While quashing an order rejecting the application filed under Section 311 of the CrPC for recalling of two witnesses, the Rajasthan High Court has held that the right to cross-examine a witness is a statutory right. The High Court directed the Trial Court to re-summon the two Prosecution Witnesses after noting that the accused’s counsel had submitted an application seeking time for the purpose of conducting cross-examination as he was unwell.

The High Court was considering a petition challenging the impugned order whereby the application submitted by the petitioner under Section 311 Cr.P.C. for recalling of the two witnesses was rejected.

The Single Bench of Justice Anoop Kumar Dhand stated, “A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion.”

Advocate Shishram Saini represented the Petitioner while Public Prosecutor Amit Kumar Gupta represented the Respondent.

Factual Background

The charges were framed against the petitioner for the offences under Sections 376(2)(n), 506 & 392 of IPC by the trial Court and thereafter, the case was posted for April 3, 2024 and the prosecution witnesses were summoned on the said day. On the fateful day, two witnesses, i.e., the prosecutrix and her mother appeared in the witness box, but the counsel appearing on behalf of the petitioner was not keeping well. He submitted an application seeking time for the purpose of conducting cross-examination of the Prosecution Witnesses.

The said application was rejected and on the very same day the petitioner’s opportunity to cross-examine the two witnesses was closed. Thereafter, an application under Section 311 Cr.P.C. was submitted by the petitioner for summoning the two witnesses for the purpose of conducting their cross-examination. However, the said application was also rejected by the trial Court vide the impugned order.

Reasoning

On a perusal of the facts of the case, the Bench mentioned that there was no delay on the part of the petitioner with an intention to prolong the trial. It was noticed that on the very first day, when the prosecution witnesses appeared in the witness box, the counsel appearing on behalf of the petitioner sought time to conduct cross-examination on some other day for the reason of his suffering from an ailment and being unwell. However, the trial Court closed the petitioner’s opportunity to cross-examine the prosecution witnesses without any justified reason.

The Bench held, “Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier.”

The Bench also explained that, insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person appears in the view of the court to be essential for the just decision of the case.

Concluding that the re-summoning of the Prosecution Witnesses was necessary for a just and fair decision of the case, the Bench quashed the impugned orders. “The trial Court is directed to re-summon the above two Prosecution Witnesses…”, it ordered.

Cause Title: Pooranmal Yadav v. State of Rajasthan (Neutral Citation: 2025:RJ-JP:45215)

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Rajasthan High CourtJustice Anoop Kumar Dhand

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.