Patna High Court

Indradev YadavversusThe State of Bihar

Decided: 13 January 2026
Disposal: DISMISSED
Bench: SOURENDRA PANDEY

Holding

The High Court held that the trial court’s order dismissing the Section 311 application was correct and that the application could not be allowed merely to fill a lacuna created by the defence’s own neglect.

Summary

The petitioners, a group of Yadavs accused of offences under Sections 147, 148, 149, 307, 302 of the IPC and Section 27 of the Arms Act, sought to recall two prosecution witnesses (PW‑1 Gupteshwar Kumar and PW‑4 Tez Narayan Yadav) for further cross‑examination under Section 311 of the CrPC, alleging that material points were left unaddressed. The trial court dismissed the application, holding that it was filed more than 18 months after the witnesses had been examined, that no change in circumstances or new fact justified recall, and that allowing the recall would merely fill a lacuna created by the defence’s own neglect. The petitioners appealed, contending that Section 311 confers a wide discretionary power to ensure a fair trial and relying on several Supreme Court precedents. The High Court examined the arguments, noted that the witnesses had already been extensively cross‑examined, and found no justification to overturn the trial court’s order. Consequently, the High Court upheld the dismissal, holding that the application could not be entertained merely because the defence failed to ask certain questions earlier, and dismissed the petition under its inherent jurisdiction.

Issues considered

Whether an application under Section 311 CrPC filed more than 18 months after a witness has been examined can be entertained to recall the witness for further cross‑examination.
Whether the discretion under Section 311 can be exercised to remedy the defence’s failure to raise certain questions, i.e., to fill a lacuna in the prosecution case.
Whether the trial court’s dismissal of the application was an error of law warranting interference by the High Court.

Legislation cited

Arms Act — s. 27
Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 348
Code of Criminal Procedure, 1973 — s. 311
Indian Evidence Act, 1872 — s. 165
Indian Penal Code — s. 147, 148, 149, 302, 307

Subjects

Section 311 CrPC
witness recall
fair trial
Article 21
criminal procedure
cross‑examination
procedural delay
discretionary power

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.73 of 2026
Arising Out of PS. Case No.-6 Year-2020 Thana- JAGDISHPUR District- Bhojpur
======================================================
1. Indradev Yadav Son of Late Daroga Yadav Resident of-Gram- Roop Bandh,
P.S.-Jagdishpur, District- Bhojpur.
2. Akhilesh Yadav Son of-Rajendra Yadav Resident of-Gram- Roop Bandh,
P.S.-Jagdishpur, District- Bhojpur.
3. Pappu Yadav Son of-Indradev Yadav Resident of-Gram- Roop Bandh, P.S.-
Jagdishpur, District- Bhojpur.
4. Jyotish Yadav Son - Indradev Yadav Resident of-Gram- Roop Bandh, P.S.-
Jagdishpur, District- Bhojpur.
5. Nandkishore Kumar S/O Rajendra Yadav Resident of-Gram- Roop Bandh,
P.S.-Jagdishpur, District- Bhojpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Gupteshwar Kumar Son of-Lorik Yadav Resident of- Gram- Roop Bandh,
P.S-Jagdishpur, District - Bhojpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms. Akanksha Malviya, Advocate
Mr. Akash Keshav, Advocate
Mr. Ayushman Kishore, Advocate
Mr. Anuj Kumar Srivastava, Advocate
Ms. Naina Nancy, Advocate
For the State : Mr. Chandra Bhushan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
Date : 13-01-2026

Heard the learned counsel for the petitioners and

learned APP for the State.

2. The present application has been filed by the

petitioner seeking following relief(s):-

“That this Criminal

Miscellaneous application is being filed

praying for quashing and setting aside of the
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Order dated 30.06.2025 passed in Sessions

Trial Case No. 139 of 2021 titled State Vs.

Vinod Kumar Yadav and Others (arising out

of Jagdishpur P.S. Case No. 06 of 2020) by

the Learned Additional Sessions Judge-XVII,

Bhojpur at Ara whereby and whereunder the

Learned Additional Sessions Judge-XVII,

Bhojpur has been pleased to reject the

application dated 05.07.2024 filed by the

Petitioners herein, accused persons therein

under Section 311 of the Code of Criminal

Procedure, 1973 (Hereinafter referred to as

'CrPC') mirrored as Section 348 of Bharatiya

Nagarik Suraksha Sanhita, 2023 (Hereinafter

referred to as 'BNSS') to recall the

Prosecution Witness No. 1 (Gupteshwar

Kumar) and Prosecution Witness No. 4 (Tez

Narayan Yadav) for further cross-

examination.”

3. Learned counsel for the petitioners submit that

the petitioners of the present application are the accused persons

in the ongoing Sessions Trial No. 139 of 2024. It has been

submitted that upon registration of the FIR, being Jagdishpur P.S.
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Case No. 06 of 2024, for offences under Sections 147, 148, 149,

307 and 302 of the Indian Penal Code and under Section 27 of

the Arms Act, the police took up investigation and subsequently

submitted charge-sheet. Thereafter, the Court of learned ACJM-

VI took cognizance against the petitioners for the aforesaid

offences on 11.09.2020. The charges were subsequently framed

on 23.03.2022 for the offences under Sections 147, 148, 149, 302

and 307 of the Indian Penal Code and under Section 27 of the

Arms Act.

4. Learned counsel for the petitioner submits that

prior to filing of the present application, six prosecution

witnesses were examined. The first prosecution witness, namely

Gupteshwar Kumar, was examined and cross-examined on

19.12.2022, while prosecution witness no. 6, the doctor, namely,

Dr. Tez Narayan Raj was examined on 11.03.2024. He further

submits that upon review of the prosecution evidence, the learned

counsel appearing on behalf of the accused persons realized that

certain crucial aspects pertaining to the testimony of prosecution

witness no. 1 and prosecution witness no. 4 remained

inadequately addressed and which go to the very root of the

prosecution case.

5. It has been submitted that the omissions were

vital for testing the testimony, credibility of the prosecution
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witnesses and for the ends of justice and fair play, it is essential

to recall the witnesses. Accordingly, on 05.09.2024, the defence

filed an application under Section 311 CrPC seeking further

cross-examination of PW-1 and PW-4 along with a detailed

questionnaire outlining the specific and material questions

intended to be put to the witnesses.

6. Learned APP opposed the said application and

after hearing the parties, the learned Trial Court, by the impugned

order dated 30.06.2025, dismissed the application filed by the

defence for recalling PW-1 and PW-4 for further cross-

examination, holding that the application had been filed after a

lapse of more than 18 months and that no cogent explanation had

been offered as to why the questions were not asked earlier

despite having sufficient opportunity to do so.

7. The learned Trial Court has further observed

that in absence of any reasonable justification for the prior

omission does not constitute a sufficient ground for recalling the

witnesses. It has also been held that mere failure to properly

cross-examine certain points does not constitute sufficient

grounds for recalling the witnesses unless there is a change in

circumstances or the discovery of a new fact that was previously

unknown to the defence counsel.

8. Learned counsel for the petitioners submit that
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the learned Trial Court has erred in dismissing the application on

behalf of the petitioners for recalling the two prosecution

witnesses, which has resulted in gross miscarriage of justice and

violation of the fundamental right to fair trial guaranteed to the

petitioners under Article 21 of the Constitution of India.

9. Learned counsel for the petitioners submit that

the scope and object of Section 311 CrPC confers a wide

discretionary power on the Court to summon or recall any

witness at any stage if his evidence appears to be essential to the

just decision of the case to ensure that failure of justice is not

occasioned on account of mistake of either party in bringing

valuable evidence on record.

10. It has further been submitted that the impugned

order has dismissed the questionnaire of the defence in a

perfunctory manner, merely stating that no cogent explanation

has been offered as to why these questions were not asked earlier.

However, the learned Trial Court was obligated to assess whether

the proposed questions pertained to material facts and were

necessary for a just adjudication.

11. It has also been contended that the learned

Trial Court erred observing that proper cross-examination is not

an objective test but rather a subjective one. The learned counsel

submits that in fact, the test under Section 311 CrPC is an
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objective test i.e., essential to the just decision of the case and the

subjective satisfaction or failure of a counsel at an earlier stage is

irrelevant, if the evidence is found to be essential.

12. Learned counsel for the petitioner has further

pointed out that the observation of the learned Trial Court, that

by such an application under Section 311 CrPC, the defence is

trying to fill up lacuna is misplaced in the facts of the present

case. In fact, the petitioner seeks further cross-examination of the

witnesses to elicit truth by cross-examining on points earlier

overlooked when such points were material and does not amount

to filling up a lacuna.

13. Learned counsel contends that the learned Trial

Court failed to consider the settled jurisprudential principles

governing Section 311 CrPC as elucidated by the Hon’ble

Supreme Court.

14. The learned counsel for the petitioners has

relied on a few judgments in support of her submissions. In the

case of Varsha Garg v. The State of Madhya Pradesh & Ors.,

reported in (2023) 19 SCC 646, the Hon’ble Supreme Court has

held that the reasoning of filling up of the lacunae of the

prosecution case through an application under Section 311 of the

CrPC cannot be an absolute bar for allowing an application under

Section 311. The learned counsel refers to paragraph no. 44 of
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the said judgment which reads as under:-

44. The right of the accused to a fair

trial is constitutionally protected under Article 21.

However, in Mina Lalita Baruwa [Mina Lalita

Baruwa v. State of Orissa, (2013) 16 SCC 173 :

(2014) 6 SCC (Cri) 218] , while reiterating

Rajendra Prasad [Rajendra Prasad v. Narcotic

Cell, (1999) 6 SCC 110 : 1999 SCC (Cri) 1062] ,

the Court observed that it is the duty of the criminal

court to allow the prosecution to correct an error in

interest of justice. In Rajendra Prasad [Rajendra

Prasad v. Narcotic Cell, (1999) 6 SCC 110 : 1999

SCC (Cri) 1062] , the Court had held that :

(Rajendra Prasad case [Rajendra Prasad v.

Narcotic Cell, (1999) 6 SCC 110 : 1999 SCC (Cri)

1062] , SCC p. 113, para 8)

“8. Lacuna in the prosecution

must be understood as the inherent weakness

or a latent wedge in the matrix of the

prosecution case. The advantage of it should

normally go to the accused in the trial of the

case, but an oversight in the management of

the prosecution cannot be treated as
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irreparable lacuna. No party in a trial can be

foreclosed from correcting errors. If

proper evidence was not adduced or a

relevant material was not brought on

record due to any inadvertence, the court

should be magnanimous in permitting such

mistakes to be rectified. After all, function

of the criminal court is administration of

criminal justice and not to count errors

committed by the parties or to find out and

declare who among the parties performed

better.”

(emphasis supplied)

15. Learned counsel for the petitioners further

refers to paragraph nos. 50 and 51 of the said judgment wherein

the wide ambit of Section 311 was taken into account which

reads as under:

50. The Court while reiterating the principle

enunciated in Mohanlal Shamji Soni [Mohanlal

Shamji Soni v. Union of India, 1991 Supp (1) SCC

271 : 1991 SCC (Cri) 595] stressed upon the wide

ambit of Section 311 which allows the power to be
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exercised at any stage and held that : (Zahira

Habibulla H. Sheikh case [Zahira Habibulla H.

Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004

SCC (Cri) 999] , SCC p. 189, para 44)

“44. The power of the court under Section

165 of the Evidence Act is in a way

complementary to its power under Section

311 of the Code. The section consists of two

parts i.e. : (i) giving a discretion to the court

to examine the witness at any stage, and (ii)

the mandatory portion which compels the

court to examine a witness if his evidence

appears to be essential to the just decision of

the court. Though the discretion given to the

court is very wide, the very width requires a

corresponding caution. In Mohanlal Shamji

Soni v. Union of India [Mohanlal Shamji

Soni v. Union of India, 1991 Supp (1) SCC

271 : 1991 SCC (Cri) 595] this Court has

observed, while considering the scope and

ambit of Section 311, that the very usage of

the words such as, “any court”, “at any

stage”, or “any enquiry or trial or other
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proceedings”, “any person” and “any such

person” clearly spells out that the section has

expressed in the widest-possible terms and do

not limit the discretion of the court in any

way. However, as noted above, the very width

requires a corresponding caution that the

discretionary powers should be invoked as

the exigencies of justice require and exercised

judicially with circumspection and

consistently with the provisions of the Code.

The second part of the section does not

allow any discretion but obligates and binds

the court to take necessary steps if the fresh

evidence to be obtained is essential to the

just decision of the case, “essential” to an

active and alert mind and not to one which

is bent to abandon or abdicate. Object of the

section is to enable the court to arrive at the

truth irrespective of the fact that the

prosecution or the defence has failed to

produce some evidence which is necessary

for a just and proper disposal of the case. The

power is exercised and the evidence is
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examined neither to help the prosecution nor

the defence, if the court feels that there is

necessity to act in terms of Section 311 but

only to subserve the cause of justice and

public interest. It is done with an object of

getting the evidence in aid of a just decision

and to uphold the truth.”

51. While reiterating the decisions of this Court in

Karnel Singh v. State of M.P. [Karnel Singh v. State

of M.P., (1995) 5 SCC 518 : 1995 SCC (Cri) 977] ,

Paras Yadav v. State of Bihar [Paras Yadav v. State

of Bihar, (1999) 2 SCC 126 : 1999 SCC (Cri) 104] ,

Ram Bihari Yadav v. State of Bihar [Ram Bihari

Yadav v. State of Bihar, (1998) 4 SCC 517 : 1998

SCC (Cri) 1085] and Amar Singh v. Balwinder

Singh [Amar Singh v. Balwinder Singh, (2003) 2

SCC 518 : 2003 SCC (Cri) 641] this Court held that

the court may interfere even at the stage of appeal

…..

16. While referring to one order passed by the

learned Single Judge Bench of the High Court of Andhra

Pradesh, Amravathi passed in Criminal Petition No. 4390 of

2022, the learned counsel for the petitioners relies upon
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paragraph no. 12 of the said judgment which has taken into

account the principle laid down by the Hon’ble Supreme Court in

the case of AG v. Shiv Kumar Yadav and Others, AIR 2015

SC 3501. The referred paragraph no. 12 is reproduced herein:

“12. This Court is of the considered

opinion that the above said decision aptly applies to

the facts of the present case. At this juncture, it may

be appropriate to refer to some of the principles laid

down by the Hon'ble Supreme Court in AG v. Shiv

Kumar Yadav (AIR 2015 SC 3501) and Others

which are to be kept in mind for exercising power

under Section 311 Cr.P.C., and the relevant to the

present context are:

a) The exercise of widest

discretionary power Under Section 311 Code

of Criminal Procedure should ensure that the

judgment should not be rendered on inchoate,

inconclusive and speculative presentation of

facts, as thereby the ends of justice would be

defeated;

b) The wide discretionary

power should be exercised judiciously and

not arbitrarily;
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c) The object of Section 311 of

Code of Civil Procedure simultaneously

imposes a duty on the court to determine the

truth and to render a just decision. ”

17. In support of her submissions, the learned

counsel further refers to a judgment passed by the Hon’ble

Supreme Court in State of T.N. v. N. Seenivasagan, (2021) 14

SCC 1 and points out paragraph nos. 12 and 13 of the said

judgment which primarily talks about the fact that an application

under Section 311 CrPC can be entertained at any stage of the

trial and the cardinal principle to arrive at a just decision should

be borne in mind. The relevant paragraph nos. 12 and 13 which

have been relied on by the learned counsel for the petitioners are

reproduced herein:

12. In our view, having due regard to

the nature and ambit of Section 311 of the CrPC, it

was appropriate and proper that the applications

filed by the prosecution ought to have been allowed.

Section 311 provides that any court may, at any

stage of any inquiry, trial or other proceedings under

CrPC, 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
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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 true test, therefore, is

whether it appears to the Court that the evidence of

such person who is sought to be recalled is essential

to the just decision of the case.

13. In Manju Devi v. State of

Rajasthan [Manju Devi v. State of Rajasthan,

(2019) 6 SCC 203 : (2019) 2 SCC (Cri) 765] , a

two-Judge Bench of this Court noted that an

application under Section 311 could not be rejected

on the sole ground that the case had been pending

for an inordinate amount of time (ten years there).

Rather, it noted that : (SCC p. 209, para 13)

“13. … the length/duration of a case cannot

displace the basic requirement of ensuring the just decision

after taking all the necessary and material evidence on

record. In other words, the age of a case, by itself, cannot

be decisive of the matter when a prayer is made for

examination of a material witness”. …...
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18. Learned counsel thus submits that the Hon’ble

Supreme Court has authoritatively held that a criminal trial does

not attain finality until the pronouncement of the final judgment

or order of acquittal/conviction and until that definitive point, the

trial remains alive and ongoing proceeding and the court retains a

continuous duty to arrive at the truth and ensure a just decision.

19. Learned APP for the State, on the other hand,

contends that from the petitioner’s own statement it would be

evident that PW-1 was examined on 19.12.2022, while PW-4 was

examined on 13.03.2023, whereas the application for recalling

the said witnesses was filed after more than 18 months and 16

months respectively. Learned APP further submits that from mere

perusal of the application filed under Section 311 CrPC, it is

evident that in paragraph no. 1 the petitioners themselves have

stated that on some points the defence could not properly cross-

examine PW-1 and PW-4. It has been submitted that from their

own admission it clearly shows that they had not properly asked

the questions during the cross-examination and therefore merely

to enable them to put certain questions again at such a belated

stage amount to filling up of the lacuna and therefore the learned

Trial Court had rightly rejected the application under Section 311

CrPC.

20. Learned APP further submits that an
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application under Section 311 CrPC must not be allowed to fill

up lacuna in the prosecution case or in the defence case or to give

an unfair advantage to either party. Learned APP for the State

further submits that the Hon’ble Supreme Court in Swapan

Kumar Chatterjee v. CBI, (2019) 14 SCC 328, has observed in

paragraph nos. 11 and 12 which are reproduced herein:

“11. It is well settled that the

power conferred under Section 311 should be

invoked by the court only to meet the ends of

justice. The power is to be exercised only for

strong and valid reasons and it should be

exercised with great caution and

circumspection. The court has vide power

under this section to even recall witnesses for

re-examination or further examination,

necessary in the interest of justice, but the

same has to be exercised after taking into

consideration the facts and circumstances of

each case. The power under this provision

shall not be exercised if the court is of the

view that the application has been filed as an

abuse of the process of law.

12. Where the prosecution
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evidence has been closed long back and the

reasons for non-examination of the witness

earlier are not satisfactory, the summoning of

the witness at belated stage would cause great

prejudice to the accused and should not be

allowed. Similarly, the court should not

encourage the filing of successive

applications for recall of a witness under this

provision.”

21. It has thus been submitted that the present

application has also been filed at a belated stage and there has

been no reasoning given whatsoever as to why the application

was not filed earlier. In the present case, the PW-1 was examined

on 19.12.2022 while PW-4 was examined on 13.03.2023. An

application for the recall was filed on 05.07.2024. It has thus

been submitted that the present application is misconceived and

there is no illegality in the impugned order passed by the learned

Trial Court and the present application is fit to be dismissed in

limine.

22. Having heard the learned counsel for the

parties and also perused the various annexures brought on record,

specifically the deposition of the relevant witnesses and the

application made under section 311 CrPC by the petitioners
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before the learned Trial Court, it transpires that as a matter of

fact, the PW-1 was examined on 19.12.2022 while PW-4 was

examined on 13.03.2023. I also find that PW-1 was extensively

cross-examined on behalf of all the accused persons while PW-4

was also cross-examined by all the accused persons on the

relevant dates. It is also observed that the petitioners waited for

six prosecution witnesses to be examined and only after 16

months of the examination of PW-4, an application under section

311 CrPC was filed to recall PW-1 and PW-4 for further cross-

examination as certain questions were not put to them and they

were not examined properly.

23. The application filed under section 311 by the

petitioners before the learned Trial Court in paragraph no. 1 reads

as under:

“1. That aforementioned Pws

examined by the prosecution and cross examination

by the defence but on the some points they couldn’t

cross examined properly.”

24. From the perusal of the same, it is evident that

the petitioners admit to the fact that certain questions on some

points could not be put during the cross-examination which in

my opinion amounts to filling up the lacuna as an application

under section 311 CrPC cannot be entertained solely because the
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defence failed to put certain questions in the earlier examination

of witnesses. It is a settled law that Courts exercise this power

judiciously only when recalling the witness is essential for a just

decision and not to remedy the defence's own negligence and

laches. It is not the purport of section 311 CrPC that mere

submission that some questions could not be put to the

prosecution witnesses during their lengthy cross-examination,

cannot be a ground to recall a witness who has been already

examined and cross-examined fully. In the opinion of the court,

an application under Section 311 CrPC cannot be allowed to fill

the lacuna of prosecution and defence case and no prosecution

witness be called for examinations/ cross-examination merely

because certain questions were not put to him properly on some

points.

25. At this juncture, reference may be made to the

judgment of the Hon’ble Supreme Court in the case of State

(NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402,

wherein it has been held that “discretion given to court for

recalling a witness to be exercised judiciously to prevent

failure of justice. Mere observation that recall was necessary

“for ensuring fair trial” is not enough unless there are

tangible reasons to show how fairness to trial suffered

without recall.”
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26. This court also finds that there is no reason

assigned for the delay in moving the application and only a

statement that their cross-examination is necessary for the ends

of justice and fair play does not entitle the petitioners to recall the

aforecited two witnesses only because they missed out on certain

query to be put to them. To the understanding of this court,

allowing such application would amount to giving an unfair

advantage to the defence side to allow them to put questions to

witnesses which they had missed on the previous occasion during

their cross-examination of the prosecution witnesses.

27. On perusal of the questionnaire, it is also clear

that these questions could have been put to the witnesses at the

relevant time and there is no change of circumstance under which

such questionnaires were prepared and the witnesses needed to

be recalled and moreover the defence through such questions

would take undue advantage of falsifying the other witnesses.

28. It is settled position of law that an opportunity

of fair trial has to be given to the accused but it should also be

taken into account that no parties can be permitted to fill up the

lacuna by moving an application that some questions could not

be put to certain prosecution witnesses during their cross-

examination. The learned trial court was correct in observing that

if such applications are allowed it would become an unending
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process and thus delay the trial. In such circumstances, the

petitioners have not been able to show any illegality in the

impugned order passed by the learned trial court.

29. In view of the aforesaid discussions, this court

do not find any error in the impugned order and therefore I am

not inclined to interfere with the same.

30. Accordingly, the present application invoking

the inherent jurisdiction of this Hon’ble High Court under

Section 482 CrPC is sans merit and hence dismissed.

(Sourendra Pandey, J)

Aditya/-

AFR/NAFR
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Uploading Date 20.01.2026.
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