Witness Not Examined U/s. 244 CrPC Can't Be Examined U/s. 246 Invoking Section 311 CrPC: Allahabad High Court

The High Court was considering an application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 agaisnt the order passed by the Sessions Judge dismissing the applicant’s criminal revision against rejection of application under Section 311 of the CrPC.

The Single Bench of Justice Jai Krishna Upadhyay held, “Allowing the Complainant to introduce new witnesses at the Section 246 stage when they were never subjected to examination-in-chief under Section 244 would heavily prejudice the statutory rights of the accused and fundamentally disrupt the trial process.”

Advocate Sumit Shukla represented the Applicant, while Government Advocate represented the Opposite Party.

Factual Background

The Applicant filed a complaint against the Opposite Parties under Sections 406, 504, and 506 of the Indian Penal Code, alleging criminal breach of trust, intentional insult, and criminal intimidation. The statement of the Complainant Dilawar Singh was recorded under Section 200 Cr.P.C. Subsequently the statements of witness Shivkumar and witness Ghanshyam were duly recorded under Section 202 of the Cr.P.C. Finding a prima facie case, the Trial Magistrate summoned the opposite parties to face trial. The Complainant’s primary statement under Section 244 of Cr.P.C. was recorded but due to the global COVID-19 pandemic and the resultant lockdowns, the examination of further witnesses could not take place.

The Complainant made a voluntary, specific written endorsement that he did not wish to adduce any further evidence under Section 244. The discharge application moved by the accused persons was rejected by the Court. The Complainant then moved an application under Section 311 claiming that witnesses examined in 2013 under Section 202 (Shivkumar and Ghanshyam) had never been presented or examined under Section 244, and this omission was entirely due to the negligence of his former counsel. This application of the complainant was rejected by the Trial Court and then this order of rejection of the application of the complainant was affirmed by the Revisional Court. Aggrieved thereby, the complainant filed the instant application.

Reasoning

The Bench explained that only those witnesses who were duly subjected to examination-in-chief under Section 244 of the Cr.P.C. before the framing of charges can be recalled for cross-examination under Section 246 of the Cr.P.C. “A witness whose statement was only recorded at the pre-summoning stage under Section 202 Cr.P.C. does not automatically become substantive trial evidence. If the complainant fails to examine them under Section 244, they cannot directly cross-examine them under Section 246”, it added.

On a perusal of the facts of the case, the Bench noted that it was only in late 2025, nearly four years after charges were framed and after an explicit order from the High Court demanding an expeditious conclusion to the trial, that the Complainant sought to reopen the Section 244 stage through a new counsel. “If this Court were to permit a party to erase years of formal trial steps simply by hiring a new lawyer and claiming "my previous lawyer didn't inform me," the entire structure of the criminal justice system would collapse into endless delays, it stated.

Thus, finding no patent illegality, abuse of process, or jurisdictional error in the impugned orders, the Bench dismissed the application.

Cause Title: Dilawar Singh v. State Of U.P. And 3 Others (Neutral Citation: 2026:AHC:125388)

Appearance

Applicant: Advocates Sumit Shukla, Suresh Chandra Shukla

Opposite Party: Government Advocate

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