1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 29 of 2026 1 - Piyush Patel S/o Late Rakesh Patel Aged About 21 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 2 - Ayush Patel S/o Late Rakesh Patel Aged About 22 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 3 - Birendra Patel S/o Chitrakoot Patel Aged About 38 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 4 - Ghuran Patel S/o Hridayjood Patel Aged About 65 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 5 - Kuldeep Patel S/o Thakur Dayal Patel Aged About 32 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 6 - Mohan Patel S/o Hridayjood Patel Aged About 52 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 7 - Pramod Patel S/o Daya Prasad Patel Aged About 50 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. 8 - Sadanand Patel S/o Mohan Prasad Patel Aged About 27 Years R/o Village Injani, Police Station Chalgali, District Balrampur-Ramanujganj C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Police Station Chalgali, District - Balrampur- Ramanujganj (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Anand Mohan Tiwari, Advocate. For Respondent(s) : Mr. Anish Tiwari, Dy. Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 08/01/2026 1. The present petition is listed for orders on default pointed out by the Registry. The default is waived. 2. Heard. ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.01.08 17:30:26 +0530 2 3. The present petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the accused persons/petitioners against the order dated 28.10.2025, passed by learned Sessions Judge, Balrampur- Ramanujganj in Criminal Revision No. 39/2025, whereby the criminal revision filed by the accused persons/petitioners have been rejected and the order dated 16.07.2025 passed by learned Judicial Magistrate First Class, Wadrafnagar rejecting the application of the accused persons/petitioners under Section 311 of the Cr.P.C., is affirmed. 4. The brief facts of the case are that the petitioners are the accused persons in Criminal Case No. 233/2021 pending before the learned Judicial Magistrate First Class, Wadrafnagar for the offences under Sections 294, 506, 323, 427 and 147 of IPC. In the criminal case before the learned trial Court PW-1 Baban Singh Patel, PW-2 Urmila Patel, PW-3 Kavita Patel have been examined and cross-examined on 04.05.2024. PW-4 Chitrakut Prasad Patel and PW-5 Ramendra Patel have been examined and cross-examined on 23.07.2024. On 24.03.2025 an application was filed by the accused persons/petitioners under Section 311 of Cr.P.C. for recalling of the witnesses of PW-1 Baban Singh Patel, PW-3 Kavita Patel and PW-5 Ramendra Patel on the ground that they were not effectively cross-examined by their earlier counsel and few points are being left over by them. After hearing the parties, the learned trial Court, vide its order dated 16.07.2025 rejected the application holding that the witnesses were examined and cross-examined by their counsel on 04.05.2024 and 23.07.2024 respectively and the present application has been filed on 24.03.2025 which is after lapse of long time and the sufficient opportunity to cross-examine was provided by the learned counsel appearing for the accused persons and it appears that to fulfill the lacuna the application has been filed. 5. The order dated 16.07.2025 passed by learned trial Court was challenged by the petitioners/accused persons by filing a revision before the learned 3 Sessions Judge, Balrampur-Ramanujganj. After hearing the parties the revision filed by the accused persons/petitioners have also been dismissed vide its order dated 28.10.2025, which is under challenge in the present petition. 6. Learned counsel for the accused persons/petitioners would submit that on the date when the witnesses were cross-examined by their counsel, the witnesses were not properly cross-examined as the counsel who were cross- examined the witnesses was the counsel in the revenue proceeding and thereby some important facts could not be asked from the witness and left over by the earlier counsel. When the present counsel was substituted by the accused persons to defend their case before the learned trial Court, he considered the cross-examination of the witnesses to be deficient in defence of accused persons, therefore, filed the application for recalling of the aforesaid three witnesses for their recross-examination. He would further submits that for the fault of the counsel the parties may not be suffer and the opportunity to recross-examine the witnesses may be provided to the accused persons/petitioners. The accused persons/petitioners are ready to bear the expenses of recalling of the witnesses, therefore, the petition may be allowed. 7. On the other hand, learned counsel appearing for the State opposes and submits that the witnesses have been duly cross-examined by the counsel appearing for the accused persons and subsequently the application under Section 311 of the Cr.P.C. was filed after belated stage that too in view to fulfill the lacuna after examination of the other witnesses which has righlty been dismissed by the learned trial Court, therefore, there is no merits in the petition and the same is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the material annexed with the petition. 4 9. From the document annexed with the petition, it transpires that PW-1 Baban Singh Patel and PW-3 Kavita Patel have been examined and cross- examined on 04.05.2024 and PW-5 Ramendra Patel have been examined and cross-examined on 23.07.2024. It further transpires that at the time when the witnesses were cross-examined by the counsel, the accused persons were present before the Court and in their presence the witnesses have been cross-examined. On the subsequent stage, that too on 24.03.2025, the application for recalling of the witnesses for their recross-examination have been filed. It is worthy to mention here that the copy of the application has not been annexed in the present petition which has been filed before the learned trial Court to show that on which point or on what ground the accused persons/petitioners are claiming recalling of the witnesses for their recross-examination. 10.From perusal of the order passed by the learned trial Court, it also transpires that after lapse of 07 dates of hearing, the application has been filed on 24.03.2025, and the sufficient opportunity of cross-examination of the witnesses have been provided to the learned counsel who were appearing for the accused persons. True it is that the cross-examination is valuable right of the accused persons and the accused persons cannot be punished for any fault of the counsel, yet the accused persons/petitioners have failed to substantiate their ground on which they are seeking recalling of the witnesses for their recross-examination. The witnesses cannot be recall for their recross-examination after such a long time to fulfill the lacuna that too after cross-examination of some other witnesses. Once the examination and cross-examination of the witnesses have been completed, in the subsequent and belated stage that too on vague ground, they cannot be called for their recross-examination, except for the other compelling reasons which may prejudice the defence of the accused persons. 5 11. In the matter of “Ratan Lal vs. Prahlad Jat” (2017) 9 SCC 340, the Hon’ble Supreme Court has held in Para-16, 17, 18, 19, 20, 21 and 22 that: “16. That brings us to the next question as to whether the High Court was justified in setting aside the order of the Sessions Judge and allowing the application filed by PWs 4 and 5 for their re-examination. For ready reference Section 311 of the Cr.P.C. is as under: “311. Power to summon material witness, or examine person present.- 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”. 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v. State of Uttar Pradesh and Anr., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:- “17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously”. 19. In Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006) 3 SCC 374, this Court has considered the concept underlining under Section 311 as under:- “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case 6 of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind”. 20. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402, it was held thus:- “…………… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined”. 21. The delay in filing the application is one of the important factors which has to explained in the application. In Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:- “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5- 1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed”. 22. Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed 7 the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order. ” 12. From perusal of the impugned order makes it clear that the witnesses were examined and cross-examined fully long back on 04.05.2024 and 23.07.2024 and sufficient opportunity for cross-examination was provided to the counsel who represented the accused persons before the learned trial Court. After a passage of time the accused persons have filed an application for re-cross- examination on the ground that some of the facts was left over to brought in their cross-examination. Only reason has been assigned for the delay in moving the application that after change of the counsel they consider it to be necessary for recalling for their recross-examination. The entire scenario shows that the witnesses may be won over by the defence. It is settled law that the benefit of Section 311 of the Cr.P.C. cannot be extended to the accused persons to fill up the lacuna. Mere submissions that some questions could not be put to the witnesses in their cross-examination, cannot be a ground to recall them who have already been examined and cross-examined sufficiently. The provisions of Section 311 of Cr.P.C. can be invoked in order to meet ends of justice for strong and valid reasons, with great caution and circumspection and not to permit the accused persons to call the witnesses again and again for their recross-examination. 13. In view of the above discussion, I do not find any error in the order impugned and is not inclined to interfere with. Accordingly, the present petition is liable to be and hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Alok