Supreme Court Bars Fourth Recall of Rape Survivor After Seven-Year Trial Delay
A Division Bench of Justices Dipankar Datta and Satish Chandra Sharma held that Section 311 CrPC cannot be used to fill defence lacunae or inflict repeated hardship on a prosecutrix.
The Supreme Court has set aside a Tripura High Court order that would have allowed an accused in a rape case to recall and further cross-examine the prosecutrix for a fourth time, nearly eight years after the FIR was registered. The Court, in State of Tripura v. Panna Ahmed (2026 INSC 584), found that the High Court erred in interfering with the Trial Court's refusal to allow the recall application. The accused had sought the recall on the ground that questions arising from Call Detail Records could not be put to the prosecutrix earlier due to inadvertence — but the Court found that those very records had been filed by the prosecution along with the chargesheet and were available to the defence throughout the trial. The judgment restores the Trial Court's order and directs that the trial be concluded by the year end.
How the Case Reached the Supreme Court
The FIR in this case was registered on 27 June 2016. The prosecutrix alleged that on that morning, after her husband left for Sonamura Court, she visited the residence of the respondent-accused, Panna Ahmed, at around 10:30 a.m. to discuss house rent. She alleged that the accused forcibly confined her, tore her clothes, committed rape, and threatened to kill her if she disclosed the incident. The prosecutrix returned to her rented house in a distressed condition and informed her husband. A chargesheet was filed and charges were framed on 9 August 2016. The trial commenced in 2017 before the Additional Sessions Judge, West Tripura, Agartala, in Sessions Trial (Type-1) No. 38 of 2017, for offences under Sections 342, 376(1) and 506 of the Indian Penal Code, 1860.
The prosecutrix (PW-1) was first examined in chief and cross-examined on 4 June 2018, with further cross-examination on 10 July 2018. The prosecution then sought her recall under Section 311 CrPC. The Trial Court initially rejected that application, but the High Court of Tripura, by judgment dated 30 May 2019, set aside that rejection and permitted re-examination. The prosecutrix was accordingly re-examined and re-cross-examined on 8 August 2019 and 2 November 2019.
Then, on 14 December 2023 — approximately four years after the completion of that re-cross-examination — the accused filed a fresh application under Section 311 CrPC seeking yet another recall of PW-1. The application listed 94 questions and stated that certain aspects of the Call Detail Records of the prosecutrix and the accused could not be brought on record during earlier cross-examination due to oversight. The prosecution opposed the application, arguing it was an attempt to protract proceedings in a case already pending for over seven years.
The Additional Sessions Judge rejected the application on 6 February 2024, observing that the application came four years after the completion of cross-examination, that the trial had been pending for more than seven years, that the prosecutrix had already undergone detailed examination and cross-examination, and that no sufficient ground existed for recall after such prolonged delay. The Trial Court further held that the application appeared to be an attempt to delay the conclusion of the trial.
The accused challenged that order before the High Court under Section 482 CrPC. The High Court, by its judgment dated 14 March 2024, allowed the petition, set aside the Trial Court's order, and directed that the accused be given an opportunity to further examine PW-1 with reference to the call detail records. The State of Tripura then approached the Supreme Court.
The Court's Analysis of Section 311 CrPC
The Court set out the statutory text of Section 311 CrPC, which permits any court to recall and re-examine any person already examined if the evidence appears essential to the just decision of the case. The Court then surveyed its own consistent line of decisions on the scope and limits of this power.
In Natasha Singh v. Central Bureau of Investigation, (2013) 5 SCC 741, the Court had observed that the power must be exercised judiciously and not capriciously, and that an application under Section 311 must not be allowed “only to fill up a lacuna in the case of the prosecution, or of the defence.”
In Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328, the Court reiterated that the power is to be exercised only for strong and valid reasons and with great caution, and that it shall not be exercised if the application is an abuse of the process of law.
In Vijay Kumar v. State of Uttar Pradesh & Anr., (2011) 8 SCC 136, the Court had held that the power may be exercised where proper evidence is not adduced or relevant material is not brought on record due to inadvertence, but that the exercise must be judicial given the width of the discretion.
In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC 402, the Court had emphasised that recall is not a matter of course and that the discretion must be exercised judiciously, balancing the requirement of a fair trial against undue hardship to witnesses and delay in the trial. The Court had observed that “mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons.”
Applying these principles, the Court held that the High Court was not justified in interfering with the Trial Court's order. The power under Section 311 CrPC is wide, the Court said, but it must be exercised sparingly and in a judicious manner, not arbitrarily.
Three Reasons the Recall Was Refused
The Court identified three distinct grounds for restoring the Trial Court's rejection.
First, the prosecutrix had already been subjected to detailed and extensive cross-examination across several hearings: chief examination and cross-examination on 4 June 2018, further cross-examination on 10 July 2018, re-examination on 8 August 2019, and re-cross-examination on 2 November 2019. The accused had ample opportunity to test the veracity of her deposition. The recall application was filed on 14 December 2023, after an inordinate lapse of nearly four years from the completion of cross-examination and approximately seven years after the FIR. No satisfactory explanation was offered for this delay. By the time the application was moved, 19 other prosecution witnesses had already been examined and the trial had substantially progressed.
Second, the principal ground for recall — that questions arising from the CDRs could not be put due to inadvertence — did not hold up on the facts. The CDRs had been filed by the prosecution along with the chargesheet and formed part of the record throughout the trial. The defence was aware of the material and had adequate opportunity to examine the prosecutrix with reference to it. The Court held plainly that the power under Section 311 CrPC cannot be exercised merely to fill up lacunae in the defence case.
Third, the Court addressed the position of the prosecutrix directly. She had already been subjected to the ordeal of 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 recall would inflict further and unjustifiable hardship upon her. The Court observed that witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases, and that victims of heinous crimes face undue hardship if required to repeatedly appear for cross-examination.
Outcome
The Supreme Court allowed the appeal. The impugned judgment and order dated 14 March 2024 passed by the High Court of Tripura in Criminal Petition No. 07 of 2024 was set aside. The order dated 6 February 2024 passed by the Additional Sessions Judge, West Tripura, in Sessions Trial (Type-1) No. 38 of 2017 was restored. Pending applications, if any, were disposed of. The Trial Court was directed to conclude the trial by the year end, subject to its convenience.