In a significant judgment clarifying the scope of judicial discretion under Section 311 of the Code of Criminal Procedure, 1973, the Supreme Court of India held that the power to recall or summon witnesses must be exercised “only for strong and valid reasons and with great caution and circumspection.” The Court observed that such power cannot be misused by the accused to delay trial proceedings or manipulate the process of justice.
The decision came in Ashutosh Pathak vs State of Uttar Pradesh & Anr. [SLP (Crl.) No. 10852 of 2024], where a Division Bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah upheld the judgment of the Allahabad High Court (Lucknow Bench), refusing to interfere with the Trial Court’s orders that had partly rejected and subsequently closed the opportunity to examine a key witness.
Background of the Case
The case originated from an FIR registered on 30 April 2018 by the petitioner’s wife, Shikha Pathak, alleging dowry harassment and threats to life. The FIR was filed under Sections 498-A, 323, 504, and 506 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The complainant alleged that after she was called back by the petitioner’s friend Vinay Kumar Pathak to reconcile, she, along with her mother and children, was locked in a kitchen and threatened to be burnt alive. The police later rescued them.
Charges were filed against the petitioner and his family. Among the 16 listed witnesses were Vinay Kumar Pathak and Kanak Lata Singh. While the prosecution examined only three witnesses, the petitioner filed an application under Section 311 CrPC in 2023 to summon both Vinay and Kanak Lata as independent witnesses.
Trial Court and High Court Proceedings
The Trial Court allowed the application only in part on 18.05.2024, summoning Vinay Kumar Pathak. However, when the matter was listed for defence evidence on 30.05.2024, no proceedings were recorded. On 05.06.2024, though the witness was present, the petitioner sought adjournment citing the illness of counsel, and the adjournment was granted with a cost of ₹1,000. On 06.06.2024, the witness did not appear, and the Trial Court closed the opportunity to examine him.
The petitioner approached the High Court under Section 482 CrPC to quash the orders, which was dismissed on 03.07.2024. This led to the present Special Leave Petition before the Supreme Court.
Submissions Before the Supreme Court
Petitioner’s counsel contended that both witnesses were part of the prosecution list and were also mentioned in the complainant’s evidence. It was argued that since Vinay Kumar Pathak was a listed prosecution witness, the prosecution should have conducted the examination-in-chief. The petitioner challenged the closure of the opportunity to examine the witness, claiming it violated basic principles of criminal procedure.
Respondent No. 2 (the informant) submitted that the petitioner had been repeatedly delaying the trial. The informant’s cross-examination had been completed in 2020–2021, and statements under Section 313 CrPC were recorded in May 2023. The Trial Court had already rejected a previous application under Section 311, and the petitioner was misusing the process to prolong the proceedings.
The State of Uttar Pradesh supported the informant’s position and sought dismissal of the petition.
Supreme Court’s Observations and Decision
The Bench, while dismissing the petition, examined the statutory language of Section 311 and the settled legal principles. Citing its earlier ruling in Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086, and a range of precedents including Ratanlal v. Prahlad Jat and Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court reiterated:
“The power under this section 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… the court should not encourage the filing of successive applications for recall of a witness under this provision.”
The Court held that while the power under Section 311 is discretionary and wide, it must be used judicially and not arbitrarily. It rejected the petitioner’s argument that the prosecution was obligated to examine Vinay Kumar Pathak, noting that he was summoned at the behest of the petitioner as a defence witness.
The Bench observed:
“From the above sequence of events, it is crystal clear that the defence was given ample opportunity to examine the witness… We are not in agreement with the argument… that it was incumbent on the prosecution to examine him.”
The Court further criticised the petitioner’s conduct, stating:
“The conduct of the petitioner in preferring successive applications under Section 311… and seeking adjournments, goes to show his evasive tactics, non-cooperation and disinterest in early conclusion of the trial. This Court will not be party to such abuse of the process of law.”
Conclusion
Finding no merit in the petition, the Supreme Court dismissed the Special Leave Petition and affirmed the High Court’s decision. The judgment reinforces judicial restraint in entertaining recall applications under Section 311 CrPC, especially when invoked at belated stages or as tools of delay.
No costs were imposed.
Citation: Ashutosh Pathak vs State of Uttar Pradesh & Anr., SLP (Crl.) No. 10852 of 2024
