S.311 CrPC | Witness To Be Recalled Only For Strong & Valid Reasons, Not To Prejudice Accused: Kerala High Court

The Kerala High Court last week held that recalling a witness under Section 311 CrPC must be done only when there is a strong and valid reason to do which should be recorded by the competent authority.

Justice K Babu held thus,

“Recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.”

The Court added that the power of recalling a witness must not be used arbitrarily or capriciously to cause prejudice to the accused.

“The prejudice to be caused to the accused is highly important in this regard. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is the main object of the criminal procedure and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused.”, the Court stated.

Section 311 of CrPC envisages that any court may, at any stage of any inquiry, trial or other proceedings, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined.

The petitioner was the second accused in a robbery case. The only eyewitness was the complainant who identified the first accused and failed to identify the second accused. The complainant preferred an application to recall and summon her again under Section 311 CrPC so that she gets another chance to identify the second accused. This was allowed by the Magistrate and was under challenge before the High Court.

The counsel for the petitioner contended that the prosecution cannot ask for re-examination of the complainant to overcome the inherent weakness in their case. It was argued that the intent of Section 311 CrPC was not to give unfair advantage to the prosecution.

The counsel for the respondents submitted that u/s 311 CrPC, the Court has wide summoning powers and can examine witnesses for taking a just decision.

The Court found that during the examination, the first accused and petitioner were present in the box and the complainant identified the first accused alone. The Court held that the power u/s 311 CrPC must be exercised judiciously with the object of discovering relevant and true facts for obtaining proper proof of such facts for a just decision of the case. The Court noted that witnesses must not be recalled to the disadvantage of the accused or to cause serious prejudice to the defence or the accused. The Court stated that 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.

On the afore findings, the Court held that the order of the Magistrate allowing the application to recall the complainant was not justified.

Case title: Karthik S Nair V State of Kerala

Citation: 2023 LiveLaw (Ker) 439

Case number: CRL.MC NO. 1790 Of 2023

Counsel for the petitioner: Advocates Gayathri Muraleedharan, V.A. Ajay

Counsel for the respondents: Public Prosecutor M.K. Pushpalatha

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