Trial Court Can't Recall Witness U/S 311 CrPC On Prosecution's Mere Claim That Testimony Was Under Duress: MP High Court

The Madhya Pradesh High Court has made it clear that power to recall witness under Section 311 CrPC cannot be exercised routinely, on mere allegation that initial testimony of the witness was made under duress.

Justice Dinesh Kumar Paliwal held that when witnesses have not made any complaint to the police or to Court and there is nothing on record to show that at the time of tendering evidence before the Trial Court, witnesses were under any threat, duress or coercion, it is not justified on part of the Trial Court to recall the witnesses for further evidence.

The observation comes in a quashing petition filed against Sessions Court order allowing Section 311 application on prosecution's claim that witnesses had testified under duress.

The case pertains to alleged dowry death of petitioner's wife. Charges against the petitioner were framed under Sections 304-B, 498-A/34 of IPC, and Sections 3/4 of the Dowry Prohibition Act, 1961.

During the trial, prosecution witnesses were examined and cross-examined on March 11, 2023. These witnesses did not allege any threats or coercion at the time of their testimonies. However, on May 13, 2023, the Additional Public Prosecutor filed an application under Section 311 of Cr.P.C. to recall three witnesses for re-examination, claiming they had testified under duress.

The legal issue revolved around interpretation of Section 311 and whether witness can be recalled on in the facts of the case. Justice Paliwal observed,

"Witnesses have not filed any complaint or any application before the Trial Court or before the police making complaint that they while tendering evidence or before tendering evidence in any way were threatened, pressurized or intimidated by the accused persons or any one on the side of accused persons. It is worth mentioning that this Court had issued notices to Mathura Prasad Tiwari (father of the deceased) (P.W.-2) and Seeta Tiwari (mother of the deceased) (P.W.-3) to appear and to contest the present petition; but, despite service of notice upon them, they did not turned up. As such, it is apparent that they had to say nothing to support the prosecution application," Court observed in the case.

The High Court reiterated that the power to recall witnesses must be exercised with extreme care and caution to ensure a fair trial, which is a constitutional and human right.

It thus set aside the trial court's order and directed the trial court to proceed expeditiously with the trial based on the existing testimonies and evidence.

Case title: Ashish Kumar Mishra & Others Versus State of M.P. & Others

Citation: MISC. CRIMINAL CASE NO.25914 OF 2023

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