S.311 CrPC | Court Can Recall Material Witnesses Even After Closing Evidence, Bar On Review Doesn't Apply During Trial: Rajasthan High Court
The Rajasthan High Court has held that the power of recall under Section 311 CrPC can be exercised by criminal courts even after the evidence of both sides is closed. It held that the consideration under the provision is not whether the evidence is closed, but whether the concerned evidence appeared essential for a just decision of the case.
The bench of Justice Anil Kumar Upman further opined that restriction under Section 362 CrPC, on criminal courts altering or reviewing their judgment or final orders once signed, does not prevent the Court from exercising its independent power under Section 311 CrPC during pendency of the trial and before the pronouncement of the final order/judgment.
“…during the pendency of the trial and before the final judgment is pronounced and signed, the Court is not rendered functus officio merely because the evidence of a particular witness had earlier been closed. The provisions of Sections 311 and 362 Cr.P.C. operate in distinct fields and are required to be harmoniously construed. Hence, Section 362 Cr.P.C. cannot be invoked as an absolute bar against exercise of power under Section 311 Cr.P.C. to summon, recall or re-examine a witness whose evidence had earlier been closed, where the Court is satisfied that such evidence is essential for arriving at a just decision in the case.”
For context, the Court was hearing a challenge against the order of the trial court that dismissed petitioner's application under Section 311 CrPC.
The petitioner-complainant had lodged an FIR in which he, along with other material witnesses were examined. Subsequently, certain additional accused persons were implicated, and charges were framed against them. However, in relation to the additional accused persons, the petitioner and other witnesses were not re-examined, and the evidence was closed by the trial court.
In this regard, the petitioner submitted an application under Section 311 CrPC, which was dismissed by the trial court on the ground that, the power under the provision could not be allowed once the prosecution evidence was closed. Further, it was opined that allowing such application was not permissible in light of Section 362 CrPC.
Hence, the present petition was filed before the Court, challenging the trial court's order.
After hearing the contentions, the Court observed that Section 311 CrPC conferred wide powers intended at ensuring that the Court had all material evidence required for reaching a just decision in the case.
“The crucial consideration under Section 311 Cr.P.C is not merely the stage at which the application is filed, but whether the evidence of the person sought to be examined appears to the Court to be essential for a just adjudication of the case.”
The Court made a reference to the Supreme Court decision in Mohanlal Shamji Soni v Union of India, in which it was held that the criminal court had ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides were closed.
The Court also rejected the argument of Section 362 CrPC, and held that there was no conflict between Section 311 and Section 362, since the latter restricted the Court from altering or reviewing its judgment after it was signed. Section 311 was an independent power exercisable at any stage of the inquiry or trial.
In this background, the Court concluded that in the present case, since the witnesses that sought to be re-examined were not newly introduced, but were material prosecution witnesses who had already been examined earlier, the application under Section 311 CrPC should have been allowed.
Accordingly, the trial court's order was set aside with a direction to summon and re-examine the concerned witnesses.
Title: Sattar v State of Rajasthan
Citation: 2026 LiveLaw (Raj) 358