311 CrPC | A New Lawyer with a New Strategy Cannot Reopen Cross-Examination: Delhi High Court

Change of Counsel Not Ground to Recall Witness, Delhi High Court dismissed a petition under Section 482 CrPC filed by an accused seeking recall of the complainant for further cross-examination in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881. The Court held that mere change of counsel or dissatisfaction with the strategy of earlier cross-examination does not justify invoking Section 311 CrPC, which empowers courts to summon or recall witnesses.

Justice Ravinder Dudeja firmly rejected the plea, observing that “the newly engaged counsel steps into the shoes of previous counsel and cannot agitate that more questions were required to be put to the witnesses”. The Court emphasized that permitting such recall merely due to alternate legal strategies would result in undue delay and hardship, and compromise the fairness and finality of trial proceedings.

“Section 311 Is Not a Tool for Filling Lacunae or Repeating Cross-Examination”

The case stemmed from a complaint filed by the respondent under Sections 138/142 of the Negotiable Instruments Act, alleging that the petitioner’s cheque had bounced with remarks “Payment stopped by drawer.” The complainant had already been cross-examined by the petitioner’s counsel on three dates in 2022 and 2023. However, in 2024—two years later—the petitioner filed an application under Section 311 CrPC seeking recall of the complainant for further cross-examination on the ground that his former counsel failed to ask key questions.

Rejecting the petitioner’s plea, the Court observed:

“Merely because of the change of counsel and based upon his opinion that such questions were relevant, the witness/complainant cannot be recalled for the purpose of cross-examination.”

The Court cited a prior judgment in Govind Mandal v. State of NCT of Delhi, CRL.M.C. 6451/2025, where it was held that “power under Section 311 CrPC cannot be exercised at such a belated stage merely on account of change in counsel. Different opinion of a subsequent counsel on how the case is to be prosecuted cannot be a legal ground for recalling a witness.”

“Fair Trial Does Not Mean Endless Recall of Witnesses”

Justice Dudeja balanced the right to a fair trial under Article 21 of the Constitution with the larger interests of justice, including the position of the complainant and the need for procedural certainty. Referring to the Supreme Court’s decision in State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402, the Court reiterated that fairness in trial must be viewed from the perspective of not just the accused but also the victim and the justice system.

“If the witnesses are to be recalled again and again and are required to repeatedly appear in court to face cross-examination, it can result in undue hardship, which is not permissible,” the Court noted.

Further, the Court emphasized that:

“Recall cannot be allowed for the asking or for reasons related to mere convenience. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall.”

Delay, Lack of Diligence, and Abuse of Process

The High Court noted that the application to recall was filed in 2024, two years after the cross-examinations in 2022 and 2023. The Court found no sufficient justification for this delay and viewed it as an attempt to delay the proceedings.

“The application under Section 311 CrPC was filed much later… The only justification that the petitioner has is that the previous counsel did not put the material questions during cross-examination. Such reason, in absence of any other valid cause, is not tenable.”

Power Under Section 311 CrPC Must Be Exercised With Caution

Citing multiple Supreme Court precedents, including Vijay Kumar v. State of U.P. (2011) 8 SCC 136, Ratanlal v. Prahlad Jat (2017) 9 SCC 340, and Swapan Kumar Chatterjee v. CBI (2019) 14 SCC 328, the Court reaffirmed that:

“The power under Section 311 CrPC shall not be exercised if the Court is of the view that the application has been filed as an abuse of the process of law.”

“Such power cannot be exercised in a routine manner and has to be exercised judiciously, with caution and circumspection.”

No Interference Warranted – Petition Dismissed

Justice Dudeja concluded that there was no error in the orders passed by the Trial Court or the Revisional Court. Given that the complainant had already been cross-examined thoroughly, and that no compelling justification had been shown, the High Court held:

“This Court finds no reason to interfere with the impugned order. The petition is devoid of any merit and is, therefore, dismissed.”

Date of Decision: January 5, 2026