Lawyer's Improper Cross-Examination Is Not by Itself a Ground to Recall Witnesses under Section 311 CrPC: Supreme Court

The Supreme Court dismissed the petition challenging rejection of an application under Section 231(2) read with Section 311 of the Code of Criminal Procedure, 1973. The Court held that a vague allegation that the earlier lawyer had not properly cross-examined prosecution witnesses was not, by itself, a sufficient ground to recall those witnesses.

Background of the case

The petitioners challenged the judgment and order dated 19 January 2024 passed by the Gauhati High Court in Criminal Petition No. 561 of 2021. The High Court had dismissed their petition under Section 482 CrPC and affirmed the order dated 9 March 2021 passed by the Sessions Judge, Dibrugarh in Petition No. 1869 of 2019 in Sessions Case No. 202 of 2018.

The petitioners were facing trial for offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860. After the trial had substantially progressed, they filed an application under Section 231(2) read with Section 311 CrPC seeking further cross-examination of prosecution witnesses Nos. 1, 2, 3, 6, 7 and 8. The Sessions Court rejected the application on 9 March 2021.

Petitioners' contention

Counsel for the petitioners argued that the Trial Court and the High Court had proceeded on an incorrect premise by treating the request as one for further cross-examination that could arise only after re-examination. It was contended that since the prosecution had not re-examined the witnesses, the defence was not seeking re-cross-examination in that sense.

Supreme Court's reasoning

"On a perusal of the subject application filed by the petitioners in the trial Court by invoking the provisions under Section 231(2) read with Section 311 CrPC, we find that other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial Court to invoke the power under Section 311 CrPC."

The Court further observed that the request to recall and re-examine the witnesses amounted to an attempt to fill a lacuna. It found nothing on record to show that refusal to summon the witnesses for further cross-examination would cause grave prejudice to the accused or that recalling them was essential for a just decision of the case.

"Apparently thus, the prayer made by the petitioners in the application to recall and re-examine the witnesses was nothing but an attempt to fill in the lacuna."

The Supreme Court concluded that the impugned order did not suffer from any infirmity and dismissed the Special Leave Petition as meritless.

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Neha Begum & Ors. v. The State of Assam & Anr., Special Leave Petition (Crl.) No. 3910 of 2024 — Order dated 2 September 2024

This page reports and summarises the Supreme Court order dated 2 September 2024. It does not update the legal position beyond the contents of that order.