Dismissed

Dharmendra Mourya v. State of U.P. and Another

Allahabad HC11 Nov 2025NA528/43911/2025

Case brief

AI extract

What is this about?

The Allahabad High Court disposed of an application under Section 528 BNSS challenging the trial court's rejection of a request to recall the Investigating Officer for cross-examination. The Court held that a belated change of counsel is not a ground for recalling witnesses and the application was dismissed as an attempt to delay the trial.

What did the court decide?

Application under Section 528 BNSS rejected; Trial court directed to conclude trial within two months.

Dharmendra Mourya vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 528 BNSS No. - 43911 of 2025

Dharmendra Mourya

.....Applicant(s)

Versus

State of U.P. and Another

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.....Opposite Party(s)

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Counsel for Applicant(s)	: Sitaram Yadav
Counsel for Opposite Party(s)	: G.A.

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Court No. - 78

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HON'BLE VIVEK KUMAR SINGH, J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the records.

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The present application under Section 528 of B.N.S.S. has been filed with the following prayers:-

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"It is therefore most respectfully prayed that this Hon'ble court may graciously be pleased to allow the instant application and quash the order dated 19.08.2025 Passed by the Additional Session Judge Court no 5 Varanasi in Session Trial no 563 of 2014 (State of U.P. Versus Vijay Yadav and others) arising out of case crime no.135 of 2014 under section 60/62, 63 Excise Act and section 272, 273 of IPC Police Station Sarnath District Varanasi.

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It is further prayed that this Hon'ble court may graciously be pleased to direct the trial court to reconsider the application under section 311 Cr.p.c and recall the pw 4 for cross examination in Session Trial no 563 of 2014 (State of U.P. Versus Vijay Yadav and others) Pending before the Court of Additional Session Judge court no 5 Varanasi, arising out of case crime no.135 of 2014 under section 60/62, 63 Excise Act and section 272,273 of IPC Police Station Sarnath District Varanasi, During the pendency of the present Criminal Misc. Application otherwise applicants shall suffer irreparable loss and injury."

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The present application has been filed by the applicant challenging the order dated 19.08.2025 passed by the Additional Sessions Judge, Court

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No.5, Varanasi (in short trial court) in S.T. o. 563 of 2014 (State of U.P. Vs. Vijay Yadav and others), arising out of Case Crime No.135 of 2014, under Section 60/62, 63 Excise Act and Sections 272 and 273 IPC, Police Station Sarnath, District Varanasi, whereby the application preferred by the accused/applicant under Section 311 Cr.P.C. praying therein to recall PW-4, Parv Kumar Singh for cross examination, has been rejected.

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The brief facts of the case are to the effect that the first information report was lodged against the applicant on 17.06.2024 at 2:55 AM, under Sections 60/62, 63 Excise Act and Sections 272 and 273 IPC as Case Crime No.135 of 2024 in respect of alleged incident dated 16.06.2014 at 23:15 PM. It is alleged in the FIR that one Vijay Yadav was arrested on the spot by the police, who was preparing illicit liquor. The applicant was also arrested by the police alongwith aforesaid co-accused. The police prepared recovery memo, completed the investigation, and submitted the charge-sheet before the trial court on 13.08.2014. The trial court framed the charges and thereafter the witnesses were summoned to adduce evidence. PW-4, Parv Kumar Singh, who happens to be Investigating Officer of the present case, appeared in the trial court and his statement in the form of examination-inchief was recorded on 20.07.2022. His statement/ examination-in-chief was again recorded on 29.11.2022 and the trial court waited for the counsel for the applicant till 3:30 PM, but no one appeared to cross examine this witness. Therefore, opportunity to cross examine PW-4, Parv Kumar Singh was closed by the trial court.

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After the examination of other witnesses, the newly appointed counsel for the applicant moved an application dated 23.07.2025, under Section 311 Cr.P.C., wherein he stated that the case is fixed for argument and new counsel has been appointed by the applicant, and during preparation for argument, the newly appointed counsel came to know that the investigating officer/PW-4, Sri Parv Kumar Singh, was examined on 20.07.2022 and 29.11.2022, and he proved the site plan, charge-sheet and other documents, but the opportunity of cross examination was closed by the trial court on 29.11.2022 and earlier counsel did not moved any application for recalling the said witness for cross examination due to the reasons best known to him, while the cross examination of the said witness is essential for just decision of the case. It is further mentioned in application dated 23.07.2025 that power under Section 311 Cr.P.C. may be exercised at any stage before pronouncement of judgment. It is further mentioned that in case the

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Investigating Officer/ PW-4, Parv Kumar Singh is not cross examined due to negligence of earlier counsel, the applicant will suffer illegal injury and would not be able to defend himself in the trial court. In last, it is prayed in the application dated 23.07.2025 that aforesaid witness/ PW-4, Parv Kumar Singh be recalled for cross examination. The aforesaid application dated 23.07.2025 moved under Section 311 Cr.P.C. was rejected by the trial court vide order dated 19.08.2025, therefore, being aggrieved by the order dated 19.08.2025, the present application has been filed by the applicant.

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The learned counsel for the applicant submitted that as per settled principle of law, the application ought to have been allowed by the trial court and the order impugned is against the principles settled in this regard as also the observations made by Hon'ble Apex Court in regard to expression "Fair Trial". As such, interference of this Court is required in the matter.

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Learned counsel for the State opposed the application and stated that the application under section 311 of Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in the circumstances of the case, application has rightly been rejected by the trial court. The application for recalling of the witnesses has been moved after more than two and a half years and the delay has not been properly explained by the applicant. Prayer is to affirm the impugned order and dismiss the application.

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I have considered the submission advanced by the learned counsel for the parties and perused the record as well as the impugned order dated 19.08.2025, passed by the trial court in the aforesaid case.

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The principle related to recall of the witnesses under section 311 of Cr.P.C. has been settled by Hon'ble Apex Court in the case (s) of Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad Yadav vs. State of Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

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It is well settled by catena of decisions by the Hon'ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and the discretion, given to the court in this regard has to be exercised judicially to prevent failure of justice. 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.

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The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.

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The jurisdiction under Section 482 of the Code is extraordinary and it can be used only in such cases where there is gross injustice or clear abuse of process of law. It can not be used to help such a person who is not cooperating in fair trial. Such power cannot be invoked to harass the witness who has already been examined or for causing delay in the trial.

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In the case of Mohd. Khalid (Supra) , the Hon'ble Apex Court observed as under:-

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"9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension

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of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."

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The relevant paragraphs of the judgment passed in the case of State (NCT of Delhi) (Supra) are extracted hereunder:-

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"10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.

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11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case.

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14. In Hoffman Andreas case [Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 : 2001 SCC (Cri) 1488] , the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of the illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed : (SCC p. 432, para 6)

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"6.Normally, at this late stage, we would be disinclined to

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open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."

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15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

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16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which

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needs to be looked into by the authorities concerned including the Law Commission and the Bar Council of India.

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27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. 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 uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.

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28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that

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exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.

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29. We may now sum up our reasons for disapproving the view of the High Court in the present case:

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(i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap;

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(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel;

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(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;

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(iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses;

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(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;

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(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;

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(vii) Mere change of counsel cannot be ground to recall the witnesses;

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(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;

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(ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;

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(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer

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is not granted."

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In the case of Swapan Kumar Chatterjee (Supra) , a note of caution was sounded and the same can be deduced from paragraphs 11 and 12 of the report, which are as under:-

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"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

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12. 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."

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15.A. In judgment of Sate of Haryana Vs. Ram Mehar & Others (Supra) ,

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it has been held by the Apex Court that Witness cannot be recalled u/s 311 CrPC on the ground of illness of counsel of accused or change of counsel. Merely because the accused persons are imprison and they changed their counsel due to his illness and because of the failure of the counsel to put certain questions to the witnesses, a witness cannot be recalled u/s 311 CrPC on such grounds. Concept of fair trial cannot be limitlessly stretched.

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The power to summon material witnesses under Section 311 Cr.P.C. which falls under Chapter XXIV containing the general provisions as to inquiries and trials has been held to confer a very wide power on the courts for summoning witnesses and accordingly the discretion conferred is to be exercised judiciously as wider the power the greater is the necessity for the application of judicial mind.

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The power conferred has been held to be discretionary and is to enable

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the court to determine the truth after discovering all relevant facts and obtaining proper proof thereof to arrive at a just decision in the case. The power conferred under Section 311 is to be invoked by the court to meet the ends of justice, for strong and valid reasons and it is to be exercised with great caution and circumspection. The determinative factor in this regard would be whether the summoning or recalling of the witness is in fact, essential to the just decision of the case keeping in view that fair trial - which entails the interests of the accused, the victim and of the society - is the main object of the criminal procedure and the court is to ensure that such fairness is not hampered or threatened in any manner.

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In State (NCT of Delhi) vs. Shiv Kumar Yadav : (2016) 2 SCC 402 , it has been held that: -

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"Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. 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 uncalled for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

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19. In Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340 , it was held that: -

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"17. 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 re-examine 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

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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."

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Upon consideration of aforesaid facts as also settled law on the issue, this Court does not find any illegality in the impugned order dated 19.08.2025. It is for the reason that to the view of this Court the application under Section 311 of Cr.P.C. was preferred by the applicant only to delay the proceeding pending before the trial court and no plausible explanation of delay of more than two and a half years has been given by the applicant in moving the application under Section 311 Cr.P.C.

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When the cross examination of PW-4/ Investigating Officer, Parv Kumar Singh was closed on 29.11.2022, no application was filed to recall this witness and thereafter three more witnesses were examined in the trial court in a period of two years and cross examination was done by the counsel for the applicant, but no application was filed for recalling of aforesaid witness/ PW-4, Parv Kumar Singh and it seems that earlier counsel of the applicant was not willing to cross examine this witness to the best reason known to him. The prosecution has closed its evidence and the statement of applicant/ accused was recorded under Section 313 Cr.P.C. on 20.05.2025 and prior to examination of applicant/ accused under Section 313 Cr.P.C., no application was moved by the applicant/ accused. Now the case is fixed for argument and only for the purpose of delay, a misconceived application was filed by the applicant on 23.07.2025, which, in view of this Court, was rightly rejected by the trial court vide order dated 19.08.2025. It appears that the newly appointed counsel wants to start retrial of the case and he is not willing to argue the case. On this ground that an accused has changed his counsel, the application under Section 311 Cr.P.C. at the stage of final hearing cannot be allowed. The concept of fair trial cannot be limitlessly stretched.

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From the aforesaid discussion calling of the witnesses at this stage does not appear to be essential for a just decision of the case. The application has been moved apparently to cause delay in conclusion of the trial and it has rightly been rejected by the trial court.

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