Section 311 CrPC | Delay Or Absence Of Examination-In-Chief No Bar To Summon Material Witnesses: Allahabad High Court

"There can be no legal bar of summoning the witnesses only because their examination-in-chief has not yet been conducted." Allahabad High Court, in a significant ruling, held that a trial court can summon any material witness under Section 311 of the Criminal Procedure Code (CrPC) even if their examination-in-chief has not yet been conducted.

A single-judge bench of Justice Shree Prakash Singh observed that the statutory power to recall or examine a witness at any stage of a trial is extremely wide and cannot be curtailed merely on unfounded presumptions of delay.

The matter stems from a rape trial involving a mentally challenged victim, whose statements under Sections 161 and 164 CrPC were recorded with the assistance of two special experts. The accused moved an application under Section 311 CrPC to summon these experts and the victim's mother, arguing that the victim had introduced the allegation of rape for the first time during these assisted statements, departing from her initial FIR. The trial court rejected this application, primarily reasoning that since the experts' examination-in-chief had not been conducted, they could not be called for cross-examination.

The primary question before the court was whether an application under Section 311 CrPC can be rejected solely on the ground of delay or because the proposed witnesses have not previously undergone an examination-in-chief. The court was also called upon to determine if the testimony of the experts who assisted the mentally challenged victim constituted relevant evidence necessary for a just decision.

Wide Discretion Under Section 311 CrPC

The High Court meticulously analysed the scope of Section 311 CrPC, emphasising that the provision uses expansive terminology to enable trial courts to arrive at a just decision. The bench noted that the statutory wording confers broad powers upon the trial court, making it clear that before pronouncing the judgment, if the court concludes that examining any witness is necessary, such a witness must be summoned.

Delay Cannot Defeat The Ends Of Justice

Addressing the prosecution's argument regarding the belated filing of the application, the court stressed that the duration of a pending trial cannot obstruct the recording of material evidence. Relying on the Supreme Court's decision in Manju Devi vs. State of Rajasthan, the bench observed that the age of a case by itself cannot be decisive when a request is made to call a material witness. The court noted that while applications intended merely to cause delay can be refused, the accused's interests cannot be jeopardised based on a mere presumption of delay.

"It is trite that the power vest in terms of Section 311 of CrPC, to the Court, to summon and examine or recall and re-examine any material witness at any point of time/stage, could not be curtailed merely because of any delay in filing the application..."

Absence Of Examination-In-Chief Is No Legal Bar

The court strongly disapproved of the trial court's reasoning that cross-examination cannot be permitted without a prior examination-in-chief. Terming the lower court's finding as "erroneous and groundless," Justice Singh clarified that if a trial court reaches the conclusion that examining a witness is necessary, the witness can be summoned at any stage. The bench categorically stated that there is no legal bar to summoning witnesses solely because their initial examination is pending.

Relevance Of Expert Testimony Is Crucial

The High Court also addressed the evidentiary value of the experts who assisted the mentally challenged victim while recording her statement under Section 164 CrPC. The bench stated that examining a witness cannot be refused merely because their evidence might not be conclusive, provided the evidence is otherwise relevant. The court underscored that the experts' statements were highly relevant here, especially since the victim levelled the allegation of rape for the first time in their presence.

Power Must Be Exercised Judiciously

Referring to the apex court's judgment in Natasha Singh vs. Central Bureau of Investigation (State), the High Court reiterated that the power under Section 311 CrPC must be invoked to meet the ends of justice and not to fill lacunae in the prosecution or defence's case. The determinative factor remains whether the summoning or recalling of the witness is genuinely essential for the just decision of the case, and this power must be exercised judicially, not capriciously.

The High Court allowed the application under Section 482 CrPC and set aside the impugned order of the trial court dated May 15, 2026. The matter was remitted back to the trial court with a specific direction to decide the applicant's Section 311 CrPC application afresh, in accordance with the law and within a period of eight weeks.

Date of Decision: 15 July 2026