Section 311 CrPC Power Cannot Be Exercised To Fill Lacunae In Defence Or Cause Undue Hardship To Rape Victims: Supreme Court

"Witnesses cannot be expected to face hardship of appearing in court repeatedly, particularly in sensitive cases. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in Court to face cross-examination," Supreme Court, in a significant ruling dated May 26, 2026, held that the discretionary power to recall witnesses under Section 311 of the Code of Criminal Procedure (CrPC) must be exercised sparingly and cannot be used to fill lacunae in the defense's case.

A bench of Justices Satish Chandra Sharma and Dipankar Datta observed that while the power is wide, it must not be invoked to cause "unjustifiable hardship" to victims of heinous crimes like rape by requiring them to face repeated cross-examinations years after the incident.

The present appeal was filed by the State of Tripura against a High Court order that permitted the recall of a prosecutrix for further cross-examination in a 2016 rape case. The accused had sought to recall the victim seven years after the FIR and four years after her last cross-examination, citing "oversight" in questioning her regarding Call Detail Records (CDRs). The Trial Court had rejected the application, but the High Court of Tripura subsequently allowed it, prompting the State's appeal to the apex court.

The primary question before the Court was whether a witness, particularly a victim of sexual assault, can be recalled under Section 311 CrPC after an inordinate and unexplained delay of four years. The Court was also called upon to determine if "inadvertence" by the defense in examining documents already on record constitutes a valid ground for recalling a witness to ensure a just decision of the case.

Scope Of Section 311 CrPC Power

The Supreme Court emphasized that while Section 311 CrPC confers wide discretionary power upon the Court to summon or recall any person at any stage of a proceeding, such power is not absolute. The bench noted that the second part of the provision makes it mandatory to summon a witness only if their evidence appears "essential to the just decision of the case."

Power Must Be Exercised Judiciously, Not Arbitrarily

The Court reiterated the principles laid down in Natasha Singh v. Central Bureau of Investigation (2013), stating that the power must be exercised judiciously and not capriciously. The bench observed that an application under Section 311 CrPC must not be allowed if its sole purpose is to fill up a lacuna in the case of the prosecution or the defense, or if it causes serious prejudice to the opposite party.

Recall Is Not A Matter Of Course

Relying on the precedent in State (NCT of Delhi) v. Shiv Kumar Yadav (2016), the bench underscored that the recall of witnesses cannot be permitted as a matter of course. The Court must balance the requirement of a fair trial with other relevant considerations, including the hardship caused to witnesses and the potential for uncalled-for delays in the trial process.

"Recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case."

Inordinate Delay And Lack Of Explanation

In the instant case, the Court found that the prosecutrix had already been subjected to detailed and extensive cross-examination on four separate occasions between 2018 and 2019. The bench noted that the application for recall was filed in December 2023, representing an "inordinate lapse of nearly four years" from the completion of her previous examination, without any satisfactory explanation for the delay.

Defense Cannot Fill Lacunae Due To Oversight

The respondent-accused argued that certain aspects of the CDRs could not be brought on record earlier due to oversight. However, the Supreme Court pointed out that these CDRs were filed by the prosecution along with the charge-sheet and were always within the knowledge of the defense. The bench held that the power under Section 311 CrPC cannot be invoked to rectify a party’s failure to use available material at the appropriate stage.

"The power under Section 311 CrPC cannot be exercised merely to fill up lacunae in the defence case."

Protecting Victims From Repeated Ordeals

The Court expressed deep concern over the hardship caused to victims of sensitive cases when they are required to appear in court repeatedly. The bench observed that the prosecutrix had already recorded statements during the investigation and before a Magistrate under Section 164 CrPC, in addition to facing cross-examination four times. Directing a further recall would inflict "further and unjustifiable hardship" upon her.

The Supreme Court concluded that the High Court erred in interfering with the Trial Court's well-reasoned order. By setting aside the High Court's judgment, the bench restored the Trial Court's order and directed that the trial, which has been pending for over eight years, be concluded by the end of the year.

Date of Decision: May 26, 2026