Delhi HC Rejects Police Plea to Recall Witness in Riot Case - 2025-10-13

Delhi High Court Rejects Police Plea to Recall Witness, Cites 'No Merit' in 2020 Riot Case

New Delhi – In a significant procedural development in the ongoing 2020 North-East Delhi Riots trials, the Delhi High Court has dismissed a petition filed by the Delhi Police. The plea sought to challenge a trial court's decision that denied the prosecution's request to recall one of its own witnesses for re-examination in a prominent arson case involving former Aam Aadmi Party (AAP) leader Tahir Hussain.

Justice Neena Bansal Krishna, delivering a concise but firm order after hearing arguments, stated, "Submissions heard, record perused. Dismissed. No merit." The decision upholds the Karkardooma trial court's order from February 7, reinforcing judicial reluctance to permit the recall of witnesses in a manner that could be perceived as an attempt to fill gaps in the prosecution's narrative. The case, titled STATE OF NCT OF DELHI V/s MOHD. TAHIR HUSSAIN & ORS. , pertains to the alleged looting, vandalism, and setting ablaze of a shop in the Karawal Nagar area during the communal violence that engulfed the city in February 2020.

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The Crux of the Contradiction: A Tale of Two Testimonies

The legal challenge stemmed from a critical discrepancy in the testimonies of two police officers regarding the timeline of the arson incident. The prosecution's case is built on the premise that the shop was torched on February 25, 2020.

The controversy began with the deposition of Prosecution Witness-23 (PW-23), Sub-Inspector (SI) Shiv Charan Meena, on January 28. SI Meena testified that he responded to a call on the night of February 24, 2020, between 11:30 PM and midnight, and found the shop in a "burnt condition" with its shutter broken. This testimony directly contradicted the prosecution's established timeline.

Days later, on February 4, the prosecution examined PW-26, Head Constable Ankit Malik, who had accompanied SI Meena on the night in question. Head Constable Malik’s testimony aligned with the prosecution's version of events. He deposed that when they visited the site on February 24, the shop was in a "normal condition." He further stated that the shop was found in a burnt state the following day, February 25.

Faced with this direct conflict between the accounts of two of its own witnesses, the prosecution moved an application before the trial court to recall PW-23. The objective was twofold: to seek a "clarification" from SI Meena about the date and, more significantly, to obtain permission to ask him leading questions and subsequently declare him a hostile witness for not supporting the prosecution's case. The trial court, however, rejected this application on February 7, prompting the police to escalate the matter to the Delhi High Court.

Legal Arguments Before the High Court

Prosecution's Stance: An Inadvertent Error

Representing the Delhi Police, the counsel argued that the recall of PW-23 was essential to resolve the evidentiary conflict. The state contended that only a "small clarification about the date" was required from the witness, a move they claimed would not prejudice the accused. The prosecution's lawyer described the failure to immediately address the discrepancy during SI Meena's initial examination as an "inadvertent error."

When questioned by Justice Krishna about the delay in challenging the trial court’s order, the state's counsel attributed it to the procedural requirement of seeking departmental approvals for filing a revision petition.

Defence's Rebuttal: A Bid to Fill Lacunae

Counsel for Tahir Hussain vehemently opposed the plea, arguing that the trial court’s order was well-reasoned and did not warrant judicial interference. The defence asserted that the prosecution was fully aware of SI Meena’s recorded statement prior to his deposition. If a discrepancy existed, the defence argued, "there was nothing preventing the prosecutor from confronting the witness on the same date."

The defence counsel highlighted a critical admission by the prosecution itself: that as many as 10 other witnesses had already deposed that the incident occurred on February 25, 2020. This, the defence submitted, undermined the prosecution's claim that the discrepancy was only noticed after PW-26's testimony. The attempt to recall PW-23 was framed not as a quest for clarification but as a strategic move to plug a hole in their case.

The High Court's Rationale: Upholding Trial Court Discretion

In dismissing the police's petition, Justice Krishna affirmed the trial court's findings and reasoning. While a detailed order is awaited, the court's oral observations and ultimate decision signal an adherence to established legal principles governing the recall of witnesses under Section 311 of the Code of Criminal Procedure (CrPC).

The court noted that the prosecution's case was not solely dependent on the testimony of SI Meena. Justice Krishna recorded the submission that "there are 10 other witnesses which are supporting the case of the prosecution." This acknowledgment was pivotal, as it suggested the prosecution was not left without evidence to support its timeline.

Furthermore, the court invoked the principle that "it is a well settled law that if a single witness testimony inspires confidence, it can be relied upon by the trial court." By this logic, the court implied that the trial court could weigh the conflicting testimonies of PW-23 and PW-26, along with the evidence of the other 10 witnesses, to arrive at a conclusion. The recall of PW-23 was therefore not essential for a just decision.

Crucially, the court reasoned that this was not a case where the "prosecution is looking to fill the lacunae." This observation goes to the heart of Section 311 CrPC jurisprudence, which grants courts wide powers to summon and recall witnesses but cautions against its use to allow the prosecution a "second bite at the cherry" or to remedy weaknesses exposed during the trial.

The High Court concluded that the trial court’s order did not suffer from any legal infirmity, effectively ending the prosecution's attempt to re-examine or impeach its own witness on this specific point. The trial, which is currently at the stage of defence evidence, will now proceed based on the existing record.