S.311 CrPC Power Cannot Be Invoked to Fill Up Lacunae in Defence

Source: Supreme Court 

Why in News? 

A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma of the Supreme Court, in State of Tripura v. Panna Ahmed (2026), set aside a Tripura High Court order that permitted the recall of a rape victim for further cross-examination. The Court held that Section 311 CrPC (Section 348 BNSS) cannot be invoked merely to fill up lacunae in the defence case, and that directing another recall after a four-year delay would cause unjustifiable hardship to the prosecutrix who had already been examined on four separate occasions.

What was the Background of State of Tripura v. Panna Ahmed (2026) Case? 

• A First Information Report was registered in 2016 alleging offences under Sections 342, 376(1) and 506 of the Indian Penal Code against the accused. 
• The prosecutrix was examined and cross-examined before the Trial Court in 2018. 
• Pursuant to an earlier order of the Tripura High Court, she was recalled, re-examined, and re-cross-examined in 2019. 
• In December 2023, nearly four years after completion of her cross-examination, the accused filed an application under Section 311 CrPC seeking to recall the prosecutrix once again. 
• The application proposed 94 questions to be put to the witness, contending that certain aspects arising from call detail records (CDRs) could not be put to her earlier due to oversight. 
• The Trial Court rejected the application, noting that the prosecutrix had already undergone extensive examination and that the application appeared to be a tactic to delay a trial pending since 2017. 
• The Tripura High Court, by its order dated March 14, 2024, overturned the Trial Court's order and permitted further cross-examination with reference to the CDRs. 
• Aggrieved, the State of Tripura approached the Supreme Court challenging the High Court's order.

What were the Court's Observations? 

The Court made the following key observations: 

Section 311 CrPC — Sparingly Exercised: 

• The Court reiterated that while Section 311 CrPC confers wide powers upon the court to summon or recall any witness at any stage, such powers must be exercised sparingly. 
• The provision can be invoked only when it is essential for a just decision of the case, and not as a matter of routine. 
• The Court categorically held that Section 311 CrPC cannot be exercised merely to fill up lacunae in the prosecution or the defence case.

Hardship to Victim — Rights and Dignity: 

• The Court emphasised the rights and dignity of victims of serious offences, particularly in sensitive cases. 
• The prosecutrix had already been subjected to deposition and cross-examination on four separate occasions before the Trial Court, in addition to having her statement recorded during investigation and before the Magistrate under Section 164 CrPC. 
• Directing another recall would inflict further and unjustifiable hardship upon the prosecutrix. 
• Witnesses, particularly victims of heinous crimes, cannot be expected to repeatedly appear in court to face cross-examination.

Defence Argument on CDRs Rejected: 

• The Court rejected the accused's contention regarding the call detail records, noting that the CDRs had been filed by the prosecution along with the charge sheet and had remained part of the trial record throughout the proceedings. 
• The defence was, therefore, fully aware of the material and could have put relevant questions to the prosecutrix during the earlier rounds of cross-examination. 
• The defence could not be permitted to use the CDRs as a ground for recall when the oversight was entirely attributable to the accused.

Outcome: 

• The Supreme Court allowed the State's appeal, set aside the Tripura High Court's order dated March 14, 2024, and restored the Trial Court's order dated February 6, 2024, which had rejected the recall application. 
• The Court further directed that the trial be concluded by the end of the year, subject to the Trial Court's convenience.

What is Section348 of BNSS? 

Section 348 BNSS, 2023 — Power to Summon Material Witness or Examine Person Present: 

• Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is the provision corresponding to Section 311 of the old Code of Criminal Procedure, 1973 (CrPC), with no substantive change in content. 

Key Provisions: 

• Any Court may, at any stage of any inquiry, trial, or other proceeding under the BNSS, exercise the following powers:  
  • Summon any person as a witness. 
  • Examine any person present in court, even if not formally summoned as a witness. 
  • Recall and re-examine any person already examined. 
• The Court shall (mandatory) summon, examine, or recall any such person if their evidence appears essential to the just decision of the case.

Two-Part Structure: 

• The first part is discretionary — the Court may exercise the power at its own initiative. 
• The second part is mandatory — the Court is obliged to act where the evidence of a person is essential for a just decision.

Judicial Interpretation (applicable to Section 348 BNSS by parity): 

• The power must be exercised sparingly and with caution. 
• It cannot be invoked merely to fill up lacunae or rectify oversights in the case of either the prosecution or the defence. 
• The object is to serve the ends of justice, not to give a party a second opportunity to cure its own lapses. 
• In sensitive cases, particularly involving victims of sexual offences, courts must weigh the hardship caused to the witness by repeated appearances before ordering recall.