By- Shrasti Singh
Section 311 of the Code of Criminal Procedure, 1973 gave power to the court to summon material witness, or examine person present. Section 311 of Cr.P.C. enables any Court at any stage of any inquiry, trial or other proceeding under the code to do one of three things,
- To summon any person as a witness
- To examine any person who is in attendance though not summoned
- To recall and re-examine any person already examined.
So far, the section is permissive. But where the evidence of any person appears too essential to the just decision of the case, it is obligatory on the court to summon and examine or re-call and re-examine him.
Scope of Section 311 Cr.P.C.
- Section 311 Cr.P.C. is a rule of procedure of trial by a court and is relating to the discretion of and duty cast upon the court. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties.
- This section does not give any right; as such; to any party to move the court for calling or recalling of a witness for examination or re-examination. However, this Section gives ample powers to the trial court that it can call any person as a witness, whether in the attendance of the court or not. The court can examine and re-examine any witness as it deems fit.
- But this section further casts a duty upon the trial court that if such evidence appears to be essential for the just decision of the case then the trial Court shall be duty bound to call such person to appear as a witness in examination or re-examination, as the case may be.
- Therefore, Section 311 Cr.P.C. is mainly relating to the discretion of the Court in one part; and duty cast upon the trial court in the second part. The common strain running through both the parts of the Section 311 Cr.P.C. is the just decision of the case and the interest of justice that would be served if any such witness is examined or re-examined by the Court.
- Section 311 Cr.P.C. are essentially intended to ensure that every necessary and
appropriate measure is taken by the court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone.
The principles underlying Section 311 Cr.P.C. and amplitude of the powers of the court thereunder have been explained in several decisions. In one of the cases of Natasha Singh vs. CBI (State): 2013(5) SCC 741, following principle were culled-
- The court must exercise this power judiciously and not capriciously or arbitrarily.
- The very use of words such as “any court”, “at any stage”, or “any inquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way.
- There is no escape if the fresh evidence to be obtained is essential to the just decision of the case.
- The determinative factor should be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
- An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party.
- The additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.
- The power of section 311 must be invoked by the court only in order to meets the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.
In case of Himanshu Singh Sabharwal VS. State of MP, AIR 2008 SC 1943, the court view that the power under section 165, Evidence Act, is complimentary to its power under section 311 Cr.P.C. The discretion to examine witnesses under section 311, though very wide, the very width requires corresponding caution.
In State (NCT of Delhi) v. Shiva Kumar Yadav, (2016) 2 SCC 402, it was held that mere change of counsel cannot be a ground to recall the witness.
In the case of Manju Devi vs. State of Rajasthan the SC held that the ages of the case, by itself cannot be decisive of the matter when the prayer is made for the examination of the material witness.
The long duration of the case cannot displace the basic requirement of ensuring the just decision.