Kanoon Ki Dastak
Anantnag | In a significant ruling that reinforces the principles of judicial efficiency and victim dignity, the Principal Sessions Judge Anantnag, Mr. Tahir Khurshid Raina, dismissed a defence application under Section 311 of the Criminal Procedure Code (corresponding to Section 348 of the BNSS) seeking recall of four prosecution witnesses in a high-profile 2020 daylight murder case.
The Court made a scathing observation, stating:
“If it is allowed, it simply means the trial has become hostage to the changing choice of counsels of the accused… New counsel, new questions, and new cross-examination. Is this a trial or an investigation being conducted at will?”
This pronouncement came in a case arising from FIR No. 94/2020, registered at Police Station Kokernag, where 14 individuals, including Ashraf Sheikh, stand accused of committing murder, attempt to murder, criminal conspiracy, and other serious offences under Sections 302, 307, 120-B, 341, and 447 IPC. The murder, committed in broad daylight, had sparked significant public concern in South Kashmir.
The prosecution had concluded its evidence on November 7, 2024, following which the Court had directed the defence to begin its evidence. However, on April 10, 2025, the defence moved an application under Section 311 CrPC, seeking recall of Prosecution Witnesses No. 1 to 4, claiming that certain “material questions” had inadvertently been left out during their earlier cross-examination.
The application was strongly contested by the Public Prosecutor, who argued that the witnesses had already withstood thorough cross-examination and that the defence was using the provision as a pretext to delay the trial and fill gaps in its case.
Dismissing the application, the Court undertook a detailed examination of the law under Section 311 CrPC, noting that:
“While the provision empowers the court to recall witnesses to secure a just decision, it is not a tool to reopen the trial at the whim of the defence — particularly not to compensate for strategic errors or omissions.”
Importantly, the Court noted that the original cross-examination was conducted by a senior counsel — a former judicial officer — whose competence and diligence could not be questioned. The current application was filed three years after the change of counsel, at a stage where the defence should have been leading its own evidence.
“The trial cannot become an endless cycle where every new counsel restarts the cross-examination to suit their own style. This would turn the trial into a farce,” the judge remarked.
Noting that two of the witnesses sought to be recalled were close family members of the deceased, the Court observed that:
“Re-calling such witnesses after five years would not only be a sheer harassment but would force them to relive their trauma — just to satisfy the defence’s change of strategy.”
The Court also warned against misuse of legal provisions in the name of fair trial:
“Justice must be fair to all stakeholders — not just the accused. Courts must shield the process from abuse, delay, and emotional injury to victims.”