Recalling Witnesses for Further Cross-Examination in Indian Law

Recalling Witnesses for Further Cross-Examination in Indian Law: A Comprehensive Analysis of Judicial Discretion and Procedural Fairness

Introduction

The power of a court to recall a witness who has already been examined, for the purpose of further examination-in-chief, cross-examination, or re-examination, is a critical facet of trial procedure in India. This power, embedded in both criminal and civil procedural laws, serves as an instrument to ensure that all essential evidence is brought before the court to enable a just decision. However, this power is not unfettered and must be exercised judiciously, balancing the pursuit of truth with the principles of fair trial, the rights of the parties, and the need to prevent abuse of the court's process. This article analyses the legal framework and judicial pronouncements governing the recall of witnesses for further cross-examination in India, drawing upon key statutory provisions and landmark case law.

Statutory Framework

The primary statutory provisions empowering courts to recall witnesses are Section 311 of the Code of Criminal Procedure, 1973 (CrPC) and Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC).

Section 311, Code of Criminal Procedure, 1973

Section 311 CrPC grants extensive powers to the criminal court. It reads:

"Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

The Supreme Court in Mohanlal Shamji Soni v. Union of India[8], interpreting the erstwhile Section 540 CrPC (which is materially similar to Section 311 of the new Code), observed that the section is in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised. The power is circumscribed by the principle that the evidence to be obtained should appear to the court essential to a just decision of the case.[8], [14] This section comprises two parts: the first part is discretionary, granting the court power to summon, examine, or recall a witness; the second part is mandatory, obliging the court to do so if the witness's evidence is essential for a just decision.[17]

The Supreme Court in Rajaram Prasad Yadav v. State Of Bihar And Another[1] laid down several principles to be borne in mind while dealing with an application under Section 311 CrPC, emphasizing that the objective is to discover the truth and ensure a just verdict, and the power must not be used to fill lacunae in the prosecution's case or to cause prejudice.[1], [15] This sentiment was echoed in Mannan Shaikh And Others v. State Of West Bengal And Another[3], where the Court upheld the recall of an investigating officer to introduce a dying declaration, deeming it necessary for a just decision, distinguishing it from merely filling a procedural gap.[3]

Order XVIII Rule 17, Code of Civil Procedure, 1908

Order XVIII Rule 17 CPC provides:

"Court may recall and examine witness.—The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."

The scope of Order XVIII Rule 17 has been interpreted by courts as primarily enabling the court to clarify any issue or doubt by recalling a witness, either suo motu or at the request of a party, so that the court itself can put questions.[21] As observed by the Delhi High Court in SMT. SHASHI SEHDEV v. SH. NARENDER KUMAR SHARMA[9], a party may be permitted to recall a witness if there exists any doubt requiring clarification, or if new evidence has been discovered, or if evidence regarding the conduct of the other party has emerged. However, it is not meant for filling lacunae or omissions due to counsel's inadvertence.[9] The Supreme Court in Bagai Construction Through Its Proprietor Lalit Bagai v. Gupta Building Material Store[19] cautioned against allowing recall applications filed to overcome lacunae after arguments have been heard and judgment reserved, especially when the evidence was available throughout the trial.[19]

The Madras High Court in S.S.S Durai Pandian v. S.A Samuthira Pandian[11] noted that while Order XVIII Rule 17 grants power to recall, it ought to be exercised with greatest care and only in peculiar circumstances. It also acknowledged that recall for re-cross-examination could occur at the instance of parties under Section 151 CPC if new factors come to light.[11] The Andhra Pradesh High Court in Pantham Brahman v. Gullepalli Swaminaidu[12] opined that the power under Order XVIII Rule 17 can be exercised by the Court suo motu or at the instance of either party, provided the court is satisfied about the necessity.[12]

Guiding Principles for Exercise of Power

Several principles have emerged from judicial pronouncements that guide the exercise of the power to recall witnesses for further cross-examination.

Essentiality for a Just Decision

The paramount consideration for recalling a witness is whether their further testimony is essential for a just decision of the case.[1], [8] This principle applies to both criminal and civil proceedings. The power is to be exercised to discover relevant facts or obtain proper proof for a just decision.[14] The court must be satisfied that the recall is not a mere ruse but is genuinely required for elucidating the truth. In Natasha Singh v. Central Bureau Of Investigation (State)[5], the Supreme Court allowed the recall of witnesses for the defense, emphasizing that ensuring a fair trial and the accused's right to present a comprehensive defense takes precedence if the evidence is crucial.[5]

Discovery of Truth, Not Filling Lacunae

A frequently reiterated principle is that the power to recall should not be used to fill up lacunae in the evidence of the prosecution or plaintiff, or to allow a party to undo mistakes or omissions.[1], [3], [9], [24] The objective is the discovery of truth.[3] However, the line between filling a lacuna and seeking essential evidence for a just decision can be thin.[13] If the evidence is indeed essential for arriving at the truth, its introduction, even if it incidentally benefits a party, may be permissible.[3]

Fair Trial and Opportunity to Parties

The right to a fair trial is a cornerstone of the Indian judicial system.[2], [5] This includes the right of the accused to effectively cross-examine prosecution witnesses. In P. Sanjeeva Rao v. State Of Andhra Pradesh[4], the Supreme Court allowed the recall of prosecution witnesses for cross-examination several years after their initial examination, emphasizing the accused's right to challenge incriminating evidence to ensure a fair trial.[4] If new matter is introduced during re-examination or by a recalled witness, the adverse party generally has the right to further cross-examine on that new matter.[10], [15] The fairness of the trial has to be seen not only from the point of view of the accused but also from the point of view of the victim and society.[7], [13]

Preventing Abuse of Process and Dilatory Tactics

Courts must be vigilant against applications for recall made with the intent to delay proceedings, harass witnesses, or abuse the process of the court.[7], [19] In Swapan Kumar Chatterjee v. Central Bureau Of Investigation[6], the Supreme Court set aside an order allowing recall where the prosecution had failed to procure the witness's attendance for thirteen years despite earlier orders, holding that the power should be invoked only to meet the ends of justice, not to condone prolonged laxity.[6] Similarly, applications made after undue delay without sufficient explanation are often viewed critically.[26]

Stage of Application

Both Section 311 CrPC and Order XVIII Rule 17 CPC state that the power can be exercised "at any stage." While this grants wide latitude, applications made at a very belated stage, such as after arguments are concluded and judgment is reserved, are subjected to stricter scrutiny.[8], [19] The court will consider whether the party was diligent and whether the recall at such a late stage would cause undue prejudice or disrupt the trial.[19]

Grounds for Recall

Specific grounds often cited for recall include:

  • Clarification of Ambiguities: If the evidence already on record is ambiguous or requires clarification for the court to understand it properly.[10], [11], [21]
  • Newly Discovered Evidence or Facts: If a party, despite due diligence, comes across new and relevant evidence or facts after the witness's examination has concluded.[9] In State Of Rajasthan v. Teja Ram And Others[18], it was suggested that if a subsequent witness provides testimony inconsistent with a prior witness's statement, the defence could request recalling the earlier witness for further cross-examination.[18]
  • Inadvertence or Incompetence of Counsel: This is generally not considered a strong ground for recall, particularly if it appears to be an attempt to fill lacunae.[7], [9], [23] The Supreme Court in State (Nct Of Delhi) v. Shiv Kumar Yadav And Another[7] held that mere change of counsel or allegations of prior counsel's incompetence, without more, are insufficient to warrant recall, especially if it prejudices the victim or delays the trial.[7], [13] However, the Telangana High Court in Yeddula Vijay Kumar Reddy v. The State of Telangana[17] took a somewhat more lenient view, suggesting that a party should not suffer due to counsel's inadvertence if it leads to serious hardship, though this must be balanced with other considerations.[17]
  • Hostile Witnesses or Subsequent Developments: If subsequent events or testimonies of other witnesses necessitate further questioning of a previously examined witness. However, as seen in AJAY @ PINKU AND ORS. v. STATE OF HARYANA AND ORS.[26], recall was denied when sought merely because other witnesses turned hostile, if the questions could have been put earlier.[26]

Judicial Scrutiny and Discretion

The power to recall a witness is discretionary, but this discretion must be exercised judicially, on sound legal principles, and not arbitrarily or capriciously.[1], [14] The court must record reasons for allowing or disallowing a recall application.[7], [13] The exercise of this power should be guided by the exigencies of the situation, fair play, and good sense, with the ultimate aim of achieving a just decision.[14] The court needs to balance the right of a party to present its case fully with the need for expeditious trial and prevention of harassment to witnesses.[1], [7] As noted in Pranab Kishore Muduli And Another v. State Of Orissa[25], the necessity for recall must be assessed on the facts and circumstances of each case; if the witness has no knowledge on the point or relevant questions have already been exhaustively asked, recall may be refused.[25]

Conclusion

The power to recall witnesses for further cross-examination is an indispensable tool in the Indian judicial process, designed to ensure that justice is rendered based on a complete and accurate understanding of the facts. The statutory provisions of Section 311 CrPC and Order XVIII Rule 17 CPC, as interpreted and elucidated by the judiciary, provide a framework for the exercise of this power. The guiding star remains the "essentiality for a just decision," tempered by considerations of fair play, the prevention of abuse of process, and the avoidance of undue delay. Courts are tasked with a delicate balancing act, ensuring that the quest for truth does not devolve into an endless exercise or a means for parties to rectify their own failings at the expense of procedural propriety and the rights of others. A judicious and reasoned application of this power is crucial for maintaining the integrity and efficacy of the trial system in India.

References