Supreme Court on Recall of Child Witness under Section 311 CrPC: Belated Examination Not Justified.

The Supreme Court set aside the Gujarat High Court’s order permitting the prosecution to examine a minor child as a witness under Section 311 CrPC at a belated stage of trial. The Court held that in the absence of material showing the child’s presence at the time of the incident, coupled with her tender age at the relevant time, long lapse of time, and advanced stage of trial, such examination was neither essential nor justified for a just decision of the case.

• Appellant No.1 and the deceased were married in 2010; their daughter, Aashvi, was born in 2013.

• Following the suicide of the deceased on 05.11.2017, an FIR was lodged on 01.12.2017 under Sections 498A, 306, 323, 504, 506(2), 114 IPC and Sections 3 & 7 of the Dowry Prohibition Act, 1961.

• After investigation, a chargesheet was filed in February 2018 and trial commenced.

• After examination of 21 prosecution witnesses, the prosecution moved an application under Section 311 CrPC seeking to examine the minor daughter as a witness, claiming she was present in the house at the time of the incident.

• The Trial Court rejected the application, citing absence of any such disclosure in the FIR or statements and the tender age of the child.

• The High Court reversed this order and permitted examination of the child witness, leading to the present appeals.

• The FIR, investigation records, and prosecution evidence did not establish that the child was present at the time of the incident or was an eyewitness.

• At the time of the incident, the child was about 4 years and 9 months old, and more than seven years had elapsed since then, rendering her memory vulnerable to distortion.

• The child had been residing with her maternal grandparents since the incident, giving rise to a reasonable apprehension of tutoring.

• The application under Section 311 CrPC was filed at an advanced stage of trial, after examination of 21 witnesses.

• Though Section 311 confers wide powers, it must be exercised sparingly and only when the evidence sought is indispensable for a just decision, which was not the case here.

• Permitting examination of the child witness at this stage would prejudice the accused and unnecessarily prolong the trial.

• The Supreme Court held that the High Court erred in interfering with the Trial Court’s order.

• The impugned judgment of the Gujarat High Court dated 27.11.2024 was set aside.

• The Trial Court’s order dated 30.03.2024 rejecting the application under Section 311 CrPC was restored.

• The Trial Court was directed to proceed with the trial in accordance with law.

• Section 311, Code of Criminal Procedure, 1973 – Power of court to summon or recall witnesses.

• Section 118, Indian Evidence Act, 1872 – Competency of witnesses.

• Sections 498A, 306, 323, 504, 506(2), 114, Indian Penal Code, 1860.

• Sections 3 & 7, Dowry Prohibition Act, 1961.

Citation: 2025 INSC 1475

Case: Mayankkumar Natwarlal v. State of Gujarat & Anr.

Court: Supreme Court of India

Date of Decision: 19 December 2025

Criminal Appeal Nos.: arising out of SLP (Crl.) Nos. 1167–1168 of 2025