Allahabad HC Upholds Fair Trial: Orders Recall of PW-12 for Cross-Examination Under S.311 Cr.P.C., Citing No Intent to Delay by Defence - 2025-02-14

Covering Law & Justice.

Allahabad High Court Intervenes to Allow Cross-Examination of Prosecution Witness, Emphasizes Fair Trial

Lucknow, U.P. - The Allahabad High Court, Lucknow Bench, recently underscored the importance of ensuring a fair opportunity for cross-examination in criminal trials. In a significant ruling, Hon'ble Mr. Justice Saurabh Lavania allowed an application filed under Section 482 of the Criminal Procedure Code (Cr.P.C.), setting aside portions of trial court orders that had denied the applicants the chance to cross-examine a key prosecution witness, P.W.12 Dr. Shivmani .

The Court found that interference was warranted, particularly noting that there appeared to be no intention on the part of the applicants to delay the trial proceedings.

Background: The Dispute Over Witness Cross-Examination

The application, U/S 482 No. - 1300 of 2025, was filed by Anil Verma and Another, challenging orders dated 26.11.2024 and 21.12.2024 issued by the Additional Sessions Judge/Fast Track Court IInd, Faizabad/Ayodhya. These orders pertained to Session Trial No. 253 of 2022 (State vs. Arvind Verma and Others).

The primary grievance of the applicants was the trial court's refusal to allow the recall of Prosecution Witness No. 12 (P.W.12), Dr. Shivmani , for cross-examination, an application made under Section 311 Cr.P.C.

The timeline of events leading to the High Court's intervention is as follows:

* 07.11.2024: The examination-in-chief of P.W.12, Dr. Shivmani , commenced around 3:55 PM and concluded by approximately 4:30 PM. As no one appeared for the defence to cross-examine the witness, the trial court closed the opportunity.

* 25.11.2024: The defence filed an application under Section 311 Cr.P.C. seeking the recall of P.W.11 (Inspector Sumit Srivastava) and P.W.12 (Dr. Shivmani ) for cross-examination.

* 26.11.2024: The trial court rejected this application in its entirety.

* 21.12.2024: On a subsequent application, the trial court reconsidered its earlier decision. It allowed the recall of P.W.11, Inspector Sumit Srivastava (subject to costs), acknowledging a typographical error in a previous plea regarding counsel's absence. However, it maintained its refusal to recall P.W.12, Dr. Shivmani .

Trial Court's Reasoning for Denial

The trial court, in its order dated 26.11.2024, noted that P.W.12 Dr. Shivmani , a radiologist considered a "formal witness," had testified via video conferencing. The examination-in-chief began late in the afternoon. Despite the opportunity, the defence neither sought an adjournment nor appeared for cross-examination. The trial court emphasized that the case was part of an "action plan" for speedy disposal and that significant resources were involved in arranging for a witness to appear via VC. It concluded that the grounds presented for recalling P.W.12 were insufficient. This reasoning for P.W.12 was effectively reiterated in the subsequent order of 21.12.2024.

High Court's Rationale for Interference

Justice Saurabh Lavania , after considering the submissions and legal precedents, found merit in the applicant's plea concerning P.W.12. The High Court highlighted key factors for its decision:

Timing of Examination: The examination-in-chief of P.W.12 on 07.11.2024 started at 3:55 PM, very close to the official court closing time of 4:00 PM (as per the High Court's own circular regarding district court functioning hours).

No Intent to Delay: The Court observed, "this Court finds that there is no intention of the applicant to delay the proceedings in issue." This was a crucial factor in assessing the bona fides of the recall application.

Fair Opportunity: The circumstances surrounding the closure of the cross-examination opportunity for P.W.12, particularly the late start of the examination, weighed in favour of granting another chance to the defence.

The High Court's judgment noted (from Para 5(i)): > "(i) On 07.11.2024, the examination-in-chief of P.W.12/Dr. Shivmani was started at about 3:55 PM and it appears from the record that the same was concluded at about 4:30 PM and on that day no one put in appearance on behalf of the defence for the purposes of cross-examination of this witness and therefore, the trial court closed the opportunity of cross-examination of P.W.12/Dr. Shivmani ."

And from Para 6: > "Taking note of the aforesaid as also that as per the Circular of this Court the courts in all the District shall function from 10.30 A.M. to 4.00 P.M. even during the month of May and June, this Court finds that there is no intention of the applicant to delay the proceedings in issue."

Legal Principles Guiding Witness Recall

The High Court referred to a series of Supreme Court judgments while arriving at its decision, including State (NCT of Delhi) Vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402 ; Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, 2019 (14) SCC 328 ; Natasha Singh vs. CBI, (2013) 5 SCC 741 ; State of Haryana vs. Ram Mehar and others; (2016) 8 SCC 762 ; and Varsha Garg vs. State of Madhya Pradesh and Others; 2022 SCC OnLine SC 986 . These precedents generally affirm that the power under Section 311 Cr.P.C. to recall witnesses is extensive but must be exercised judiciously to meet the ends of justice, ensuring a fair trial.

Final Order and Directions

The Allahabad High Court allowed the application with the following directions: 1. The impugned orders dated 26.11.2024 and 21.12.2024 passed by the Additional Sessions Judge/Fast Track Court-IInd, District Faizabad/Ayodhya, in Sessions Trial No. 253 of 2022, were set aside specifically concerning the refusal to recall P.W.12/Dr. Shivmani . 2. The trial court is directed to fix a date for the cross-examination of P.W.12/Dr. Shivmani by the applicant. 3. Efforts should be made to conduct the cross-examination on the next date fixed. 4. A crucial condition was imposed: if the applicant's counsel fails to cross-examine P.W.12/Dr. Shivmani on the newly fixed date, the trial court shall proceed with the matter without providing any further opportunity. 5. The applicant is required to deposit Rs. 2,000/- before the trial court to cover the expenses of the witness. Any remaining amount from this deposit is to be provided to the District Legal Services Authority.

This judgment reaffirms the judiciary's commitment to safeguarding the principles of natural justice and fair trial, ensuring that the defence is not unduly deprived of the right to cross-examine witnesses, especially when circumstances suggest no deliberate attempt to stall proceedings.