Himachal Pradesh High Court
Reserved On: 08.01.2026 vs Of on 23 February, 2026
2026:HHC:3582
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 49 of 2026
.
Reserved on: 08.01.2026
Date of Decision: 23.02.2026.
Ashok Kumar ...Petitioner
Versus
of
Monika Sharma ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : M/s Raj Kumar and Avnish
Mandhotra, Advocates.
For the Respondent : None
Rakesh Kainthla, Judge
The present petition has been filed against the order dated November 28, 2025, passed by the learned Judicial Magistrate First Class, Jhandutta, District Bilaspur, H.P. (the learned Trial Court) vide which the application for recall of the witness and placing the documents on record was dismissed.
2. It has been asserted that the respondent filed a petition under Section 12 of the Protection of Women from 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 23/02/2026 20:31:04 :::CIS 22026:HHC:3582 Domestic Violence Act (in short, DV Act). The present petitioner moved an application under Section 311 Cr.P.C. for placing .
additional documents on record, and to summon the proprietor of Diamond Jewellery House, Ghumarwin, to verify the sale record and recall the complainant for the production of original bills. These documents are necessary for the just adjudication of of the dispute. The learned Trial Court dismissed the application.
Learned Trial Court failed to record any finding regarding the rt relevance of the documents and exceeded its jurisdiction while dismissing the application. Hence, the present petition.
3. M/s Raj Kumar and Avnish Mandhotra, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The production of the document was necessary for the just adjudication of the dispute.
The documents did not bear any GST number, and it was necessary to cross-examine the complainant and the owner of Diamond Jewellery House regarding this aspect. Therefore, they prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
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4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
.
5. The application (annexure P2) mentions that production of the document and recall of the witnesses were essential in the interest of justice. No prejudice would be caused of to the other side in case the application is allowed, and the witnesses are ordered to be recalled. The application is silent as rt to why the documents could not be produced on record earlier, or the questions which are sought to be asked in the cross-
examination were not put when the witnesses were being cross-
examined. Thus, the application could not have been allowed without asserting the necessary facts.
6. It was submitted that the applicant had changed his counsel, and the questions were not asked by the earlier counsel.
This submission will not help the petitioner. It was laid down by the Hon'ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402: 2015 SCC OnLine SC 799 that a witness cannot be recalled on the change of counsel. It was observed at page 416:
"15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on ::: Downloaded on - 23/02/2026 20:31:04 :::CIS 4 2026:HHC:3582 the ground that cross-examination was not proper for reasons attributable to counsel. While advancement of justice remains the prime object of law, it cannot be .
understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent, particularly when counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of counsel can have serious consequences on the conduct of trials and of the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the rt victims, especially in cases of heinous crimes, if they are required to repeatedly appear in court to face cross-
examination."
7. A similar view was taken by the Allahabad High Court in Girish v. State of U.P., 2020 SCC OnLine All 1063, wherein it was observed:
6. Considering the facts and circumstances of the case, arguments advanced, and after going through the entire judgment, this court is of the view that the arguments advanced by the counsel are not sustainable and that the plea cannot be taken by the revisionist's counsel that he has been subsequently engaged; therefore, one more opportunity may be given to him. It is within the rights of the litigant to engage any counsel at any stage, but the engagement of the new counsel and the dawn of fresh wisdom upon the first informant cannot be allowed to further delay the matter. The circumstances under which the application was rejected are sufficiently shown in the impugned order. The impugned order does not reflect any element of inconsistency or any abuse of the court's ::: Downloaded on - 23/02/2026 20:31:04 :::CIS 5 2026:HHC:3582 process, which may persuade this Court to interfere in the same."
8. Madhya Pradesh High Court also held in .
Veerendradas Bairagi v. Shreekant Bairagi, 2019 SCC OnLine MP 7006: ILR 2019 MP 1318 that a witness cannot be recalled on the change of counsel. It was observed at page 1331:
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"9. In the present case, it appears from the application filed under section 311, Cr.P.C., that a request for re- examination has been made solely on the ground that Senior Counsel has been engaged in place of a Junior rt Counsel, as the Junior Counsel, according to the petitioner, has not conducted the cross-examination of witnesses in an effective manner. However, in the light of the legal position, as discussed above, it is certainly not within the scope of section 311 Cr.P.C. to countenance such a prayer. No illegality or perversity has been committed by the trial Court in passing the impugned order."
9. Delhi High Court also took a similar view in Sushil Ansal v. State (NCT of Delhi), 2021 SCC OnLine Del 4388 and observed:
16. Thus, the consistent view of this Court is that a mere change of counsel would not suffice to recall the witness to put certain suggestions in the manner the new counsel desires. The petitioner had engaged earlier counsel of his choice. He made a decision not to cross-examine, not one but 18 witnesses, probably, because the petitioner is facing a charge of conspiracy only, and hence such a decision, viz, not to cross-examine 18 witnesses, cannot be said to be an inadvertent act but may be a part of his strategy. Since a considerable delay has taken place, the ::: Downloaded on - 23/02/2026 20:31:04 :::CIS 6 2026:HHC:3582 plight of the victim can also not be ignored. 12. Karnataka High Court also held in Steel Rocks Inc. v. Bangalore Elevated Tollway (P) Ltd., 2024 SCC OnLine Kar 27021 .
that a change of counsel does not entitle a party to recall a witness. It was observed: "12. On a coalescence of the law elucidated by the Apex Court, what would unmistakably emerge is that it is not a matter of course that an application under Section 311 of the Cr. P.C. should be permitted. Mere change of counsel cannot be a ground to recall the witness. The application must contain details as of to why the witness is required to be recalled. Recalling of witnesses should not be permitted at the fag end of the trial. These are the broad principles laid down by the Apex Courtrt in the aforesaid judgments. Therefore, consideration of the application under Section 311 of the Cr. P.C. can be only on a case to case basis, depending upon the failure of justice that would emerge, if the witness is not recalled. I fail to see any of the postulates enunciated by the Apex Court being present in the case at hand. It is not the case that PW-1 was not cross-
examined or further cross-examined. It has been done extensively. It is not the case that the application was filed at an earlier point in time. When the case was posted for its judgment, the subject application was filed by the petitioners. The reason projected by the learned counsel for petitioners before this Court is that the earlier counsel had fumbled, and the change of counsel has led to the filing of the application. The Apex Court has held that a change of counsel will not be a ground to allow the application under Section 311 of the Cr. P.C."
10. Thus, the reason assigned during the hearing for recalling the witnesses and producing the document is not legally sustainable.
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11. The jurisdiction vested with this Court under Section 528 of BNSS is extraordinary and is to be exercised sparingly.
.
The present case does not make out any justification for exercising the jurisdiction vested in the Court under Section 528 of the Cr.P.C. Consequently, the present petition fails and it is dismissed.
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12. The observation made herein before shall remain rt confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 23rd February, 2026.
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