The proper circumstance to recall a

witness
Even though there exists a settled provision about the vulnerabilities and
questions that surface with the use of ‘may’ under “Order” 18 Rule 17, there
still exists a few obscurities that haven’t been managed down the middle with
as much detail. Indeed, even as the presence of a decision to the court to recall
and re-analyze a witness remains clear, the ideal chance to settle on the
decision isn’t discussed enough. While the law, verbally, states that the judge
has the power to re-analyze ‘at any stage’ of the procedures, a mooting banter
exists concerning the perfect time joined by the need for recalling and re-
looking at the witness.

While lawyers, more often than not, have raised this pondering during the court
procedures, researchers of the subject haven’t occupied with a guideline
conversation of the mediation of this rule of the Civil Procedure Code.
Consequently, this uncertainty has been conveyed up to this point on
procedural and strict grounds. It has been reasoned that re-examination
conveys bunches of translucent mishaps and glitches alongside the advantages
it reaps as it hasn’t generally been used in a bonafide way.

India being a nation including a various populace of 133.92 crores with over 3.5
crores pending cases, the stroll to create a target regulation can’t be lovely. The
circumstance for each situation, however equal, can be pretty disparate and
owing to each case. Given this subjectivity, it appears to be incautious and
uncalled for to go for an encompassing umbrella law. Correspondingly, there
exists a need to decipher the disparate circumstances featuring relevance and
the need for a judge to recall a witness.

In a situation where cross-examination has featured a witness’ disordered and

confused confirmation or exhibition, re-examination turns into a need.
Furthermore, the equivalent must be material when discrepancies or logical
inconsistencies are spotted in between the witness’ confirmation and any
previous presentation done by him. On the other hand, if the court needs and is
sure of re-examination prompting explanation of evidence related to the topic,
at that point re-examination must be taken into consideration. Re-examination
has been interestingly used to draw out the varieties and irregularities on the
contrary side’s case and rectify any escape clauses that surfaced in the cross-
examination.

In State of West Bengal v. Arunesh Pathak, the court held that intrigue for re-
examination can’t be denied on the ground that the inquiries that should be
explained from the witness (in the re-examination) had not been determined.
The aforesaid order harmonizes with Justice Altamas Kabir’s judgment
in Vernekar v. Gogate to a significant degree. In his choice, Justice Kabir
expressed that “the position to re-look at a witness can be used to clear any
dubiousness that may have come up during the cross-examination.”
Conclusively, it isn’t important to express the inquiries that the advice wishes
to advance the witness if there exists a requirement of getting a few ambiguities
out through re-examination.

Moreover, in the creator’s feeling, if in cross-examination, an entirely new

arrangement of facts is discovered, the witness shouldn’t be threatened. In such
a case, while the decision to accept the witness or not ought to remain with the
court, re-examination must be granted.

Re-examination comprises an arroyo that hasn’t been visited much often. The
Delhi High Court has seen that Order 18 Rule 17 is to be practised monetarily
and carefully. The rules administering re-examination, are not intended to just
recall a witness for an extra examination. In like manner, without
equivocalness, re-examination for harm control, that is, re-examination to get
rid of the result of a past declaration shouldn’t be promoted. While re-
examination is a need to render equity, a check should be kept on its practice.
Lawyers and judges have disapproved of the work of re-examination for mala–
fide goals as a protracting tactic to defer procedures and its activity without
adequate reason to back it up. In 2017, Allahabad High Court, in Leeladhar v.
Mohammad Ismail Qureshi, expressed that the decision rendered to courts
under Order 18 Rule 17 and Section 151 of the Civil Procedure Code, should be
practised regularly or constantly.

What is the role of a Judge? Is it

accurate to say that he/she is a
searcher of truth or a mere referee?
It is rude to not take note of the trading of blows in between the stands or
positions referenced previously. While the prominent sentiment can be that the
legal executive is bound to setting down decisions to hold the framework under
wraps, the hidden truth encouraging the course to any judgment should be
recognized.

The Civil Procedure Code is a procedural arrangement and not a considerable

one, thus, not Section 151 ponders any power or ward to the courts. Section
151 essentially reinstates the decision inserted in the courts. The
aforementioned section requires results that harmonize with uprightness and
equity to render what should be ‘correct’. Moving a judgment is a simpler
undertaking than looking for a definitive reality. To ensure equity isn’t
undermined and no one is violated, the courts need to consider the entire
picture. Communicatively, ‘truth’ has been called for in recent decisions that
talk about re-examination. Sunita Agarwal J. (Calcutta High Court) shed light
upon the significance of re-examination. It was expressed that “to wipe out an
uncertainty threw by the cross-examination on the examination-in-boss and
enable the witness to come ahead with the entire ‘truth’ of the issues just
mostly discussed in the cross-examination, re-examination is essential.”
Judge Elliot, in his work Advocate, underlined the need to reach reality. He said
that cross-examination can cloud a genuine witness. In this situation, disarray
must be explained and the intensity of the resources must be reinstated.
Ambiguities can be explained and facts can be re-built up by questions that
recollect the witness’ psyche. An investigation of Judge Elliot’s words shows
how cross-examination and re-examination empower the court to reach reality
by getting the vulnerabilities out. To reach this normal, unambiguous ground
known as ‘reality’, the gathering who requested the witness can advance
inquiries relating to the cross-examination.

Therefore, if the court accepts that the intrigue to re-inspect is simply and will
prompt lucidity or disentangle the evidence, or will add to reach reality and
inevitably execute equity, the legal executive must exercise its decision to re-
analyze the witness. In any case, re-analyzing renders the obligation (on the
court) to ensure that it isn’t utilized as a deferring weapon frustrating equity.
Courts’ need and power to reach the core of the issue can be stressed upon by
hampering the incorrect conviction that re-examination is bound to issues
raised in the cross-examination. During a re-examination, any inquiry can
advance the witness if consent is conceded by the court. Thus, if the court
permits the re – analyst to move separated from the issue talked about during
the cross-examination, the person in question has the freedom to do as such.
The Civil procedure Code and The Indian Evidence Act elevate the courts to
affirm that each significant resource related to the case reaches the record. This
is important to reach the correct judgment which considers the standards of
equity and truth.

Power of court to recall and re-

examine a witness
This occurs toward the finish of cross-examination and is done by the gathering
that called the witness. Section 214(3) of the Evidence Act 2011 accommodates
re-examination by expressing that where a witness has been cross-examined
and is then examined by the gathering who calls him, such examination will be
called his re-examination. Section 215(3) of the Evidence Act 2011 further gives
that re-examination will be directed to the clarification of issues referred to in
cross-examination and if another issue is, by authorization of the court,
presented in re-examination, the antagonistic party may additionally cross-
analyze upon that issue.

In like manner, therefore the object of re-examination is to offer the witness a

chance to clarify any conflicting answer during his cross-examination and give
him a chance to clear any uncertainty in his declaration and it must be
restricted to issues raised during the cross-examination. No new issues ought
to be raised without the leave of court. On the off chance that the court permits
the re-analyst to present new issues during the re-examination, the other party
is qualified for re-cross inspection on the new issue raised. Driving inquiries are
not permitted in re-examination. Section 221(2) of the Evidence Act 2011 gives
that driving inquiries will not be posted in examination-in-chief or re-
examination.

The power of a court to recall a witness and re-examine him during the trial of a
criminal case is laid down in Section 311 of the Criminal Procedure Code,
which is reproduced as under:

Power to summon material witness, or examine person present.— Any

Court may, at any stage of any inquiry, trial or another 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.”

Even a cursory look at the above section shows that the court has a vast power
to recall and re-examine a witness during a trial or inquiry or another
proceeding under the Criminal Procedure Code. In a recent case,
namely, Rajaram Prasad Yadav v. the State of Bihar,, the Supreme Court has
highlighted as to how vast the power of the court is in this regard, by observing
that:

“A prominent reading of Section 311 Code of Criminal Procedure would show

that the largest of the powers have been contributed with the courts with
regards to the subject of gathering a witness or to recall or re-analyze any
witness already inspected. A reading of the arrangement shows that the
expression “any” has been utilized as a prefix to “court”, “inquiry”, “trial”, “other
continuing”, “individual as a witness”, “individual in participation however not
called as a witness”, and “individual already inspected”.

By utilizing the said expression “any” as a prefix to the different expressions

referenced above, it is, at last, expressed that every one of that was required to
be fulfilled by the court was uniquely about such evidence that appears to the
court to be fundamental for the only choice of the case. Section 138 of the
Evidence Act, prescribed the request for examination of a witness in the court.
The request for re-examination is additionally prescribed calling for such a
witness so desired for such re-examination. Therefore, a reading of Section 311
Cr.P.C. Furthermore, Section 138 Evidence Act, to the extent that it goes to the
subject of a criminal trial, the request for re-examination at the desire of any
individual under Section 138, should fundamentally align with the prescription
contained in Section 311 Cr.P.C.

It is, therefore, basic that the summon of Section 311 Cr.P.C. What’s more, its
application in a specific case can be ordered by the court, just by remembering
the article and indicating the said arrangement, to be specific, for
accomplishing an only choice of the case as supported by us before. The power
vested under the said arrangement is made accessible to any court at any
phase in any inquiry or trial or other continuing started under the Code to call
any individual as a witness or for looking at any individual in participation,
even though not brought as a witness or to recall or re-inspect any individual
already analyzed. To the extent that recalling and re-examination of any
individual already inspected is concerned, the court should fundamentally
consider and ensure that such recall and re-examination of any individual,
shows up in the perspective of the court to be basic for the only choice of the
case. Therefore, the central requirement is only a choice and for that reason,
the vitality of an individual to be recalled and re-inspected must be found out.
To put it differently, while such a broadest power is contributed with the court,
it is unnecessary to express that activity of such power ought to be made
judicially and with extreme care and alert.”

In R v. Asuquo Etim, it was settled that under Section 200 of the Criminal
Procedure Act, the court can call a witness considerably after the end of the
instance of the barrier, yet to do as such or to so act at such a phase of the
procedure calls for great alert and ought to regularly be restricted to evidence in
rebuttal of the issue raised by the resistance just because – West v. Police or to
clear an issue that has emerged ex-improviso and which no human
resourcefulness would host foreseen on the gathering of the accused.

In R v. Asuquo Etim, the litigant was charged with homicide. It was the
examiner’s case that the thought process of the homicide was the conviction
that the murdered man had caused the passing of someone else by methods for
black magic. One of the appellants presented the offence fresh and matters
relating to native custom in instances of suspected black magic which if
genuine could have truly discredited the evidence of the investigator witness.

The way the judge thereupon called a Native Chief who had been sitting in court
to assert with respect most definitely of this remarkably raised ex-improvise
and the West African Court of Appeal held that the calling of the witness was
fitting. Regardless, it isn’t directly for the court to call evidence after the get-
togethers have closed their respective cases to strengthen the contention
against the charges “Denloye v. MPDC (1968)”

On account of Mohanlal Shamji Soni v. Association of India,, while managing

Section 540 of the old Criminal Procedure Code (which is identical to Section
311 of the new Cr.P.C.), the Supreme Court held that so as to empower the
court to discover the reality and render a fair choice, the helpful arrangements
of Section 540 of the Code (Section 311 of the new Code) are enacted where-
under any court by practising its discretionary authority at any phase of the
enquiry, trial or other continuing can bring any individual as a witness or look
at any individual in participation however not brought as a witness or recall or
re-inspect any individual in participation however not gathered as a witness or
recall and re-analyze any individual already analyzed who are relied upon to
have the option to illuminate the issue in question; in such a case that
decisions happen to be rendered on rudimentary, uncertain and theoretical
presentation of facts, the closures of justice would be vanquished.

On account of Jamatraj Kewalji Govani v. Province of Maharashtra, the

Supreme Court held that:
“No doubt in our criminal ward, legal law gives a power in outright terms to be
practised at any phase of the preliminary to gather a witness or analyze one
present in court or to recall a witness already examined and makes this the
obligation and commitment of the court given the only choice of the case
requests it. As it were, where the court practices the power under the
subsequent part, the request can’t be whether the blame has brought anything
out of nowhere or surprisingly yet whether the court is directly in believing that
the new evidence is required by it for an only choice of the case. In case the
court has acted without the requirements of a reasonable decision, the action is
accessible to examination anyway if the court’s action is real as being in the
help of an impartial decision the action can’t be regarded as outperforming the
area.”

In the wake of thinking about different previous decisions, in the above

instance of Rajaram Prasad Yadav v. Province of Bihar, a seat involving Justices
T.S. Thakur and F.M. Ibrahim Kalifulla of the Supreme Court held that while
managing an application under Section 311 Cr.P.C. [read alongside Section 138
of the Evidence Act], the accompanying standards should be borne as a primary
concern by the courts:

1. Regardless of whether the court is directly in feeling that the new

evidence is required by it? Regardless of whether the evidence tried to
be driven in under Section 311 is noted by the court for an only choice
of a case?
2. The activity of the most stretched out discretionary power under
Section 311 Cr.P.C. ought to ensure that the judgment ought not to be
rendered on undeveloped, uncertain, and theoretical presentation of
facts, as thereby the closures of justice would be crushed.
3. On the off chance that evidence of any witness appears to the court to
be basic to the only choice of the case, it is the intensity of the court to
call and inspect or recall and re-look at any such individual.
4. The activity of intensity under Section 311 Cr.P.C. ought to be
resorted to just with the object of discovering reality or acquiring
legitimate evidence for such facts, which will prompt a fair and correct
choice of the case.
5. The activity of the said power can’t be named as filling in a lacuna in
an arraignment case, except if the facts and conditions of the case
make it apparent that the activity of intensity by the court would
result in making genuine prejudice to the accused, resulting in the
premature delivery of justice.
6. The wide discretionary power ought to be practised sensibly and not
discretionarily.
7. The court must fulfil itself that it was in each respect basic to look at
such a witness or to recall him for an additional examination to show
up at an only choice of the case.
 8. The object of Section 311 Cr.P.C. at the same time powers an
obligation on the court to decide reality and to render a fair choice.
9. The court comes to the result that extra evidence is fundamental, not
because it is difficult to articulate the judgment without it, but since
there would be a failure of justice without such evidence being
considered.
10.The exigency of the circumstance, reasonable play, and great sense
ought to be the shield while practising discretion. The court should
remember that no gathering in a trial can be foreclosed from
correcting blunders and that if appropriate evidence was not
illustrated or a relevant material was not welcomed on the record
because of any coincidence, the court ought to be unselfish in allowing
such slip-ups to be rectified.
11.The court ought to be aware of the position that after all the trial is
basically for the detainees and the court ought to manage the cost of a
chance to them in the fairest way conceivable. In that equality of
reasoning, it is sheltered to blunder for the denounced getting an open
door as opposed to ensuring the arraignment against conceivable
prejudice at the expense of the charged. The court should remember
that inappropriate or fanciful exercise of such discretionary power,
may prompt unwanted results.
12.The extra evidence must not be received as camouflage or to change
the nature of the body of evidence against any of the gatherings.
13.The power must be practised remembering that the evidence that is
probably going to be tendered, would be pertinent to the issue in
question and ensure that a chance of rebuttal is given to the next
gathering.
14.The power under Section 311 Cr.P.C. should, therefore, be summoned
by the court just to meet the closures of justice for solid and
substantial reasons and the equivalent must be practised with care,
alert, and prudence. The court should remember that reasonable trial
involves the interest of the charged, the person in question, and the
general public and, therefore, the award of reasonable and legitimate
chances to the people concerned, must be ensured being a
constitutional objective, just as a human right.

Conclusion
Therefore, it ought to be obvious from over that the intensity of the court to
recall and re-inspect a witness during a trial is very wide, yet this power isn’t to
be practised for topping off the lacunae in the indictment case. Such a witness
ought to be recalled whether it is fundamental for an only choice of the case or
to decide reality. For your situation (as it shows up from your inquiry), on the
off chance that you feel that a witness is being recalled to top off the lacunae in
the indictment case, you may question the equivalent and refer to the above
rules set somewhere near the Supreme Court.
Thus, the unavoidable need to evaluate the layers of laws overseeing recall and
re-examination. Moreover, the author has attempted to transliterate and think
over the insufficiencies, logical inconsistencies, and different issues that revolve
around the current remain of law. While the Judiciary, among numerous
different issues, has passed up a major opportunity to intercede in the
interaction of re-examination and the different impediments that go with it,
researchers of the subject are still to invest the requisite quantum of energy
into this investigation.

The author accepts that surfacing with a target regulation or an achievement to

observe whether to allow re-examination is indiscreet and treacherous, given
the subjectivity of cases that Indian Courts experience. On one hand, consent
to re-inspect can’t be conveyed against each intrigue; then again, its
significance to reach the essence of the issue and get rid of ambiguities can’t be
given up. Hence, the legal executive requires an interpretation of unmistakable
circumstances gauging the centrality and certainty to re-analyze any witness.

Quick approval or objection to bids is requisite to render equity in time, given

the accumulation of cases in India. To keep in a mind that mala-fide requests
or deferring tactics, they shouldn’t be given up without any problem.
Appropriate costs must be given to the gathering who needed to confront the
delay. Moreover, in such cases, a specific date must be taken up to wrap the
case to compensate for the deferral. Re-examination, when used with sick goals,
turns into a case of the Italian expression: “I was well; I needed to feel good; I
took medication, and here I am.”

Exact arbitration alongside the investigation of the reality of the core of the case
is looked for by the legal executive. Re-examination fills in as a viable apparatus
to reach the actuality. The very need to proceed with examination, cross-
examination, re-examination, and another cross-examination or re-cross-
examination (if necessary), reveals to us why the court must reach the core of
each issue and uncover the reality. In the author’s sentiment, the obligation to
reach a judgment is incorporated inside the obligation to look for reality.

References