Hridaylal Shah vs State Of Madhya Pradesh

Himanshu Joshi, J

The petitioner has filed present petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 against the order dated 29.11.2025 passed by Vth ASJ, Singrauli District Singauli.

The concise accounts of the case are that the petitioner along with other co-accused persons has been prosecuted for commission of offences under Sections 294, 323, 324, 307, 506, 34, 302 of IPC registered at Crime No.859/2021. After due completion of trial, the matter was posted for judgement on 12.09.2025 but on the same day, the prosecution filed an application under Section 311 of the Cr.P.C./348 BNSS stating that due to a bonafide mistake, they could not exhibit the DNA report, hence, a prayer was made for recalling of witness i.e. Investigating Officer of the instant case. Said application was allowed by the learned trial Court vide order dated 15.09.2025 and accordingly the said witness was recalled and was examined and cross examined.

Further, on 15.10.2025, the petitioner filed an application under Section 311 of the Cr.P.C./348 of BNSS for recalling of witnesses, stating that since new facts regarding the DNA report has come down recently, hence they are required to recall and examine the witnesses. It is further submitted that the trial Court after hearing both the parties decided the application vide its order dated 04.11.2025 by dismissing the same. Thereafter, a fresh application was moved before the trial court under Section 311 of the Cr.P.C. for consideration as necessary witnesses were not mentioned in earlier application. However, learned trial Court after hearing the arguments and dismissed the same vide order dated 29.11.2025.

Hence, this petition.

It is submitted by the learned counsel for the petitioner that the impugned order passed by the learned Trial Court is bad in law. and deserves to be quashed in the interest of justice by invoking inherent power under Section 482 of the Cr.P.C. and application 311 of the Cr.P.C. filed by the present petitioner may be allowed. The defense should be granted an opportunity to build its defence regarding the newly disclosed evidence against him.

Learned Government Advocate for the State has opposed the prayer made by counsel for the petitioner and submitted that the Investigating Officer has already been cross-examined by the defence after exhibiting the DNA report on record.

Heard the learned counsel for the parties.

The Hon'ble Apex Court in the case of Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, has held as under : -

A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a prefix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re- examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re- examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re -examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

Having considered the principle laid down by the Hon'ble Apex Court, this Court finds that:

(i) The trial court has inherent powers to allow the recall of witnesses in appropriate circumstances to meet the ends of justice;

(ii) The refusal to allow the defence to recall the witnesses may result in the denial of an opportunity to fully present its case;

(iii) The interest of justice demands that every party should have a fair chance to elicit necessary evidence and to test the veracity of the witnesses’ testimony.

It is an undisputed fact that the trial had reached the stage of judgment and was posted for the same on 12.09.2025. At that stage, the prosecution was permitted by the trial court to file an additional application to place the DNA report on record and to recall the Investigating Officer. The said application was allowed, and the Investigating Officer was examined and cross-examined at the fag end of the trial.

Once the trial court exercised its discretion in favour of the prosecution to reopen the evidence and recall a witness at such a belated stage, the principle of parity and fairness demanded that the defence also be afforded a reasonable opportunity to recall witnesses, particularly when the defence sought to test the evidence that was introduced subsequently.

The rejection of the defence application for recall, after having permitted the prosecution to recall witnesses at the final stage, has resulted in an unequal treatment between the prosecution and the defence, which is inconsistent with the concept of a fair trial as guaranteed under law.

The object of criminal trial is not to secure a conviction at any cost, but to discover the truth. Procedural rules are handmaids of justice, and technicalities cannot be permitted to override substantial justice, especially when no serious prejudice would be caused to the prosecution by allowing the defence to recall witnesses.

This Court finds that denial of an opportunity to the defence to recall the Investigating Officer, who was already recalled at the instance of the prosecution, would amount to curtailing the right of the accused to effectively defend himself, thereby causing miscarriage of justice.

In the considered opinion of this Court, permitting the defence to recall the witnesses, including the Investigating Officer, would serve the ends of justice, ensure a fair and balanced trial, and would not prejudice the prosecution, provided such recall is regulated and completed within a fixed time frame.

The petitioner is having a right of fair trial and he must have given opportunity to cross-examine the witness and proper opportunity should be given to prove his innocence. The Hon'ble Apex Court in the case of Mrs. Kalyani Bhaskar Vs. Mrs. M. S. Sampoornam (2007) 2 SC 258, has held that the appellant cannot be convicted without an opportunity being given to him/her to present her evidence and if it is denied to him/her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove his/her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.

Learned trial Court failed to consider and scope of under section 311 Cr.P.C./348 of BNSS, and thus impugned order passed by the learned trial Court dated 29.11.2025 deserves to be set aside. In the circumstances, this Court is of the opinion that the ends of justice require that the petitioner/defence be permitted to recall the Investigating Officer and other relevant witnesses for further examination and/or cross-examination.

Accordingly, the petition is allowed under Section 482 CrPC. The trial Court is directed to permit the petitioner/defence to recall the Investigating Officer and other witnesses, if necessary, for further examination and/or cross-examination. The trial court shall complete the process of recall of witnesses within a period of 30 days from the date of receipt of certified copy of this order.

However, while allowing the petition in the interest of justice, this Court deems it appropriate to impose the following stringent conditions to ensure that the liberty granted is not misused and that the trial is concluded expeditiously:

(a) The petitioner/accused shall not seek any adjournment on the date fixed for recall and examination/cross-examination of the witnesses, including the Investigating Officer, under any circumstances.

(b) The petitioner shall ensure the presence of his counsel on the scheduled date, and in the event of failure, the trial court shall be at liberty to close the opportunity of cross-examination without further reference to this Court.

(c) The recall and examination/cross-examination of the witnesses shall be restricted strictly to the issues arising out of the DNA report and related aspects, and shall not be used to re-open the entire trial.

(d) The petitioner shall complete the cross-examination of each recalled witness on the same day, unless prevented by reasons beyond control, to be recorded by the trial court.

(e) The petitioner shall file an undertaking before the trial court that no adjournment shall be sought and that the proceedings shall be completed within the time stipulated.

(f) The trial court shall fix a specific date and time for recall of the witnesses and shall ensure that the entire exercise is completed within a maximum period of

30 days from the date of recall.

(g) In the event of violation of any of the above conditions, the trial court shall be at liberty to cancel the permission granted for recall and proceed with the trial in accordance with law.

(h) The trial court is further directed to proceed with the final arguments and 7 MCRC-56270-2025 pronounce judgment expeditiously thereafter, without granting unnecessary adjournments to either party.

The Registry is directed to communicate a copy of this order to the trial court immediately.