. 

A single judge bench of Justice M Nagaprasanna in its October 21 order said,

“On a coalesce of the law elucidated by the Apex Court what would unmistakably emerge is that, it is not a matter of course that an application under Section 311 of the Cr.P.C., should be permitted. Mere change of counsel cannot be a ground to recall the witness. The application must contain details as to why the witness is required to be recalled. Recalling of witnesses should not be permitted at the fag end of the trial". 

Taking note of the principles laid down by the Supreme Court in various judgments the high court said that an application under Section 311 CrPC can only be considered "on a case to case basis, depending upon failure of justice that would emerge, if the witness is not recalled". 

The court said this while rejecting a petition filed by M/s. Steel Rocks INC and its proprietor–which was entrusted with construction activities in Hosur-Bangalore highway road–seeking to recall the complainant for further cross examination for the third time in the last seven years, in a case filed against the petitioners under the Negotiable Instruments (NI) Act. The trial court had rejected the petitioners Section 311 CrPC plea to recall the complainant, against which they moved the high court. 

The petitioner company had argued that the prosecution witness-1/complainant M/s. Bangalore Elevated Tollway Pvt Ltd–a toll road maintenance and toll collection company–was cross-examined on two occasions in 2019 when the earlier counsel was on record.

The present counsel for the petitioners, who had now come on record, argued that he noticed that there is certain lacuna in the complainant's cross-examination. Therefore, the petitioner had filed the application under Section 311 of the Cr.P.C., to recall the complainant for further cross-examination.

The complainant opposed the plea saying that the alleged offence is punishable under Section 138 NI Act. The company said that for the last 7 years, the proceedings are pending only on the ground of seeking unnecessary adjournments by filing applications. 

The bench on going through the records noted that the counsel for the petitioners had cross-examined the complainant at length on several occasions in 2019 and 2021. The statement of the petitioners–accused under Section 313 Cr.P.C., was also recorded and the matter was posted for defence evidence. It thereafter said that even after "granting several opportunities, the accused did not lead evidence" before the trial court. 

It then noted that when the matter was then posted for judgment, the application was filed by the new counsel for the petitioner who had entered appearance. 

The high court further said, “There is no new material projected In the case at hand, it is an issue which is of 7 years vintage. It is not a case where PW-1 has not been cross-examined at all. He has been extensively cross-examined and on 4 dates the petitioners have been granted opportunity to further cross-examine PW-1.by the petitioners even before this Court necessitating further cross-examination of PW-1”. 

In view of the observations made by the Supreme Court in various cases, the high court observed that the present case was not one where the complainant was  not cross-examined or further cross-examined. The high court said that it was when the matter was posted for judgment the petitioners moved a plea under Section 311 CrPC and the reason projected by the petitioners was that the "earlier counsel had fumbled and the change of counsel has led to filing of application".

Dismissing the plea, the high court after noting that the case was seven years old, directed the trial court to conclude the proceedings "within an outer limit of 4 four months" from the date of receiving the high court order. 

Case Title: M/s Steel Rocks INC & ANR AND M/S. BANGALORE ELEVATED TOLLWAY PVT. LTD & ANR

Counsel for Petitioners:Advocate Karunashankar K N for Advocate Shankarappa S

Counsel for Respondents: Advocate Shridhar Prabhu

Citation No: 2024 LiveLaw (Kar) 446

Case No: CRIMINAL PETITION No.4877 OF 2024.

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