The State v. Shri. Vivek Ekka

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE ARINDAM MUKHERJEE CRR/1/2026 THE STATE ... PETITIONER VS.

SHRI VIVEK EKKA ... RESPONDENT For the petitioner : Mr. Sumit Kumar Karmakar For the respondent : Ms. Supreet Sharma Reserved on : January 07, 2026 Judgment on : January 15, 2026 ARINDAM MUKHERJEE, J.

1.

This revisional application by the prosecution arises out of an order dated December 10, 2024 by which an application made by the accused in the criminal trial for recalling the victim (PW-1) after about 8 years was allowed when 7 other witnesses from the side of the prosecution had already been examined.

2.

On a perusal of the application made for recalling the victim (PW-1) which is annexed to this petition, it appears that the accused intended to recall the victim (PW-1) on the following points:- "a) Is it a fact that you were also having love affair with the accused?

b) Is it a fact that you had married the accused according to Christian rights in the church on 02/01/2021 at Ferrargunj?

c) Is it a fact that you and the accused are residing together? d) Is it a fact that the child which was born is being taken care by Vivek Ekka being his biological father?

e) Is it a fact that since you and the accused are residing together leading happy married life and as such you are not willing to proceed with the instant case?

3.

The prosecution has objected to recall of the victim (PW-1), inter alia, on the ground that the victim (PW-1) was fully cross-examined by the defence and the points on which the defence wants to recrossexamine the victim (PW-1) are irrelevant questions. The points on which recall of the witness has been sought for, according to the prosecution, has no relevance with the offence for which the accused has been charged of. The evidence relating to the points on which the victim is sought to be recalled even if is allowed to be adduced will neither assist the Trial Court in deciding the case or will assist the defence as they relate to the period subsequent to the commission of the offence. 4.

On behalf of the defence, it is submitted that the scope of the Section 311 of the Code of Criminal Procedure, 1973 (in short, the CrPC) which is Pari materia , to section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, the BNSS) is very wide. It gives a Court discretion to recall a witness at any stage of trial in order to do complete justice.

5.

The Court has, after considering the scope of such application in the perspective of the facts of the case and the applicable law have exercised its discretion vested in it. The order impugned, therefore, does

not suffer from any material irregularity or illegality for which it has to be interfered with.

6.

On behalf of the defence, the following judgments have been relied upon in support of their contention.

i) (2017) 14 SCC 809 (Girish Kumar Suneja vs. Central Bureay of Investigation) ii) (2009) 5 SCC 153 (Sethuraman vs. Rajamanickam) iii) (2013) 5 SCC 741 ( Natasha Singh vs. Central Bureau of Investigation) iv) CRLMC No. 1506 of 2024 (Tapas Swain @ Tapas Kumar Swain vs. State of Orissa and another) of the Orissa High Court.

v) 2024 SCC OnLine Cal 939 (Mahima Management Services Pvt. Ltd. vs. Creative Property Developers Pvt. Ltd. and another). 7.

By relying the judgment in Girish Kumar Suneja (supra) and Sethuraman (supra), it is contended by the respondent (defence) that a revisional application under Section 482 of the CrPC is not maintainable in the facts of the instant case as it stems out of an interlocutory order. 8.

The respondent, by relying upon the judgment in Natasha Singh (supra) says that the main object of the provision of Section 311 of the CrPC is fair trial and it is the duty of the Court to ensure such fairness. The trial Court, after considering the materials on record found that to maintain the fairness of the trial, the victim (PW-1) is required to be recalled. There is as such no question of interfering with such order. 9.

The respondent by placing the judgment of Tapas Swain @ Tapas Kumar Swain (supra) submits that there is no absolute bar under Section 33 (5) of the Protection of Children from Sexual Offences Act, 2012 (in

short, POCSO) to recall a victim witness. Every case has to be weighed on strength of its own evidence and if necessary child witness can be recalled. The learned Trial Judge in the instant case fell that the witness was to be recalled had ordered to recall the victim (PW-1). 10.

By relying upon Mahima Management Services Pvt. Ltd. (supra), the respondent contends that a witness can be recalled for crossexamination at any stage of the trial Court. The trial Court, after considering the materials on record, having exercised its jurisdiction to recall the victim girl and as such the order is not required to be interfered with.

11.

After hearing the parties, considering the materials on record and the judgments cited at the bar, it is necessary to look into the provision of section 311 of Cr.P.C and the scope thereof. The provision of Section 311 of the CrPC is set out hereinunder for better understanding. "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."

12.

The provision of the CrPC is procedural in nature. The substantive law being the Indian Evidence Act, 1872 (in short, the 1872 Act) now replaced by the Bharatiya Sakshya Adhiniyam, 2023 (in short, the BSA). Section 138 of the 1872 Act which is Pari materia, to Section 148 of the BSA provides for the order of examination. The provisions of the Section 138 are set out hereinunder.

" 138. Order of examinations. -- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. -- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter." 13.

On a reading of the provision of the Section 138 of the 1872 Act it is apparent that a witness shall be first examined-in-chief, if the adverse party so desires then cross-examined, then if the party calling him so desires, the witness may be re-examined. The examination-in-chief and cross-examination must relate to relevant facts, but the crossexamination need not to be confined to the facts to which the witness testified on his/her examination-in-chief. The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross-examine upon that matter.

14.

On the other hand on reading of provision of Section 311 of the CrPC, it is clear that a witness or any person already examined can be recalled and reexamined and the Court can summon and examine, recall or re-examine any such person or witness, if his evidence appears to it to be essential to the just decision of the case. 15.

The Hon'ble Supreme Court in the judgment reported in 2021(10) SCC 598 (Criminal Trials Guidelines Regarding inadequacies and

Deficiencies, in Re vs. State of Andhra Pradesh and others) has laid down the guidelines for conducting a Criminal Trial. 16.

The issue as to the object of Section 311 of CrPC has been discussed in details in the judgment of Natasha Singh (supra), the Hon'ble Supreme Court in the said judgment after considering various judgments delivered by the Hon'ble Supreme Court prior to the said judgment, has held the followings :- "9. In Mir Mohd. Omar v. State of W.B. this Court examined an issue wherein, after the statement of the accused under Section 313 CrPC had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 CrPC, in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for.

10. In Mohanlal Shamji Soni v. Union of lndia this Court examined the scope of Section 311 CrPC, and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 CrPC, wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

11. In Rajeswar Prasad Misra v. State of W.B. this Court dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the court must exercise such power. The Court further held as under: (Mohanlal Shamji Soni case, SCC p. 283, para 27)

"27. ... the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."

(emphasis added)

12. In Rajendra Prasad v. Narcotic Cell this Court considered a similar issue and held as under: (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 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 added)"

17.

After discussing the procedure in paragraphs 20 and 21, the Hon'ble Supreme Court has held the followings:-

20. Undoubtedly, an application filed under Section 311 CrPC must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned trial court prejudged the evidence of the witness sought to be examined by the appellant, and thereby caused grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 CrPC. By doing so, the trial court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case.

Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the handwriting expert may therefore be necessary to rebut the evidence e of Rabi Lal Thapa (PW 40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the handwriting expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not.

court is justified in weighing evidence, only and Only once the same has been laid before it and brought on record. Mr B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or alleged to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.

21. The High Court has simply quoted relevant paragraphs from the judgment of the trial court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine the said three witnesses. 18.

On a reading of entire judgment in Natasha Singh (supra), it will appear from the paragraph No. 19 that the application considered in that case was made by the defence for recalling of the defence witness and not the witness of the prosecution. It will also appear that a brief summary of the nature of evidence that would be provided by the defence witness were mentioned in the said application.

19.

On a perusal of the order impugned it appears that there is no discussion relating to the relevancy of the points on which the accused intended to recall the victim (PW-1). The trial Court had proceeded only on the basis of the Court's power under Section 311 of the CrPC. 20.

The trial Court in Natasha Singh (supra) had allowed the application which was mechanically dismissed by the High Court. The Hon'ble Supreme Court had set aside the order of the High Court for such mechanical rejection and further held that no prejudice will be caused to the prosecution, if the defence witnesses were recalled for the purpose as mentioned in the said application.

21.

There is no dispute as the ratio laid down in Natasha Singh (supra) but it does not relate to the facts of the instant case where the victim (PW-1) being the witness of the prosecution has been sought to be recalled for reexamination after about 8 years when 7 other witnesses of the prosecution have already been examined and cross-examined in the meantime.

22.

It is to be further noted that in paragraph No. 8 of the said judgment that the Court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the Court. there is no such findings by the trial Court in the instant case.

23.

In paragraph No. 12 of Natasha Singh (supra), the Hon'ble Supreme Court had approved the view expressed in the judgment reported in (1999) 6 SCC 110 (Rajendra Prasad v. Narcotic Cell) to hold that 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.

24.

In the light of such observations, assuming without admitting that the defence intends to bring on fresh evidence to facilitate a just decision then also the point of which the PW-1 is sought to be recalled for reexamination has no relevance to the charges levelled against the

respondent-accused. The points clearly demonstrate that the same relates to fact post commission of the alleged offence. Admittedly, the victim (PW-1) was of 16 years age at the time when the first information report was registered. Subsequent events after the victim (PW-1) became major have no relevance to the charges levelled against the respondentaccused under the POCSO Act. There is no dispute raised as appears from the record about the age of the victim (PW-1) at the time of commission of the alleged offence as it is the case of the respondent as apparent from record that she was a minor and subsequently had become major when she allegedly married the respondent-accused and is staying with him with her child. As will appear from the provision of the 1872 Act being the substantive law that the points of examination shall be confined to the fact for which the witness testified on his examinationin-chief. In cross-examination it may not be confined to such facts only but should be relevant for adjudication of the issues. 25.

Assuming without admitting that the points on which the victim (PW-1) is sought to be recalled can be beyond the facts to which the victim testified in her examination-in-chief then, the facts subsequent to the victim being major has no relevance to the adjudication of the charges of POCSO levelled against the accused since the victim girl was a minor at the time of commission of the alleged offence. 26.

The view taken in Natasha Singh (supra) had fallen for consideration before the Hon'ble Supreme Court in various judgments, some of which are referred to herein. Natasha Singh (supra) fell for

consideration in (2016) 2 SCC 402 ( State (NCT of Delhi) vs. Shiv Kumar Yadav and another ) where an application was made by the accused for recall of some of the witness of the prosecutorix. The Trial Court dismissed the said application but the High Court allowed the same. The Hon'ble Supreme Court after discussing the law in respect of the provision of Section 311 of CrPC had set aside the order of the High Court and rejected the position upholding the order of the Trial Court. In (2019) 6 SCC 203 (Manju Devi vs. State of Rajasthan and another) the application under Section 311 of CrPC was made by the mother of the victim for summoning the doctor who had done the post mortem of the body of the victim when no definite opinion from the board of experts was available.

The Trial Court and High Court rejected the application which was set aside by the Supreme Court allowed the petition by setting aside the orders of the High Court and Trial Court on the facts of such case after observing that "the Court must satisfy itself that it was in fact essential to examine such witness or to recall him for further examination in order to arrive at a just decision in the case". There is no such finding by the Trial Court in the instant case. 27.

In (2021) 14 SCC 1 (State vs. N. Seenivasagan) the ratio laid down in Natasha Singh (supra) has been approved. In the said case the application under Section 311 of CrPC had been made by the prosecution for marking some documents as exhibit. The said application was dismissed and the order of dismissal was upheld by the High Court in revision. The application was allowed by the Supreme

Court in the facts of the said case which is in great variance with that in the case in hand. The Supreme Court heavily relied upon the findings of Natasha Singh (Supra) as to the object of Section 311 of CrPC. 28.

In a more recent judgment of the Supreme Court reported in 2023 SC OnLine SC 1086 (Satbir Singh vs. State of Haryana and others), it has been held that a belated application for recalling of a witness under the provision of Section 311 of CrPC has to be judged with cautioned by referring to the facts of the case in details as cross-examination having stood closed long back which demonstrate that the same was satisfactory and as such was closed and was not sought to be reopened immediately thereafter. In the said case the complainant had made an application under section 311 of CrPC for recalling him as a witness. The application has warranted as the complainant (appellant before the Supreme Court) was examined prior to report of Central Forensic Science Laboratory was available. The Hon'ble Supreme Court after accepting the wide powers available to a Court under Section 311 of CrPC that the discretionary power so available has to be exercised judicially for the reasons stated by the Court and not arbitrarily or capriciously. The application was allowed in the facts of that case.

29.

In the instant case, the victim was examined and cross-examined in 2017 subsequent thereto 7 other witnesses have been examined and cross-examined. The application for recall of the victim (PW-1), after about 8 years, is at a belated stage. Even though only on the application under Section 311 of CrPC having been made at a belated stage is held

not to be fatal in some of the judgments of the Hon'ble Supreme Court but that is depended on the facts of the case to ensure fair trial. In the instant case recall of the PW 1 is sought for examining her in respect of events after commission of offence and when she has become a major in 2021. Although, appreciation of evidence at the stage of deciding an application under Section 311 of CrPC is not permitted but relevancy of the grounds on which recall is sought for has to be prima facie considered. In the instant case, the said issue has to be decided against the accused who applied under Section 311 of CrPC. 30.

The judgments in Girish Kumar Suneja (supra) and Sethuraman (supra) so far as it relates to the maintainability of an application under Section 482 of the CrPC is concerned against an order under section 311 of CrPC, is not applicable to this case. The Hon'ble Supreme Court in Girish Kumar Suneja (Supra) considered the scope of an application under Section 311 of the CrPC and upheld the objects thereof as discussed hereinabove. The Supreme Court in the said judgment while dealing with the provision of Section 482 in the light of the provisions of Section 397 (1) and 397 (2) of CrPC never said that a revisional application against an order passed in an application under Section 311 of CrPC is an interlocutory order or that a revision is not maintainable against the same. Two of the judgments referred to hereinabove have also not said that a revisional application under Section 482 of CrPC is not maintainable against an order either allowing or rejecting an application under Section 311 of CrPC. In Sethuraman (supra) the

application under Section 311 of CrPC was made by the defence for production of documents which, on being allowed by the trial Court, was held to be an interlocutory order against which no revisional application lies. In the instant case the application under Section 311 of the CrPC made before the trial Court was not for production of any document. 31.

In the light of the discussion made hereinabove, the order impugned is set aside and the application made by the respondent under the provisions of 311 of the CrPC is dismissed. 32.

CRR/1/2026 is, accordingly, allowed.

33.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( Arindam Mukherjee, J. )