The discretionary power to recall or summon witnesses at any stage of a trial is intended for essential evidence only; it cannot be abused to fill lacunae, overcome explicit procedural waivers, or delay trials due to a change in legal counsel.

Headnote:(A) Code of Criminal Procedure, 1973 - Sections 200, 202, 244, 245, 246 and 311 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Scope of power to summon material witness - The court possesses wide discretionary power to summon, examine, or recall witnesses at any stage of inquiry or trial; however, this power must be exercised judiciously, not to fill gaps in the prosecution's case or circumvent explicit waivers. Courts cannot be held to ransom in the name of fair trial, and judicial discretion cannot be used to defeat the structured procedure of trial once evidence is formally closed and charges are framed. (Paras 10, 11, 14, 15 and 16)

(B) Practice and Procedure - Waiver and Estoppel - Withdrawal of evidence - Where a complainant makes a voluntary and explicit written endorsement closing prosecution evidence under Section 244, allowing a subsequent plea to recall witnesses on the ground of former counsel's negligence would result in undue delay and prejudice to the accused - Change of legal representation does not constitute a valid change in circumstances to justify reopening a settled stage of trial. (Paras 18, 19, 20 and 21)

Facts of the case:
A criminal complaint was initiated, and upon recording pre-summoning evidence, the court proceeded to the pre-charge stage. After several years, the complainant’s counsel voluntarily endorsed on the court record that there was no desire to adduce further evidence under the statutory provision for framing charges. Charges were subsequently framed and the trial advanced. Years later, the complainant sought to recall witnesses examined during the initial stages to provide substantive evidence, citing the professional negligence of the former counsel, which was rejected by the subordinate courts.

Findings of Court:
The concurrent findings of the lower courts were upheld as legally sound. The court found that the request was an afterthought aimed at delaying the proceedings. It was held that procedural milestones, once passed through deliberate legal acts, cannot be erased merely due to a change in counsel or claims of lack of legal knowledge.

Issues: The main issues were the extent of the court's discretion to summon witnesses at a post-charge stage under the inherent power to ensure justice and whether professional negligence by prior counsel provides sufficient cause to re-open evidence already closed in a criminal trial.

Ratio Decidendi: The power to recall or summon witnesses is an exceptional relief to be used when evidence is essential for a just decision, not to be used to systematically undo an explicit waiver or to fill evidentiary lacunae, particularly when doing so would result in significant delay and prejudice to the opposing party.

Result: Application dismissed.

Table of Content
1. procedural context and factual history of the case. (Para 1 , 2 , 3 , 4)
2. contending arguments regarding section 311 crpc and trial delay. (Para 5 , 6)
3. statutory requirements for warrant case evidence and witness examination. (Para 8 , 9)
4. scope and judicial constraints on section 311 crpc powers. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17)
5. lawyer negligence as a ground for reopening closed evidence stages. (Para 18 , 19 , 20 , 21)
6. final confirmation of orders and dismissal of the application. (Para 22 , 23)

JUDGMENT :

JAI KRISHNA UPADHYAY, J.

1. This Application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been preferred by the Applicant/Complainant- Dilawar being aggrieved by the order dated 07.04.2026 passed by the learned Sessions Judge, Baghpat in Criminal Revision No. 17 of 2026. By the said Revisional Order, the Revisional Court below dismissed the applicant’s criminal revision, thereby affirming the order dated 20.12.2025 passed by the Court of Judicial Magistrate First Class, Baghpat in Complaint Case No. 11414 of 2021( Dilawar Singh v. Waheed and Others).

2. The Trial Court, vide its order dated 20.12.2025, had rejected the Applicant's application dated 01.12.2025, filed under Section 311 Cr.P.C., which was filed with prayer to summon and examine witnesses under Section 244 Cr.P.C. long after the pre-charge stage had been closed and formal charges had already been framed.

3. To properly appreciate the legal matrix in this application, it is pertinent to take a look at the facts of the case, which is as follows:

3.1 The Applicant filed a complaint against Opposite Parties Nos. 2 to 4 under Sections 406, 504, and 506 of the Indian Penal Code , alleging criminal breach of trust, intentional insult, and criminal intimidation.

3.2 On 21.10.2013, the statement of the Complainant Dilawar Singh was recorded under Section 200 Cr.P.C. Subsequently the statements of witness Shivkumar (S/o Ram Singh) and witness Ghanshyam (S/o Jayaprakash) were duly recorded under Section 202 Cr.P.C.. Finding a prima facie case, the learned Trial Magistrate summoned opposite parties to face trial under Sections 406, 504, and 506 IPC vide order dated 20.01.2014. Following this the matter was listed for the recording of evidence under Section 244 Cr.P.C. on 10.10.2018. On 10.01.2020, the Complainant’s primary statement under Section 244 Cr.P.C. was recorded. Due to the global COVID-19 pandemic and the resultant lockdowns, the examination of further witnesses could not take place.

3.3 On 04.01.2021, the learned counsel representing the Complainant made a voluntary, specific written endorsement, stating explicitly that “the Complainant does not wish to adduce any further evidence under Section 244 Cr.P.C.”. The case proceeded further and the discharge application moved by the accused persons was rejected by the Court on 21.12.2021. A formal statutory charges were framed and trial beginned.

3.4 The Complainant then moved an application under Section 311 Cr.P.C. dated 01.12.2025, claiming that witnesses examined in 2013 under Section 202 Cr.P.C. (Shivkumar and Ghanshyam) had never been presented or examined under Section 244 and this omission was entirely due to the negligence of his former counsel.

3.5 This application of the complainant was rejected by the learned Trial Court vide its order dated 20.12.2025 and then this order of rejection of application of the complainant was affirmed by the learned Revisional Court vide order dated 07.04.2026. Being aggrieved by these orders complainant has filed instant application.

4. Heard Sri S.C. Shukla, learned counsel for the applicant and Sri Vishwa Deepak Mishra, Learned AGA-I for the State.

5. The learned counsel for the applicant contended that the applicant has no personal knowledge of strict legal procedures and relied entirely upon his counsel in good faith and he acted with gross negligence. The counsel highlighted that the two witnesses, Shivkumar and Ghansh