Date: Jan 22, 2026

Fair-Trial Mandate: Recall of Witness Where Cross-Examination Was Closed in Absence of Counsel; Inherent Powers Invoked to Remedy Gross Injustice Despite Interlocutory Bar

1. Introduction

In RAM SWAROOP GUPTA & ORS. v. STATE NCT OF DELHI & ANR. (Delhi High Court, decided on 21.01.2026), the petitioners (accused) challenged the trial court’s order dated 28.08.2024 dismissing their application under Section 311 CrPC (now Section 348 BNSS) seeking recall of PW-1 Jagmohan Gupta for further cross-examination.

The central issue was whether refusal to recall a prosecution witness—after the witness’s cross-examination had been effectively forfeited because the accused were unrepresented when called upon to cross-examine—resulted in such gross injustice that warranted High Court interference under inherent jurisdiction, notwithstanding statutory limitations relating to interlocutory orders.

Procedurally, the Court also deleted respondent no. 2 (PW-1) from the array of parties, noting the matter was a State case and his impleadment was only by abundant caution.

2. Summary of the Judgment

The High Court set aside the impugned order and directed the trial court to grant the accused another opportunity, through counsel, to cross-examine PW-1 Jagmohan Gupta. It held that closing cross-examination with “Nil. Opportunity given” when the accused were without counsel causes gross injustice and undermines the fairness and purity of the trial.

The Court emphasized that where delay tactics are suspected, the trial court should not compel unrepresented accused to cross-examine; instead, it should appoint an amicus curiae or obtain legal aid counsel via the legal services authority, thereby preserving fair trial standards while maintaining progress of proceedings.

The judgment was also directed to be circulated to criminal trial courts in Delhi through the Principal District & Sessions Judges, to avoid recurrence of such situations.

3. Analysis

A. Precedents Cited

The judgment does not cite prior judicial precedents by case name. Instead, it is grounded in statutory interpretation and fair-trial principles articulated through:

Section 311 CrPC (now Section 348 BNSS)—power to summon/recall witnesses to arrive at the truth and avoid injustice.
Section 397(2) CrPC (now Section 438(2) BNSS)—bar on revisional jurisdiction against interlocutory orders.
The High Court’s inherent powers (invoked through a petition under Section 482 CrPC practice) to prevent abuse of process and secure ends of justice, subject to restraint where statutory bars apply—unless gross injustice is shown.

In effect, the “influence” on the decision came from the structural relationship between (i) the interlocutory-order bar and (ii) the High Court’s residual duty to prevent serious miscarriage of justice.

B. Legal Reasoning

Interlocutory bar acknowledged, but not absolute where gross injustice is demonstrated: The Court recognized that an order dismissing recall under Section 311 CrPC / Section 348 BNSS is ordinarily interlocutory, making revision barred under Section 397(2) CrPC / Section 438(2) BNSS. It further noted the general principle that what is explicitly barred cannot be permitted through a “backdoor” via inherent powers.

However, the Court carved out (and applied) the critical rider: where an interlocutory order causes gross injustice, the High Court not only may intervene but has a duty to invoke inherent powers to prevent injustice.
Closing cross-examination when accused are unrepresented compromises the trial itself: The Court treated the absence of counsel at the moment of cross-examination as a fundamental fairness defect. It reasoned that compelling lay accused to cross-examine and then closing testimony for “Nil” is not a mere procedural lapse; it jeopardizes the integrity of the adjudicatory process—“the entire trial” risks being vitiated.
Section 311 / Section 348 is truth- and justice-oriented; court can act suo motu: Even if the trial court disbelieved the reasons for counsel’s non-appearance, the High Court emphasized that Section 311 CrPC power is not dependent on party insistence; the court can and should use it on its own motion to avert injustice and ensure a fair opportunity to test prosecution evidence.
Balancing expeditious trial with fairness—use of amicus/legal aid rather than sacrificing cross-examination: The Court accepted that trial courts must manage delay and witness inconvenience. But it held that expedition cannot justify compromising fair-trial essentials. If the court suspects protraction, it should safeguard the record by appointing an amicus curiae or obtaining a legal aid counsel, rather than letting an unrepresented accused “conduct” cross-examination in name only.
Active role of the court in truth-finding: The Court added that nothing prevents the trial court from putting questions to a prosecution witness, reinforcing that criminal trial procedure is not purely adversarial gamesmanship; it is oriented to discovering the truth within fair safeguards.

C. Impact

Operational guidance for trial courts: The decision provides a concrete protocol: if accused are unrepresented at cross-examination, the court should consider appointing amicus or calling legal aid, rather than closing cross-examination. The direction to circulate the order institutionalizes this guidance across Delhi criminal courts.
Lower threshold for “gross injustice” in counsel-absence cross-examination closures: Future petitions challenging refusal to recall witnesses may rely on this judgment to argue that denial of meaningful cross-examination due to absence of counsel is presumptively a serious fairness violation warranting corrective intervention.
Clarifies the inherent-powers “safety valve” despite interlocutory limitations: While reiterating that interlocutory bars cannot be routinely bypassed, the judgment confirms that inherent powers remain available—and may become obligatory—when the trial’s fairness is fundamentally compromised.
Strengthens legal-aid integration into day-to-day trial management: By explicitly pointing to legal services authorities as a solution, the judgment pushes systemic reliance on legal aid to prevent “nil cross-examination” outcomes.

4. Complex Concepts Simplified

Section 311 CrPC / Section 348 BNSS (Recall of witness): A power enabling the court to summon or recall a witness at any stage if it is necessary for a just decision. It is meant to prevent injustice and help the court reach the truth.
Interlocutory order: An interim/procedural order made during the case (not finally deciding guilt/innocence). Many interlocutory orders cannot be challenged by revision to prevent delays.
Bar on revision (Section 397(2) CrPC / Section 438(2) BNSS): A statutory restriction preventing revisional courts from entertaining challenges to interlocutory orders.
Inherent powers of the High Court: Residual authority to prevent abuse of process and secure the ends of justice. Generally exercised sparingly, but available to remedy exceptional situations—here, “gross injustice” affecting trial fairness.
Amicus curiae / Legal aid counsel: A lawyer appointed (or requested) to assist the court and/or represent an unrepresented accused to ensure fairness, especially where the accused cannot effectively defend themselves without legal assistance.
“Trial gets vitiated”: Meaning the fairness and legality of the proceedings are undermined to such an extent that the reliability of the trial outcome becomes questionable.

5. Conclusion

The Delhi High Court’s decision establishes a clear fair-trial rule: cross-examination cannot be meaningfully “forfeited” by closing it when accused are without counsel. Even where interlocutory-order challenges are ordinarily barred, the High Court will invoke inherent powers to remedy gross injustice that threatens the integrity of the trial. The judgment also offers pragmatic trial-management tools—appointment of amicus/legal aid and proactive judicial questioning—ensuring that speed does not override fairness and truth-seeking in criminal adjudication.