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2026 Supreme(Online)(Del) 1195
IN THE HIGH COURT OF DELHI AT NEW DELHI
Girish Kathpalia, J
RAM SWAROOP GUPTA & ORS. – Appellant
Versus
STATE NCT OF DELHI & ANR. – Respondent
CRL.M.C.-537/2026
For the Appellants/Petitioners: Ajatshatru Singh Rawat, Naimishi Verma
For the Respondents: Sanjeev Sabharwal
High Court can invoke inherent powers to set aside interlocutory order that causes gross injustice, such as compelling an unrepresented accused to cross-examine a witness, violating fair trial rights.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 348 (corresponding to Section 311 of Code of Criminal Procedure, 1973) - Section 438(2) (corresponding to Section 397(2) CrPC) - Inherent powers of High Court - Power to recall witness for further cross-examination - Fair trial - Right to legal assistance.
(B) Criminal Procedure - Interlocutory order - Bar on revision under Section 438(2) BNSS - However, inherent powers can be invoked if gross injustice is done - High Court has duty to prevent injustice - Where an accused without legal representation is called upon to cross-examine a prosecution witness, it vitiates the trial - Trial court, instead of compelling accused, should appoint amicus curiae or direct legal aid - Court itself may also put questions to witness to ascertain truth - In the name of expeditious trial, fairness cannot be sacrificed. (Paras 4-8)
Facts of the case:
The petitioners/accused filed an application under Section 311 CrPC for recall of a prosecution witness for further cross-examination, which was dismissed by the trial court. The witness had appeared for cross-examination on 02.09.2023 but the accused were not accompanied by their counsel nor any proxy counsel. The trial court called upon the accused to cross-examine the witness, and since they were lay persons unable to do so, the testimony was closed recording 'Nil. Opportunity given'. The High Court examined whether the impugned order caused gross injustice.
Findings of Court:
The High Court held that compelling an accused in the absence of defence counsel to cross-examine a witness amounts to gross injustice. The entire trial gets vitiated. The trial court could have appointed an amicus curiae or directed legal aid. The court also noted that the trial court could have invoked power under Section 311 CrPC suo motu. Thus, the impugned order was set aside and the trial court directed to grant another opportunity for cross-examination. The order was also directed to be circulated among all criminal courts in Delhi.
Issues: Whether the dismissal of an application under Section 311 CrPC for recall of a witness is an interlocutory order barring revision, and whether the High Court can invoke inherent powers to prevent gross injustice due to denial of fair trial.
Ratio Decidendi: The bar on inherent powers under Section 438(2) BNSS is subject to a rider that if an interlocutory order causes gross injustice, the High Court must invoke its inherent powers to prevent injustice. Denial of legal assistance to an accused during cross-examination strikes at the root of fair trial and constitutes such gross injustice. The trial court has a duty to ensure fairness, including appointing amicus curiae or legal aid when the accused is unrepresented.
Result: The petition and accompanying applications were allowed. The impugned order was set aside, and the trial court directed to grant a fresh opportunity for cross-examination of the witness.
JUDGMENT (ORAL)
1. Petitioners/accused seek setting aside of order dated 28.08.2024 of learned trial court, whereby their application under Section 311 CrPC for recall of PW-1 Jagmohan Gupta for further cross-examination was dismissed.
2. Learned APP for State accepts notice. Mr. Jagmohan Gupta also has been impleaded in the present petition as respondent no. 2 but learned counsel for petitioners/accused submits that same was done only out of abundant precaution and otherwise, he is not a necessary party, it being a State case. As requested, respondent no. 2 is deleted from the array of parties.
3. Learned APP for State in all fairness does not oppose this petition on account of following discussion.
4. Ordinarily, dismissal of an application under Section 348 of BNSS (earlier Section 311 CrPC) being an interlocutory order, the revision petition would be barred by Section 438(2) of BNSS [earlier Section 397(2)CrPC] and what is explicitly barred, cannot be granted backdoor entry by invoking inherent powers. But this bar on the inherent powers is subject to a rider, whereby the High Court must examine if any gross injustice has been done. If the High Court arrives at a conclusion that the interlocutory order caused gross injustice, it would not only be justified for the High Court, but also it would be a duty of the High Court to invoke inherent powers and prevent injustice. The inherent powers wherever exist, are accompanied with an attendant duty to invoke the same to meet ends of justice.
5. In the present case, the gross injustice which appears to have been caused to the petitioners/accused is that on 02.09.2023 when PW-1 Mr. Jagmohan Gupta appeared for the first time for his cross-examination, the present petitioners/accused persons were not accompanied with their counsel. Even any proxy counsel was not accompanying them and they were called upon to cross-examine PW-1. As expected, the petitioners/accused persons being lay persons were unable to cross-examine PW-1, so the learned trial court closed the testimony of PW-1 recording ‘Nil. Opportunity given’.
6. Thereafter, the petitioners/accused filed an application under Section 311 CrPC, explaining the reason for inability of the defence counsel to appear on 02.09.2023. It is also trite that power under Section 311 CrPC can be invoked by the trial court on its own as well without waiting for an application from either side. In the present case, even the application was filed. Although, learned trial court was not convinced with the reasons advanced to explain failure of defence counsel to appear, but even after that, the learned trial court could have invoked the power on its own to ensure no injustice was caused.
7. In the trial proceedings where the accused in the absence of defence counsel, is called upon to cross-examine a witness, it is not just the accused who suffers injustice. It is the entire trial which gets vitiated. Presence of legal assistance for the accused facing a trial is the core element of fair trial.
8. In a case where the trial court is convinced that the accused is somehow protracting the proceedings in order to frustrate the prosecution witnesses, the trial court instead of calling upon the accused in the absence of legal assistance to cross-examine the witness, should either appoint an amicus curiae or should direct the local legal services authority to send some legal aid counsel. The purpose is that the fairness and purity of trial must be kept. In addition, nothing prevents even the trial court to put any questions to the prosecution witness because purpose of such trial is to arrive at the truth. In the name of expeditious trial, fairness of the trial cannot be allowed to become a casualty.
9. Therefore, the impugned order is set aside and trial court is directed to grant another opportunity to the petitioners/accused through their counsel to cross-examine PW-1 Mr. Jagmohan Gupta. The next date before the learned trial court is informed to be 07.02
