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2026 Supreme(Online)(Kar) 18856
THE HIGH COURT OF KARNATAKA
S Sunil Dutt Yadav, J
C Maheshkumar – Appellant
Versus
State Of Karnataka – Respondent
CRL.P No. 4788 of 2025
For the Appellants/Petitioners: Nagaraj M. Bhat
For the Respondents: B.N. Jagadeesha, C.H. Hanumantharaya
The power to recall witnesses under Section 311 of the Code of Criminal Procedure is to be exercised only for a just decision of the case and cannot be invoked at a belated stage to change prosecution strategy or treat consistent witnesses as hostile due to a change in Public Prosecutor.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 311 - Recall of witnesses - Scope of power - Recall to be essential for just decision of the case - Prosecution seeking to recall witnesses to mark secondary evidence without proper foundation and to treat consistent witnesses as hostile post-appointment of new Public Prosecutor - Held, trial court was justified in rejecting applications as witnesses deposed in consonance with the chargesheet and there was no valid ground to treat them as hostile or permit re-examination after substantial elapsed time. (Paras 15, 24, 26)
(B) Evidence Act, 1872 - Section 65B - Certification - Requirement of - When recalling witnesses for production of certificate, foundational facts regarding custody of physical/electronic evidence must be established. (Paras 17, 18)
Facts of the case:
The petitioner (informant) challenged an order rejecting applications filed by the Prosecution under Section 311 Cr.P.C. to recall certain prosecution witnesses (PWs) in a criminal case dating back to 2010. The recall of PW-2 was sought to produce a Section 65B certificate for a video, and the recall of other witnesses (investigation officers) was sought to treat them as hostile following the appointment of a new Special Public Prosecutor. The trial court rejected both applications, noting that the witnesses had already been examined and consistently supported the chargesheet, and that the requests were filed at a highly belated stage (post-Section 313 Cr.P.C. statement).
Findings of Court:
The court held that the trial court correctly observed that no compelling reasons or foundational details were provided to justify recalling the witnesses. The investigation officers' evidence aligned with the chargesheet, and there was no legal basis for treating them as hostile merely due to a change in the Prosecutor or a subjective change in strategy. The delay of 15 years in concluding the trial was also noted as a factor in avoiding unnecessary procrastination.
Issues: Whether the trial court erred in rejecting applications for the recall of witnesses under Section 311 Cr.P.C. at the stage of completion of trial recording.
Ratio Decidendi: The power to recall witnesses under Section 311 should not be exercised merely to change the prosecution's strategy or to accommodate a new Prosecutor's view when the witnesses have already testified in conformity with the chargesheet; the court must be satisfied that recall is essential for a just decision, which was not established in the present case.
Result: Petition rejected.
| Table of Content |
|---|
| 1. introduction to the challenge regarding section 311 cr.p.c. rejection for recalling witnesses. (Para 1 , 2 , 3) |
| 2. procedural necessity for foundational facts and relevance when seeking to recall witnesses for technical certifications like section 65b evidence act. (Para 4 , 5 , 6 , 12 , 16 , 17 , 18) |
| 3. inappropriateness of treating witnesses as hostile post-examination solely due to change in counsel or stage of trial. (Para 7 , 8 , 9 , 10 , 13 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. court refuses to allow abuse of process by procrastinating lengthy trials without demonstrating essential need for witness recall. (Para 25 , 26 , 27) |
THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.03.2025 PASSED BY THE LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-82) IN SPL.C.C.NO.828/2018 AND ALLOW THE APPLICATIONS FILED BY PROSECUTION U/S 311 OF CR.P.C. TO REVALL PW.2 AND PW.15, PW.17, PW.18 AND PW.19 IN THE ABOVE CASE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED ON 02.04.2026 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV
CAV ORDER
The petitioner, who is the informant has called in question the legality of the order dated 29.03.2025 passed by the Court of LXXXI Additional City Civil and Sessions Judge, Bengaluru (CCH-82) in Spl.C.C. No.828/2018, whereby, the applications filed by the Prosecution under Section 311 of Cr.P.C. to recall PW-2 (C. Jayamma) came to be rejected as well as another application filed seeking to recall PW-15 (Shivanna), PW-17 (H.S.Raju), PW-18 (M. Venugopal) and PW-19 (Mallappa Shivappa Kaulapure) came to be rejected.
2. The brief facts are that a complaint came to be filed by the informant on 23.05.2010 to the PSI of Paper Town Police Station, Bhadravathi, pursuant to which case in Crime No.74/2010 for the offences punishable under Section 120B , 147, 307 read with Section 149 of IPC came to be registered. It is submitted that the respondent Police have filed a chargesheet.
3. It is made out that the Prosecution filed an application under Section 311 of Cr.P.C. seeking to recall PW-2 and another application seeking to recall PW-15, PW-17, PW-18 and PW-19. Both the applications were filed on 01.02.2025.
4. Insofar as the application filed to recall PW-2, the reason assigned was that the evidence of PW-17 had disclosed that he had received a C.D. from PW-2 during the course of investigation on 06.07.2010, which had contained the statement of PW-2 and the said C.D. was not marked due to absence of Certificate under Section 65B of the Indian Evidence Act, 1872.
5. It is submitted that, as Section 65B Certificate was now ready to be produced through PW-2, there was a requirement for recalling of PW-2 for the purpose of marking Section 65B Certificate.
6. Insofar as the application for recall of PW-2, the objections filed took up the ground that the Prosecution had failed to assert; as to the custodian of the device which contained the Video recording and that there was a positive statement in the evidence of PW-2. It was also contended that it was some other person who had recorded the Video clip, and accordingly it was asserted that, if that were to be so, PW-2 would not be the authorized person to depose regarding the Section 65B Certificate.
7. Another application was filed for recalling of PW-15, PW-17, PW-18 and PW-19. Insofar as the said application, it was averred that new Special Public Prosecutor was appointed and on going through the material evidence examined by the Prosecution which disclosed that the Investigation Officers, viz., PW-15, PW-17, PW-18 and PW-19 had deposed before the Court in a manner adverse to the documents and material relied on by the Prosecution which had the effect of derailing the case of the Prosecution and it was necessary to treat the said witnesses as hostile and to cross-examine such witnesses in order to bring
