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2026 Supreme(All) 773

HIGH COURT OF JUDICATURE AT ALLAHABAD
NAND PRABHA SHUKLA, J.
Smt. Ramvati - Applicant
Versus
State Of U.P. And Others – Respondents
APPLICATION U/S 528 BNSS No. - 50778 of 2025
Decided On : 20-04-2026

Advocates Appeared:
For the Applicant : Saksham Srivastava
For the Respondent: G.A.

The power to recall a witness under criminal procedural law is a discretionary tool primarily meant to secure a just decision. It must not be used to permit the alteration of testimony to fill evidentiary lacunae or to accommodate retrospective claims of coercion without strong, valid justifications.

Headnote:(A) Criminal Procedure Code - Section 311 - Recall and re-examination of witness - The power to recall a witness is discretionary and must be exercised with extreme care, caution, and circumspection - The sole criterion for such an exercise is that it must be essential for a just decision of the case - It cannot be invoked to fill a lacuna in the prosecution’s evidence or to permit a witness to reconcile discrepancies after an inordinate delay. (Paras 14, 19, 23)

(B) Evidence - Retraction of testimony - If a witness resiles from their previous statement during cross-examination, the prosecution remains empowered to seek a declaration of hostility or re-examination at the appropriate time - A belated application to recall such a witness, alleging coercion without sufficient proof or prior complaint, is not a valid ground for invoking discretionary powers under the witness-summoning provisions. (Paras 6, 13, 15)

Facts of the case:
In a criminal trial for serious offences, a material prosecution witness initially supported the case during the examination-in-chief but resiled during cross-examination. The witness was not declared hostile at the time. After a significant lapse of over three years from the completion of the cross-examination, an application was filed to recall the witness for re-examination, alleging that the prior testimony was a result of external threat and coercion. The trial court rejected this application, noting it was a belated attempt to fix evidentiary discrepancies.

Findings of Court:
The court found that the application was moved to fill gaps in the prosecution's case and rectify past testimony rather than to ensure a just decision. Given the lack of substantive evidence regarding the alleged coercion and the fact that the witness had remained silent for years, the court concluded that allowing the recall would cause prejudice to the accused and result in a miscarriage of justice.

Issues: The primary issues were whether the trial court was justified in refusing to recall a material witness after an inordinate delay and whether such an exercise of power was essential for the just decision of the case.

Ratio Decidendi: The court held that while it possesses wide discretionary powers to summon or recall witnesses, such power must be used to secure ends of justice, not to permit procedural irregularities or to enable parties to cure defects in their case after evidence has been recorded. Fairness of the trial requires that such powers are not used to prejudice the rights of the accused.

Result: Application dismissed.

Table of Content
1. summary of case background, facts, and trial procedural history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8)
2. analysis of the merits and procedural legitimacy of the recall application. (Para 9 , 10 , 11 , 12 , 13)
3. guidelines for exercising judicial discretion under section 311 cr.p.c. (Para 14)
4. final court order and conclusion regarding the application. (Para 15 , 16)

JUDGMENT :

NAND PRABHA SHUKLA, J.

1. Heard Sri Saksham Srivastava, learned counsel for the applicant, learned AGA-I Shri Ratan Singh for the State and perused the record.

2. The present application under section 528 BNSS has been filed with a prayer to set aside the order dated 10.11.2025 passed by the Court of learned Additional District and Sessions Judge (4^th), District Gautam Budh Nagar in Session Trial No. 50 of 2020 (State Vs. Sukhmeet and Others) in Case Crime No. 1310 of 2019 under sections 302 and 201 IPC, Police Station Surajpur, District Gautam Budh Nagar, pending before the concerned Court, whereby the learned Court has rejected the application moved by the applicant under section 311 Cr.P.C in a very routine and mechanical manner which is being annexed as Annexure No.2 to this present application, and to further direct the Court of learned Additional District and Sessions Judge (4^th) District Gautam Budh Nagar to allow the P.W.-3 i.e., to be re-examined during the pendency of the aforesaid Session Trial.

3. To narrate the brief facts, the applicant Ramvati is the mother of the deceased Rahul who moved an application dated 14.08.2025 (38Kha) under section 311 Cr.P.C. praying for the re-examination of P.W.-3, Rishipal Singh (Father of the deceased).

4. In the instant matter, an FIR No. 1310 of 2019 was lodged on 03.09.2019 at 14:28 under sections 302, 201 I.P.C. by one Shri Harendra Singh at Police Station Surajpur, District Gautam Budh Nagar against unknown persons stating that two dead bodies were found lying in the jungle at village Jumpat in the field of Jagat Singh, near the service road. Both the deceased appeared to have been fire shot and thrown away in the field. During investigation, it was found that one of the deceased was son of the applicant namely Rahul and the other was Kuldeep Nagar, s/o Hari Narayan Singh. After the investigation, the charge sheet was submitted against the respondent-accused Nos. 2 to 4, namely, Sukhmeet, Yogesh alias Bachhi and Saurabh Rana.

5. During trial, the examination-in-chief of P.W.-3, Rishipal (father of the deceased Rahul) was recorded on 23.09.2021 and cross-examination was recorded on 28.07.2022.

6. The prosecution witness No.3, Rishipal, in his examination-in-chief supported the prosecution case but in his cross-examination, did not support the prosecution case and had retracted and resiled from his previous testimony. The said witness was not declared hostile and was not re-examined.

7. Thereafter, on 14.8.2025, the applicant moved an application under section 311 Cr.P.C. (38-kha) for recalling the prosecution witness, P.W.-3 Rishipal and to re-examine him on certain grounds as her husband, Rishipal did not swear the evidence out of his own free will and volition and had deposed under the coercion and threat meted out to him by local villagers who had close affinity with the accused persons and the accused persons posed a threat by going to the extent of eliminating him. An affidavit dated 06.10.2025 43-kha supporting the said application sworn by P.W.-3, Rishipal was filed after a gap of about 50 days affirming the facts mentioned in the application.

8. The learned Trial Court, after hearing the counsel for the applicant and the counsel for the accused rejected the application vide order impugned dated 10.11.2025 on the ground that P.W.-3, in his examination-in-chief dated 23.09.2021, had fully supported the prosecution case and due to paucity of time, the said witness was cross-examined on 28.07.2022 who retracted in his cross-examination and did not support the prosecution case and further de

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2026 Supreme(All) 773

HIGH COURT OF JUDICATURE AT ALLAHABADNAND PRABHA SHUKLA, J.Smt. Ramvati - ApplicantVersus State Of U.P. And Others – Respondents APPLICATION U/S 528 BNSS No. - 50778 of 2025Decided On : 20-04-2026

Cases Referred (1)

HIGH COURT OF JUDICATURE AT ALLAHABAD
NAND PRABHA SHUKLA, J.
Smt. Ramvati - Applicant
Versus
State Of U.P. And Others – Respondents
APPLICATION U/S 528 BNSS No. - 50778 of 2025
Decided On : 20-04-2026