2025 (4) TMI 948 - HC - Indian Laws

Petition dismissed challenging refusal to recall witness under Section 311 Cr.PC in cheque dishonour case

Delhi HC dismissed petition challenging trial court's refusal to recall witness under Section 311 Cr.PC in dishonour of cheque case. Court held that ... Dishonour of Cheque - exercise of the court's discretionary power under Section 311 of the Code of Criminal Procedure, 1973 - HELD THAT:- Section 313 Cr. PC is a salutary provision which empowers the Court to 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, if his evidence appears to be essential to the just decision of the case. It is aimed at empowering the court to find out the truth and to render a just decision. Such power is discretionary and is to be exercised only for strong and valid reasons and with caution and circumspection. This Section confers a vide discretion on the Court to act as the exigencies of justice require. The discretion conferred to the Court has to be exercised judicially. The Apex Court in its judgments in Vijay Kumar Vs. State of U.P. [2011 (8) TMI 1354 - SUPREME COURT], State (NCT of Delhi Vs. Shiv Kumar Yadav [2015 (9) TMI 1702 - SUPREME COURT] and Ratanlal Vs. Prahlad Jat [2017 (9) TMI 1983 - SUPREME COURT] has held that the recall of witness is not a matter of course and power under Section 311 of the Code has to be exercised judiciously, with caution and circumspection and not arbitrarily or capriciously. Such discretionary power has to be exercised on the basis of facts and circumstances of each case and has to be balanced carefully with considerations. The trial court observed that no medical document of the previous counsel was placed on record to support the version of the accused. Even if assuming that the counsel was suffering from health issues due to which he was unable to come to Delhi from Bangalore, nothing prevented the petitioner in engaging a new advocate. The orders passed by the trial court reveal that trial court had rather been lenient with the petitioner, inasmuch as, not only NBWs were cancelled liberally, several adjournments were granted to the petitioner for cross examination of respondent No. 2. Due to frequent adjournments, the trial is yet not concluded. Petitioners did not avail the opportunities granted to them for cross examination of respondent No. 2 and for leading evidence in his defence. Mere change of name of respondent entity would not confer any fresh right of cross-examination of respondent no. 2. Conclusion - The Court is of the opinion that the provisions of Section 311 Cr. PC cannot be allowed to be misused by the petitioners to derail the proceedings or to cause inconvenience to the other party as the same would amount to miscarriage of justice and cause prejudice to respondent no. 2. There are no infirmity in the impugned order dated 20.07.2024. The petition is devoid of any merit - petition dismissed. The core legal questions considered in this judgment revolve around the exercise of the court's discretionary power under Section 311 of the Code of Criminal Procedure, 1973 ('CrPC') in the context of a criminal complaint filed under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act'). Specifically, the issues are:1. Whether the trial court erred in dismissing the petitioners' application under Section 311 CrPC seeking recall of a vital prosecution witness for cross-examination and permission to lead defence evidence after the prosecution evidence was closed and the statement under Section 313 CrPC was recorded.2. Whether the petitioners' right to cross-examination was unjustly curtailed due to the alleged illness and non-appearance of their previous counsel, and whether such circumstances warranted recall of the witness.3. The applicability and scope of judicial discretion under Section 311 CrPC, including the principles governing its exercise and the balance between ensuring a fair trial and preventing abuse of process or undue delay.4. Whether the change of name of the complainant/respondent entity confers any fresh right to cross-examine the witness or to recall evidence.Issue-wise Detailed Analysis1. Exercise of Discretion under Section 311 CrPC for Recall of WitnessThe relevant legal framework includes Section 311 CrPC, which empowers the court to summon or recall witnesses at any stage of inquiry or trial if their evidence is essential to the just decision of the case. The court's power is discretionary but must be exercised judiciously, with caution and circumspection, and only for strong and valid reasons to prevent miscarriage of justice.Precedents cited by the Court include:Vijay Kumar v. State of U.P. (2011): Emphasized that discretion under Section 311 must be exercised for the ends of justice, judicially and not arbitrarily or capriciously.Ratanlal v. Prahlad Jat (2017): Held that recall of witnesses is not a matter of course and must be for strong and valid reasons, with reasons to be spelt out in the order.Zahira Habibullah Sheikh v. State of Gujarat (2006): Clarified that Section 311 is a general provision applicable to all proceedings, aimed at preventing failure of justice due to omission or ambiguity, and the discretion must be exercised with judicial mind.State (NCT of Delhi) v. Shiv Kumar Yadav (2016): Held that recall is permissible if essential for just decision but not merely on the basis of ensuring fair trial without tangible reasons; also emphasized balancing prejudice and delay considerations.Umar Mohammad v. State of Rajasthan (2007): Highlighted that delay in filing application under Section 311 is a significant factor and unexplained delay militates against recall.Manju Devi v. State of Rajasthan (2019): Reiterated that Section 311 is a discretionary power to keep record straight and clear ambiguities without causing prejudice.Swapan Kumar Chatterjee v. CBI (2019): Noted that Section 311 empowers the court to summon, examine, recall witnesses as necessary for just decision, but discretion must be exercised cautiously.The Court interpreted these precedents as establishing that recall of witnesses under Section 311 is an exceptional remedy, to be granted only when the evidence is essential and reasons are cogent, avoiding abuse of process or undue delay.2. Petitioners' Allegation of Counsel's Illness and Impact on Right to Cross-ExaminationThe petitioners contended that their previous counsel, aged about 72 and suffering from Diabetic Retinopathy, was unable to appear on many dates due to medical treatment, resulting in closure of their right to cross-examine respondent No. 2. They argued that the petitioners should not suffer for their counsel's health issues and that respondent No. 2 was a vital witness whose non-examination would be fatal to their defence.The Court noted that the petitioners failed to produce any medical records to substantiate the counsel's illness. Even assuming the counsel's indisposition, the petitioners did not engage a new advocate despite ample opportunity. The Court observed that the petitioners' conduct during the trial was lethargic, with frequent non-appearance leading to issuance of non-bailable warrants, and that several adjournments were granted liberally to facilitate cross-examination.The Court found that the petitioners had taken the court's indulgence for granted, possibly to delay proceedings, and that the failure to cross-examine the witness was not due to any compelling reason but due to their own inaction. The Court concluded that the petitioners' plea was an attempt to misuse Section 311 to derail the trial.3. Delay and Timing of Application under Section 311 CrPCThe petitioners filed the application under Section 311 after the prosecution evidence was closed (24.05.2023), the statement under Section 313 CrPC was recorded (20.09.2023), and the defence evidence was closed (16.01.2024). The application was filed on 17.02.2024, well after the closure of the right to lead defence evidence.The Court held that such belated application without satisfactory explanation for delay is not tenable. Delay is a crucial factor in considering recall applications, and unexplained or inordinate delay militates against the exercise of discretion in favour of recall. The Court relied on the principle that recall should not be permitted to cause prejudice to the other party or to prolong the trial unnecessarily.4. Effect of Change of Name of Respondent EntityThe respondent's name was changed from 'Gemalto Digital Security Pvt. Ltd.' to 'Thales Dis India Private Limited' during the proceedings. The petitioners argued that this change conferred a fresh right to cross-examine respondent No. 2.The Court rejected this contention, holding that a mere change of name does not revive or confer any fresh procedural rights such as cross-examination or recall of evidence. The change of name is a formal matter and does not affect substantive procedural rights or timelines.Conclusions on IssuesThe Court concluded that the petitioners failed to establish any strong or valid reason for recall of the witness under Section 311 CrPC. The discretionary power was rightly exercised by the trial court in refusing the application, considering the petitioners' lethargic conduct, lack of medical evidence for counsel's illness, unexplained delay, and the absence of prejudice to the petitioners that would warrant recall. The Court emphasized that the power under Section 311 is not to be used as a tool for delay or harassment of the other party.Significant HoldingsThe judgment preserves the following crucial legal reasoning verbatim:'In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.''Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.''The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.''Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial.''Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.'Core principles established include:The discretionary power under Section 311 CrPC is to be exercised judicially, with caution and circumspection, only for strong and valid reasons essential to the just decision of the case.Recall of witnesses is not a matter of right or routine but an exceptional remedy to prevent miscarriage of justice.Delay in filing applications for recall without satisfactory explanation militates against the exercise of discretion in favour of recall.Failure of a party's counsel to appear due to illness does not automatically entitle the party to recall witnesses, especially if no medical evidence is produced and alternative counsel is not engaged.A mere change of name of a party does not confer fresh procedural rights such as cross-examination or recall of evidence.The court must balance the interests of justice with the need to prevent abuse of process, undue delay, and prejudice to the other party.Final determinations:The High Court found no infirmity in the trial court's order dismissing the petitioners' application under Section 311 CrPC. The petition was dismissed as devoid of merit, affirming that the petitioners' right to cross-examination was not arbitrarily curtailed but closed due to their own conduct and delay. The Court upheld the trial court's exercise of discretion, emphasizing the necessity of judicial restraint and the prevention of misuse of procedural powers.