Application To Recall Witness U/S 311 CrPC Can Be Allowed In Court's Discretion At Any Stage Of Trial, Even After Closing Evidence: Madhya Pradesh HC

The Madhya Pradesh High Court at Indore recently, while dismissing a petition filed challenging an order recalling a witness, reiterated that if the conditions under Section 311 of CrPC are satisfied, the Court can recall a witness at any stage of the trial, even after closing prosecution evidence.

Justice Vijay Kumar Shukla observed that,

It is crystal clear that the Court has been empowered to summon any person as a witness at any stage of inquiry, trial or other proceeding. It is settled in law that if the conditions under this section are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence, but also it can do so on its own motion. All that is required is the satisfaction of the Court in relation to such evidence which appears to the Court to be essential for the just decision.

The petition was filed challenging the order passed by the Additional Sessions Judge allowing an application filed under Section 311 CrPC for recalling a witness by the prosecution. 

The Counsel appearing for the applicants, Advocate Sanjay Kumar Sharma, submitted that after the closure of evidence of prosecution witnesses twice and after recording the statement of the accused under Section 311, the application filed to produce handwriting expert and other documents and to recall the investigation officer for evidence has been erroneously allowed. According to the applicants, the application ought to have been rejected by the trial Court as the same was filed by the prosecution to fill up the lacuna which is not permissible under the provisions of Section 311 Cr.P.C. The Counsel relied on various High Court decisions including Indrajeet Singh vs. The State of M.P. and B.D. Goel vs. Ebrahim Haji Husen Sanghani & Ors to substantiate his contentions. 

However, the Counsel appearing for the State, Advocate R. S. Bais, submitted that the handwriting expert report and certain important documents were lost in the police station and the same could be traced out only after the arguments and, therefore, the application under Section 311 Cr.P.C. was filed to file the said documents and to recall investigating officer as a witness. 

"There is no illegality in the order impugned as there was no endeavour to fill the lacuna and the said documents and evidence of investigating officer was essential to establish the case," the Counsel submitted before the Court. 

The Court after considering the contentions raised by both parties pointed out that the Apex Court had examined the nature and scope of Section 311 CrPC in Rajaram Prasad Yadav v. State of Bihar and Anr. 

The Court relying on the Apex Court decisions in Mohanlal Shamji Soni v. Union of India, Rajendra Prasad vs. Narcotic Cell and P. Chhaganlal Daga vs. M. Sanjay Shaw, observed that it is clear that the Court has been empowered to summon any person as a witness at any stage of inquiry, trial or other proceedings and all that is required is the satisfaction of the Court in relation to such evidence which appears to the Court to be essential for the just decision.

"In view of the aforesaid law laid down by the Apex Court, I do not find any illegality or perversity in the order impugned passed by the trial Court allowing the application filed by the prosecution under Section 311 Cr.P.C.", The Court said while dismissing the petition.

Case Title: Shankarlal and Anr. v. The State of Madhya Pradesh 

Citation: 2023 LiveLaw (MP) 22

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