S.311 CrPC Power Can't Be Invoked To Fill Up Lacunae In Defence : Supreme Court Quashes Order To Recall Rape Victim For Cross Examination

The Supreme Court has set aside a Tripura High Court order that permitted the recall of a rape victim for further cross-examination, holding that the accused had already been afforded ample opportunity to question the witness and that reopening her testimony after a four-year delay would cause undue hardship to the victim.

A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma allowed an appeal filed by the State of Tripura against the High Court's March 14, 2024 order, which had directed the trial court to permit further examination of the prosecutrix with reference to call detail records (CDRs).

Emphasising the rights and dignity of victims, the Court observed that directing another recall would inflict further and unjustifiable hardship upon the prosecutrix, who had already undergone deposition and cross-examination on four separate occasions. It cautioned that witnesses, particularly victims of serious offences, cannot be expected to repeatedly appear in court to face cross-examination.

"It is important to mention that the prosecutrix has already been subjected to the ordeal of deposition and cross- examination on four separate occasions before the Trial Court, in addition to having her statement recorded during investigation and before the learned Magistrate under Section 164 CrPC. Directing recall would inflict further and unjustifiable hardship upon the prosecutrix. The witnesses cannot be expected to face hardship of appearing in court repeatedly, particularly in sensitive cases. 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."

The Court also reiterated that the power under S.311 CrPC can be used only "sparingly" and that "it cannot be exercised merely to fill up lacunae in the defence case."

The case arises from a 2016 FIR alleging offences under Sections 342, 376(1) and 506 of the Indian Penal Code. During the trial, the prosecutrix was examined and cross-examined in 2018, and was subsequently recalled, re-examined and re-cross-examined in 2019 pursuant to an earlier order of the High Court.

In December 2023, nearly four years after completion of her cross-examination, the accused moved an application under Section 311 of the Code of Criminal Procedure seeking to recall the prosecutrix once again. The application proposed 94 questions and contended that certain aspects emerging from the call detail records could not be put to the witness earlier due to oversight.

The trial court rejected the plea, observing that the prosecutrix had already undergone extensive examination and that the application appeared to be an attempt to delay a trial that had been pending since 2017. However, the High Court overturned that decision and permitted further cross-examination.

Reversing the High Court's ruling, the Supreme Court reiterated that while Section 311 CrPC confers wide powers to summon or recall witnesses, such powers must be exercised sparingly and only when essential for a just decision of the case. The Court relied on earlier precedents holding that the provision cannot be invoked to fill lacunae in the prosecution or defence case.

The Court also rejected the defence argument based on the call detail records, pointing out that the CDRs had been filed by the prosecution along with the charge sheet and had remained part of the trial record throughout. Therefore, the defence was aware of the material and could have questioned the prosecutrix about it during earlier cross-examinations.

Allowing the State's appeal, the Supreme Court restored the trial court's February 6, 2024 order rejecting the recall application and directed that the trial be concluded by the end of the year, subject to the trial court's convenience.

Case:  State of Tripura v. Panna Ahmed  

Citation : 2026 LiveLaw (SC) 563

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