Utt HC | Application under S. 311 CrPC is subjective matter for consideration, which depends upon the perception of each and every court

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition where the issue discussed was related to Section 311 CrPC, it was stated that the Section gave an exclusive power to the Court as defined under the CrPC that it may at ‘any stage’ of an inquiry, trial or other proceedings, and the Court may summon any person as a witness or examine any person in evidence though not summoned as a witness in the earlier set of proceedings.

The counsel for the petitioner challenged the order passed by the Special Judge, POCSO in another case State v. Anand Rana, where the court in trial, exercised its power under Section 311 CrPC for purpose of summoning of the witnesses. It was further alleged that, at the stage, when the proceedings were pending consideration before the court, the prosecution had moved an application, by invoking the provisions of Section 311 CrPC for summoning some of the witnesses at the stage when the trial was pending consideration before the Sessions Court, before it came to any logical conclusion with regard to the offences, which were levied against the accused revisionist.

On the contrary the respondent contended that by the application, preferred under Section 311 of CrPC gave an avenue and ample of powers to the Trial Court to exercise its domain at any stage of the proceedings, to call upon the witness, which the Court considers it to be necessary to be considered for the purposes of better elucidation of the controversy and for settling of the offences as against the present accused persons by their examination and considering their statements before drawing any logical conclusion.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.

Another argument raised by the petitioner was that to invoke an application under Section 311 there has had to be a reasonable ground which had to be expressed by the prosecution, to this the Court observed that, it was always a subjective matter for consideration, which depended upon the perception of each and every court as per the requirement of the case and, according to its own wisdom and the intellect which the Court possessed. The Court was of the view that irrespective of whatsoever the logical reasoning was assigned by the prosecution for the purposes of invoking Section 311 CrPC, the accused, who was apprehending the examination of additional witnesses for the purposes of establishment of the offence levied against him, it became inevitable for him to take a stand that the reason given in the application did not justify the invocation of the provisions contained under Section 311 CrPC.

The Court, further mentioned that it did not want to interfere in the challenge because the basic purpose and intention as per the language of Section 311 CrPC was to equip the Court with sufficient power to summon witnesses.

Lastly the argument raised by the petitioner was that the invocation of Section 311 CrPC by prosecution cannot be utilized to fill in the lacunae of the evidence which had already been adduced before the Trial Court by examination of additional witnesses by summoning them under Section 311 of the CrPC the Court to this particular contention stated that at the stage when the Court was under consideration of the application under Section 311 CrPC and considered the justification of summoning the witnesses at the stage when Court decided to summon a witness under Section 311 CrPC, it cannot be a stage where a petitioner had an argument that the prosecution intended to fill in lacunae of the trial, which was pending consideration before the Court. Hence, the revision was dismissed.[Kaushik Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 794, decided on 30-07-2019]

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