Petition to recall complainant-witness under Section 528 BNSS/Section 482 CrPC dismissed for long delay, failure to cross-examine, and abuse

HC dismissed the petition seeking recall of a complainant-witness and invocation of inherent jurisdiction under Section 528 BNSS/Section 482 CrPC. The court held petitioners long delayed and failed to conduct effective cross-examination over seven years, making recall at a late stage an exception, not a right, and vulnerable to dilatory misuse. Medical incapacity of prior counsel remained unproven. Two lower courts had concurrently refused reopening; no perversity or miscarriage of justice was shown. The petition was treated as an impermissible second revision and therefore not maintainable.

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ISSUES PRESENTED AND CONSIDERED

1. Whether a trial Court may be directed to recall a complainant-witness under Section 311 CrPC after defence evidence is closed and the matter is at final arguments.

2. Whether alleged illness of former counsel and Covid-19 disruptions constitute sufficient grounds to re-open cross-examination or recall a witness at a late stage.

3. Whether concurrent orders declining recall under Section 311 CrPC by the Trial Court and the Revisional Court disclose perversity, patent illegality or failure of justice warranting intervention under inherent powers (Section 482 CrPC / Section 528 BNSS).

4. Whether invocation of inherent jurisdiction after a revisional remedy has been exercised and rejected amounts to a barred second revision contrary to Section 397(3) CrPC / Section 438(3) BNSS.

ISSUE-WISE DETAILED ANALYSIS

Issue 1: Permissibility of recall under Section 311 CrPC at the stage when defence evidence is closed and matter is at final arguments

Legal framework: Section 311 CrPC empowers the Court to summon or recall any person as witness at any stage of the inquiry, trial or other proceedings if deemed essential to the just decision of the case, but recall is not a matter of right.

Precedent Treatment: The Court relies on established jurisprudence that recall at the fag end must be the exception and not the norm; recall must be justified on the touchstone of essentiality for a just decision.

Interpretation and reasoning: The Courts below recorded that numerous, repeated and final opportunities were granted for cross-examination yet the accused failed to conduct effective cross-examination for an extended period (seven years in the record). The Trial Court found nothing in the Section 311 application demonstrating essentiality to arrive at a just decision; the Revisional Court concurred. The Court emphasises that the power under Section 311 should not be used as a dilatory tactic to re-open closed stages of evidence.

Ratio vs. Obiter: Ratio - recall under Section 311 is discretionary and requires demonstration of essentiality; repeated defaults by the party and prolonged inaction negate entitlement to recall. Obiter - general caution against recall being used for delay.

Conclusion: No interference warranted with the exercise of discretion declining recall where ample opportunities were afforded and essentiality was not shown.

Issue 2: Sufficiency of alleged former counsel's medical condition and Covid-19 disruption as grounds for recall/re-opening evidence

Legal framework: Parties are expected to act diligently; dissatisfaction with counsel's conduct or subsequent discovery of counsel's incapacity does not automatically entitle a litigant to re-open closed evidence; pandemic-related procedural adjustments do not relieve litigants of duty to utilize available mechanisms.

Precedent Treatment: The Court follows the view that dissatisfaction with former counsel's performance cannot alone justify recall (citing principles in State (NCT) v. Shiv Kumar Yadav). It also relies on authority disallowing recall based on vague averments (as per the cited Supreme Court guidance in Neha Begum).

Interpretation and reasoning: The allegation of counsel's major heart surgery was unproven on record and not accepted by the lower Courts. The chronology shows opportunities existed before and after Covid periods; the accused even recorded waiver of defence evidence on 21.01.2025. Mere assertions or regret over counsel's performance or Covid disruptions, without evidentiary justification of essentiality, cannot constitute grounds to re-open evidence.

Ratio vs. Obiter: Ratio - medical incapacity of former counsel and Covid-19 disruptions are not sufficient per se; party's own defaults and waiver can estop re-opening. Obiter - emphasis on requiring proof rather than vague pleadings.

Conclusion: Alleged medical condition of previous counsel and Covid-19 do not justify recall where the record shows prolonged default and waiver.

Issue 3: Whether concurrent exercise of discretion by Trial and Revisional Courts discloses such illegality or failure of justice as to permit invocation of inherent jurisdiction

Legal framework: High Court's inherent jurisdiction under Section 482 CrPC / Section 528 BNSS is narrow and cannot be used to substitute or enlarge statutory remedies or to act as a second revisional forum; interference is permissible only in cases of perversity, patent illegality or failure of justice.

Precedent Treatment: The Court applies settled principles that inherent powers cannot be used merely because another statutory remedy has been exhausted or is not available and cites authority (Krishnan v. Krishnaveni) holding that Section 482 cannot circumvent statutory bars on second revisions.

Interpretation and reasoning: Both lower Courts concurrently found no case for re-opening evidence; there is no demonstrated perversity, patent illegality or failure of justice. The record shows multiple opportunities and final closure; thus the exercise of discretion was within bounds. Allowing inherent jurisdiction in such circumstances would convert discretion into entitlement and would evade statutory prohibitions.

Ratio vs. Obiter: Ratio - concurrent discretionary orders refusing recall are not ordinarily interfered with by inherent jurisdiction absent clear illegality or miscarriage. Obiter - reference to the need for such relief only in exceptional circumstances.

Conclusion: Inherent jurisdiction cannot be invoked to overturn concurrent discretionary orders absent illegality or failure of justice; no such grounds exist on the record.

Issue 4: Whether invoking inherent jurisdiction after a revisional remedy has been exercised amounts to a barred second revision

Legal framework: Section 397(3) CrPC / Section 438(3) BNSS bars a second revision where a revision has already been filed and decided; inherent jurisdiction cannot be used to circumvent this statutory bar.

Precedent Treatment: The Court follows authoritative precedent that a second petition under inherent powers to achieve what is effectively a second revision is impermissible (Krishnan principle).

Interpretation and reasoning: The petitioners exhausted revisional remedy before the Revisional Court which dismissed the revision on maintainability and merits. The present invocation of inherent jurisdiction is functionally a second revision; permitting it would nullify the statutory embargo and allow multiplicity of proceedings. No failure of justice or illegality was shown to justify an exception.

Ratio vs. Obiter: Ratio - once a revision remedy has been exercised and decided, a subsequent petition under inherent powers to obtain the same relief is barred unless exceptional circumstances of failure of justice or illegality exist. Obiter - caution against disguising revisional challenge as a miscellaneous petition.

Conclusion: Present petition is a non-maintainable second revision in substance and thus barred; inherent jurisdiction cannot be invoked to relitigate the same grounds.

Overall Conclusion

The Courts below reasonably exercised discretion in refusing recall under Section 311 CrPC; allegations of counsel illness and Covid-19 disruptions were unproven and insufficient; concurrent orders do not exhibit perversity or illegality; and invocation of inherent jurisdiction after dismissal of revision amounts to an impermissible second revision. No ground exists to exercise inherent powers; petition dismissed. (No expression on merits of the underlying trial decision.)

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