# Satendra v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-03
- **Case number:** Application U/S 528 BNSS. No. 42622 of 2025
- **Bench:** Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-v-state-of-u-p-anr-54871
- **Pages:** 10

## Headnote

impugned order rejecting Application u/s 311
Cr.P.C.

Headnotes
Code of Criminal procedure-sec 311/ The
Bharatiya
Nagarik
Suraksha
Sanhita,
2023-sec.348-Application preferred by the
accused applicant to recall PW-1, PW-2 and PW3 for cross examination- witnesses appeared
and examination-in- chief was also recorded-
but the counsel for the applicant did not appear
for cross examination of the witnesses-once the
opportunity for cross- examination was closed-
the application for recalling of the witnesses was
moved after a period of more than 14 year-
moved apparently to cause delay in conclusion
of the trial-rightly been rejected- recall of a
witness already examined should not be a
matter of course -Application rejected. (E-9)

Case Law Cited

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES
show to the Court that he is not liable to
face the trial on account of there being
no evidence against him, cannot be
ignored. Unfortunately, the earlier cases
of the same Court, which we have
referred to above, were brought to the
notice of the Learned Judge. Again, the
Learned Judge has not considered the
true impact of the clause "at any
previous stage of the case", which could
only mean that even with a single
witness, the Magistrate could proceed to
frame the charge."

7.
Considering
the
facts
and
circumstances, the order dated 27.03.2025
is hereby set aside and the matter is
remitted back to the Court concerned to
reconsider the matter and pass a fresh order
in the light of the judgment as discussed
above as expeditiously as possible, without
granting unnecessary adjournments, if there
is no other legal impediment. With the
aforesaid observations, the application is
disposed of.
---------
(2025) 11 ILRA 462
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2025

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 528 BNSS. No. 42622 of 2025

Satendra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rakesh Singh

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Matter pertains to examine the validity of
impugned order rejecting Application u/s 311
Cr.P.C.

Headnotes
Code of Criminal procedure-sec 311/ The
Bharatiya
Nagarik
Suraksha
Sanhita,
2023-sec.348-Application preferred by the
accused applicant to recall PW-1, PW-2 and PW3 for cross examination- witnesses appeared
and examination-in- chief was also recorded-
but the counsel for the applicant did not appear
for cross examination of the witnesses-once the
opportunity for cross- examination was closed-
the application for recalling of the witnesses was
moved after a period of more than 14 year-
moved apparently to cause delay in conclusion
of the trial-rightly been rejected- recall of a
witness already examined should not be a
matter of course -Application rejected. (E-9)

Case Law Cited
1. Mohd. Khalid Versus State of West Bengal,
(2002) 7 SCC 334;
2. Hanuman Prasad (Supra), Natasha Singh vs.
CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri)
828:2013 SCC OnLine SC 444;
3. Rajaram Prasad Yadav vs. State of Bihar and
another, AIR 2013 SC 3081;
4. State (NCT of Delhi) v. Shiv Kumar Yadav,
(2016) 2 SCC 402;
5. State of Haryana vs. Ram Mehar and others,
(2016) 8 SCC 762;
6. Swapan Kumar Chatterjee vs. Central Bureau
of Investigation, (2019) 14 SCC 328;
7. Varsha Garg vs. State of Madhya Pradesh and
Others, 2022 SCC OnLine SC 986
8. Application under Section 482 Cr.P.C. No. 274
of 2022 (Ram Nayak Singh vs. State of U.P. &
Another)
9. State (NCT of Delhi) vs. Shiv Kumar Yadav :
(2016) 2 SCC 402
10. Ratanlal vs. Prahlad Jat, (2017) 9 SCC 340

List of Acts
1. Code of Criminal Procedure, 1973
2. The Bharatiya Nagarik Suraksha Sanhita,
2023

List of Keywords
11 All. Satendra Vs. State of U.P. & Anr.
463
Cross
examination,
opportunity
for
cross-
examination was closed, application for recalling
of the witnesses, delay.

Appearances of parties
Counsel for Applicant(s) : Rakesh Singh,
Counsel for Opposite Party(s) : G.A.

(Delivered by Hon'ble Vivek Kumar
Singh, J.)

1. Heard learned Counsel for the
applicant and Sri Mohd. Afzal, learned
counsel for the state and perused the
record.

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

 "It
is
therefore,
most
respectfully prayed that this Hon'ble
Court may kindly be pleased to allow this
application and quashod the impugned
order dated 23.09.2025 passed by Special
Judge (NDPS Act)/Upper Session Judge,
Court No.7, Mathura in Special Session
Trial No.172 of 2010 (State Of U.P. Vs.
Satendra), arising out of case crime No.
142 of 2010, under section 18/20
N.D.P.S. Act, Police Station Refinery,
District Mathura.

 And further pray that this
Hon'ble court may be pleased to stay
the further proceeding of the Special
Session Trial No.172 of 2010 (State Of
U.P. Vs. Satendra), arising out of case
crime No. 142 of 2010, under section
18/20 N.D.P.S. Act, Police Station
Refinery, District Mathura, during the
pendency of the case, And/or pass such
other and further order which this
Hon'ble court may deem fit and proper
under the facts and circumstances of
the case."
3. The present application has been
filed by the applicant challenging the order
dated 23.9.2025 passed by Special Judge
(N.D.P.S. Act)/Additional Sessions Judge
Court No. 7 Mathura (in short trial court) in
S.S.T. No. 172 of 2010 (State of U.P. vs.
Satendra) on an application preferred by
the accused applicant under section 311 of
Cr.P.C./348 of B.N.S.S. praying therein to
recall PW-1 Anoop Kumar Bhartiya, PW-2
C/C 827 Ravindra Singh and PW-3 Viresh
Kumar for cross examination.

4. The brief facts of the case are to
the effect that the First Information Report
was lodged against the applicant on
28.4.2010 under Section 18/20 of N.D.P.S.
Act as Case Crime No. 142 of 2010 at
Police Station Refinery, District Mathura,
and it is alleged that 40 kg Doda Powder
was recovered from the possession of the
applicant.
The
police
completed
the
investigation and filed charge sheet in this
case and after submission of chargesheet
the case was registered as Special Sessions
Trial No. 172 of 2010 (State of U.P. vs.
Satendra).
Before
the
trial
court,
statement/examination-in-chief of PW-1
Anoop Kumar Bhartiya was recorded on
24.12.2010, examination-in-chief of PW-2
C/C 827 Rajendra Singh was recorded on
7.1.2011 and examination-in-chief of PW-3
S.I. Viresh Kumar was recorded on
19.1.2011, but all the time counsel for the
applicant did not turn up in the trial court to
cross examine the witnesses, consequently
the opportunity for cross examination was
closed by the trial court on the aforesaid
dates. Copy of the evidence of aforesaid
witnesses has been appended as Annexure
No. 3 to this application. Last witness i.e.
PW-3 S.I. Viresh Kumar was examined by
the prosecution on 19.1.2011 and the trial
court waited till 3:50 p.m., but the counsel
did not turn up in the trial court to cross
464 INDIAN LAW REPORTS ALLAHABAD SERIES
examine this witness and the opportunity of
cross examination was closed, thus, the
application
under
section
311
of
Cr.P.C./348 B.N.S.S. for recall of PW-1,
PW-2 and PW-3 was moved after more
than 14 years. In the application the
specific points for cross examination of the
above witnesses have not been mentioned.
The trial court upon due consideration of
the facts of the case, rejected the
application under section 311 of Cr.P.C./
348 of B.N.S.S. filed by the applicant for
recalling of PW-1 Anoop Kumar Bhartiya,
PW-2 C/C 827 Rajendra Singh and PW-3
S.I. Viresh Kumar for cross examination
vide impugned order dated 23.9.2025. The
relevant portion of the order dated
23.9.2025 is extracted hereinunder:

"उपरोक्त प्रकरण मेंप्राथी / अमभयुक्त सत्येन्र की ओर
सेप्राथटना पत्र 63 ख इस आशय का प्रस्तुत मकया गया हैमक उक्त
मुकदमेमेंकेवल तीन गवाह हो चुके हैं और उसके उपरान्त पत्रावली
धारा 313 दे०प्र०सां० के मलयेमनयत ह,ैै लेमकन अमभयुक्त
केअमधवक्ता द्वारा तीनों गवाहों सेप्रमत परीिा नहीं हो पायी ह,ैै
क्योंमक मदनाांक 19-01-2011 को पी०र्ब्लू०-3 ७०मन० वीरेन्र
कुमार जब साक्ष्य हतुैे न्यायालय उपमस्थत हुयेथेतभी अमभयुक्त
केअमधवक्ता नेगवाहों सेप्रमत परीिा करनेहतुैे प्राथटना पत्र मदया था,
लेमकन न्यायालय द्वारा उक्त प्राथना पत्र मनरस्त कर मदया। अतः उक्त
पररमस्थमतयों मेंसािी पी०र्ब्लू० 1, पी०र्ब्लू०-2 व पी०र्ब्लू०-3
सेप्रमतपरीिा मकयेजानेहतुैे उन्हें तलब मकये जाने की याचना की
गयी ह।ैै

 मवद्वान सहायक मजला शासकीय अमधवक्ता
िौजदारी की ओर सेप्राथटना पत्र का चोर मवरोध करतेहुयेप्राथटना पत्र
को मनरस्त मकये जाने की याचना की गयी ह।ैै

 प्राथटना पत्र 63 ख पर अमभयुक्त केमवद्वान अमधवक्ता
एवां मवद्वान सहायक मजला शासकीय अमधवक्ता िौजदारी को सुना
एवां पत्रावली का पररशीलन मकया।

 पत्रावली के पररशीलन सेस्पष्ट हैमक मदनाांक 1901-2011 को अमभयुक्त के मवद्वान अमधवक्ता द्वारा सािीगण
पी०र्ब्लू०-1 व पी०र्ब्लू०-2 सेप्रमतपरीिा करनेका अवसर प्रदान
मकयेजानेहतुैे प्रस्तुत प्राथटना पत्र को न्यायालय द्वारा मनरस्त मकया
जा चुका हैएवां उक्त मदवस केआदेश पत्र सेयह भी स्पष्ट हैमक उक्त
मदवस को उपमस्थत सािी से भी अमभयुक्त के मवद्वान अमधवक्ता
प्रमतपरीिा करनेहतुैे तैयार नहीं रह।ैे इसके अमतररक्त उसी मदनाांक
को सािी पी०र्ब्लू०-3 सेअमभयुक्त के मवद्वान अमधवक्ता द्वारा प्रमत
परीिा न करनेपर उनका प्रमत परीिा करनेका अवसर NA528
No. 42622 of 2025 2 न्यायालय द्वारा समाप्त मकया गया
ह,ैै मजन आदेशों केमवरूद्ध आज तक कोई दामण्र्क पुनरीिण
प्रस्तुत नहीं मकया गया ह,ैै न ही उक्त आदेश मकसी पुनरीिण
न्यायालय सेआज तक मनरस्त हुयेहैं।हैं बी०एन० एस०एस० की
धाराओां में न्यायालय द्वारा पाररत स्वांय केमकसी आदेश को
पुनटबटलोमकत कर आदेश पाररत मकयेजानेका कोई प्रावधान नहीं ह।ैै
प्राथटना पत्र आधारहीन ह तथा ैै मनरस्त मकये जाने योग्य ह।ैै

आदेश
 प्राथटना पत्र 63 ख मनरस्त मकया जाता ह।ैै
पत्रावली वास्तेबयान अमभयुक्त अन्तगटत धारा 313 दां०प्र०सां० 1310- 2025 को पेश हो।"

5. In the aforesaid background of
the case, the present application under
section 528 of BNSS has been moved by
the applicant.

6. 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.

7. Learned counsel for the State
opposed the application and stated that the
application
under
section
311
of
Cr.P.C./348 of B.N.S.S. 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
11 All. Satendra Vs. State of U.P. & Anr.
465
moved after more than 14 years and the
delay has not been properly explained by
the applicant. Prayer is to affirm the
impugned
order
and
dismiss
the
application.

8. I have considered the submission
advanced by the learned counsel for the
parties and perused the record as well as
the impugned order dated 23.9.2025,
passed by the trial court in the aforesaid
case

9. 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).

10. 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.

11. 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.

12. 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.

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

 "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
466 INDIAN LAW REPORTS ALLAHABAD SERIES
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
of
his
judicial
powers,
can
be
a
persuading factor for granting such
adjournments lavishly, that too in a casual
manner."

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

 "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.

 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.

 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)

 "6.Normally, at this late stage, we
would be disinclined to 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
11 All. Satendra Vs. State of U.P. & Anr.
467
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."

 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 crossexamination.

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

 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
468 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 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 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.

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

 (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;

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

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

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

 (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;

 (vi) Mere fact that the accused
was in custody and that he will suffer by the
11 All. Satendra Vs. State of U.P. & Anr.
469
delay could be no consideration for
allowing recall of witnesses, particularly at
the fag end of the trial;

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

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

 (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;

 (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 is not
granted."

15. 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:-

 "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.

 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."

16. 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.

17. The power conferred has been
held to be discretionary and is to enable 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
470 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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

 "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 un-called 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."

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

 "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 reexamine 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 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."

20. Upon the consideration of
aforesaid facts as also the settled law on the
issue, this Court does not find any illegality
in the impugned order dated 23.9.2025. It is
for the reason that to the view of this court
the application under section 311 of
Cr.P.C./348 of B.N.S.S. was preferred by
the applicant only to delay the proceeding
pending before the trial court and no
plausible explanation of delay of more than
14 years has been given by the applicant in
moving the application under section 311
of Cr.P.C. PW-1 appeared in the trial court
and his statement/examination-in- chief
was recorded on 24.12.2010. Similarly the
PW-2 appeared in the trial court on 7.1.
2011 and his examination-in- chief was
also recorded but the counsel for the
applicant
did
not
appear
for
cross
examination of the witnesses and once the
opportunity for cross- examination was
closed, the application for recalling of the
witnesses was not moved on the next date
or soon after passing the order dated
24.12.2010
and
7.1.
2011,
whereby
opportunity for cross examination of
11 All. Krishna @ Kishna Vs. State of U.P.
471
aforesaid witnesses were closed.
Similarly PW-3 Viresh Kumar appeared in
the trial court on 19.01.2011 and his
examination-in- chief was recorded and the
court waited till 3:50 p.m. but counsel for
the applicant did not appear . It appears that
the applicant's counsel was not willing and
ready to cross examine these witnesses and
after a period of more than 14 years, he
moved a misconceived application on
26.8.2025 which was rightly rejected by the
learned trial court vide order dated
23.9.2025.

21. 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. 22. As there
is no illegality in the order of the trial court,
the application under Section 528 of
B.N.S.S. lacks merit and the same is hereby
rejected.
----------
(2025) 11 ILRA 471
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Bail Application No. 33908 of
2025

Krishna @ Kishna ...Applicant
Versus
State of U.P. ....Opposite Party

Counsel for the Applicant:
Mithilesh Kumar Shukla

Counsel for the Opposite Party:
G.A.

Issue for Consideration
Issue pertains to whether, having regard to the
nature and gravity of the allegations, the
medical evidence on record including the
apparent discrepancy between the CT scan and
X-ray reports, the stage of the investigation
culminating in filing of the charge-sheet, the
antecedents of the applicant, and the settled
principles governing grant of bail, the applicant
was entitled to be enlarged on bail during the
pendency of the trial, or whether his continued
judicial custody was necessary in the interests
of justice.

Headnotes
Bharatiya Nyaya Sanhita, 2023 - ss. 110,
115(2), 118(1), 352, 351(2) - The facts of
the case are that the applicant, Krishna @
Kishna, was implicated in Case Crime No.
278 of 2025, registered at Police Station
Shikohabad, District Firozabad, u/s 110,
115(2),
118(1),
352
and
351(2)
of
Bharatiya Nyaya Sanhita, in relation to an
incident in which the injured Sunny
sustained multiple injuries including a
grievous injury on the skull - During
investigation,
medical
examination
initially indicated absence of bony injury
on X-ray, whereas a CT scan conducted
earlier revealed a comminuted depressed
fracture of the frontal sinus, giving rise to
serious
discrepancies
in
the
medical
record - The applicant was arrested and
remained in judicial custody, whereupon
he moved the instant bail application
seeking release during the pendency of
trial, owing to apparent inconsistencies
between the CT scan and X-ray reports
and the manner of investigation, the High
Court summoned the Investigating Officer
and the treating doctor, directed enquiries
by the Senior Superintendent of Police and
the Chief Medical Officer, and examined
the conduct of the investigation and
preparation of medical reports - After
perusal of the enquiry reports, noting that
the charge-sheet had been filed, the
applicant had no criminal antecedents,
and no specific role was attributed to him
in causing the grievous injury, the Court