Allahabad HC Sets Aside Rejection of Section 311 Application in Case Involving Mentally Challenged Victim

The Lucknow Bench held that age of a case cannot be decisive when summoning material witnesses whose statements assisted a mentally challenged victim's Section 164 Cr.P.C. recording.

The Allahabad High Court's Lucknow Bench, on 15 July 2026, set aside an order by an Additional Sessions Judge, Fast Track Court, Unnao, which had refused to summon two expert witnesses in a rape trial involving a mentally challenged victim. Justice Shree Prakash Singh, sitting singly, allowed the Section 482 Cr.P.C. application filed by the accused, Gulzar Ali, and directed the trial court to decide the Section 311 Cr.P.C. application afresh within eight weeks. The central finding was that the trial court's reasoning — that cross-examination could not be permitted because the witnesses had never been examined-in-chief — was legally untenable, and that the age of a pending case does not override the requirement to examine material witnesses essential to a just decision.

The Dispute Before the High Court

The prosecution's case involved a mentally challenged victim whose statement under Section 164 Cr.P.C. was recorded with the active assistance of two experts, Ms. Kiran Shukla and Ms. Meenu Tiwari, both attached to the BSA Office. It was in that Section 164 statement — not in the First Information Report — that the victim alleged rape against the applicant for the first time. The FIR had alleged only outraging of modesty.

The prosecution never produced these two experts as witnesses during the trial. On 23 March 2026, when the case was already at the stage of arguments, Gulzar Ali moved an application under Section 311 Cr.P.C. seeking to summon PW-1 (the victim's mother) and the two experts before whom the statements had been recorded. The trial court took two months to decide the application, eventually rejecting it on 15 May 2026.

The applicant then approached the Lucknow Bench by way of Application U/S 482 No. 5373 of 2026, seeking to call those witnesses and to set aside the trial court's rejection order.

Why the Trial Court's Rejection Was Challenged

Counsel for Gulzar Ali, Mr. Rahul Kumar Singh, argued that the impugned order was passed without proper application of mind. His case rested on two specific points. First, the experts had played a direct role in recording a statement that introduced a graver allegation — rape — not found in the FIR, making their examination essential for any fair adjudication of what the victim actually said and what role the experts played in shaping that statement. Second, without their examination, the trial court could not reach a correct conclusion on the credibility and scope of the Section 164 statement.

He relied on the Supreme Court's decision in Natasha Singh v. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741, for the proposition that Section 311 Cr.P.C. must be exercised to discover the truth, using the widest possible terms — “any court”, “at any stage”, “any person” — without limiting the court's discretion.

The State opposed the application. The Additional Government Advocate argued that the application was belated: PW-1's statement had been recorded on 1 August 2023, yet the Section 311 application was filed only in March 2026, roughly three years later. The State also contended that since the proposed witnesses had never been examined-in-chief, they could not now be cross-examined.

How the Bench Reasoned

Justice Shree Prakash Singh found that the prosecution had itself failed to produce Ms. Kiran Shukla and Ms. Meenu Tiwari, despite the fact that the victim's Section 164 statement had been recorded in their presence and with their assistance. That failure by the prosecution made the position different from a simple defence attempt to fill gaps in its own case at a late stage.

The bench addressed the trial court's core reasoning directly. The finding that the proposed witnesses could not be summoned because their examination-in-chief had not yet been conducted was, in the court's view, “erroneous and groundless.” Section 311 Cr.P.C. empowers a court to summon any material witness at any stage prior to the pronouncement of judgment. There is no legal bar against summoning a witness for the first time simply because no examination-in-chief has previously been conducted. The court read the statutory language of Section 311 — conferring power on “any court”, “at any stage”, in “any inquiry, trial or other proceeding” — as deliberately and expressly using the widest possible terms, and held that this discretion could not be curtailed merely because of delay in filing the application.

On the delay argument, the court turned to the Supreme Court's ruling in Manju Devi v. State of Rajasthan and Another, (2019) 6 SCC 203. That judgment had held, in paragraphs 12 and 13, that the length or duration of a case “cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record.” The age of a case, by itself, is not decisive when a prayer for examination of a material witness is made.

Justice Singh also drew from Natasha Singh (supra) to affirm that the power under Section 311 must be exercised judicially and not capriciously — not to fill lacunae in the prosecution's case, not to give an unfair advantage to one party, and not as a disguise for retrial. The determinative factor is whether the summoning of the witness is essential to a just decision. Applied to the facts before him, the court held that the statements of the experts, with whose assistance the mentally challenged victim's Section 164 statement was recorded, constituted relevant evidence. This was particularly so given that the allegation of rape surfaced for the first time in that very statement, which was absent from the FIR.

The trial court had also failed to record any finding regarding the irrelevance of the two witnesses. The only reason given for rejection was the absence of a prior examination-in-chief, which the High Court found unsustainable in law.

The court further noted its own awareness that a Section 311 application filed solely to cause delay in trial proceedings can be refused. However, the interest of the accused cannot be sacrificed on an unfounded presumption of delay alone, particularly where the prosecution itself had omitted to produce witnesses who assisted in recording the Section 164 statement of a mentally challenged victim.

Outcome

Justice Shree Prakash Singh allowed Application U/S 482 No. 5373 of 2026 at the admission stage. The impugned order dated 15 May 2026, passed by the Additional Sessions Judge, FTC, Unnao, was set aside. The matter was remitted to the trial court to consider and decide Gulzar Ali's Section 311 Cr.P.C. application afresh, in accordance with law and in the light of the observations made in the judgment, within eight weeks from the date of production of a certified copy of the order. Notice to opposite party no. 2 was dispensed with.