Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Present application was filed under Section 482 of the Code of Criminal Procedure was filed to quash the impugned order passed by the Additional Sessions Judge arising out of crime registered under Section 307 of the Penal Code, 1860, by which two applications filed by the applicant/accused under Section 311 of the Code have been rejected.

Analysis, Law and Discussion

High Court noted that trial Court by its order dismissed the applications for recalling the witnesses for further cross-examination and rejected the submission urged on behalf of the applicant on the ground that the defence had elaborately cross-examined.

If there is any contradiction or ambiguity in the prosecution evidence. It is a settled position of law that the accused would be entitled to benefit of the doubt.

Trial Court’s order had been assailed on two grounds:

  • After reading the evidence of PW-1 and PW-2 the identity of scribe Suresh Singh was not clear.
  • If the complaint had been written by Suresh Singh, son of Rama Shankar who died about one year before the incident, in that case, the genesis of the prosecution case would be proved false.

Section 311 is manifestly in two parts, the first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.

Further, the Court observed that, Section 311 of the Code gave wide power to the Court to summon a material witness or to examine a person present on Court or to recall a witness already examined.

The said Section confers a wide discretion on the court to act as the exigencies of justice require.

The discretion given by the first part is very wide and its very width requires a corresponding caution on the part of the court. But the second part does not allow any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge [Ram Jeet v. State of U.P., AIR 1958 All 439]

In the present matter, Bench observed that, PW-1 is not an eyewitness of the incident, the FIR had been lodged by PW-1 after about 46 hours of the incident on the basis of information received from PW-2.

The application for recalling PW-1 had been filed after about 4 years of recording the statement-in-chief of the PW1 and another application for recalling PW-5 filed after about one year of recording the examination-in-chief of PW-5.

In Court’s opinion, the trial judge gave well-founded reasons for rejecting the applications.

Hence, the impugned order passed by the trial court was affirmed and the present application under Section 311 of the Code was dismissed.[Bheem Singh v. State of U.P., 2022 SCC OnLine All 40, decided on 18-1-2022]


Advocates before the Court:

Counsel for the Applicant: Neeraj Pandey, Om Prakash Singh Sikarwar

Counsel for the OP: G.A.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while discussing the scope of Section 311 of the Criminal Procedure Code, 1973 with regard to recalling and cross-examining the witness expressed that,

It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

A petition was filed under Section 482 of the Criminal Procedure Code on behalf of the petitioner seeking setting aside the orders of the lower court whereby the opportunity of the petitioner to cross-examine the witness (PW-1) was closed and an application filed under Section 311 CrPC seeking recall of the said witness was dismissed.

Scope of Section 311 CrPC

 Supreme Court considered the scope of Section 311 CrPC in P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56.

Further, in the decision of Natasha Singh v. CBI, (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, Rajeswar Parasad Misra v. State of W.B., (1966) 1 SCR 178, Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, Supreme Court held as under:

  1. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx xxx xxx

  1. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. 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. Further, 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 a 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 conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, 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 thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

 In the instant case, petitioner had initially sought to cross-examine both the parents of the deceased on one day, however, the prosecution subsequently chose to drop the mother of the deceased from the array of the witnesses.

Petitioner had ample opportunity to cross-examine the witnesses, but he did not utilize the same.

Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also the interest of the accused.

High Court while observing the above added that, it is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

Elaborating more on its observations, Court stated that, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice.

Considering the fact that the petitioner had been charged for the offence punishable under Section 304B IPC and the witness was the father of the deceased, High Court deemed it apposite to grant one opportunity to the petitioner to cross-examine the witness, subject to a cost of Rs 5,000 to be deposited with Delhi State Legal Services Authority.

The matter was fixed before the trial court for 25-2-2022 and the investigating officer shall take appropriate steps to summon the witness and the matter shall be listed before the Trial Court on 14-2-2022.

Further, the Bench added that in case the petitioner does not cross-examine the witness on the date fixed and seeks an adjournment, his right to cross-examine shall stand closed.

In view of the above petition was disposed of.[Krishan Kumar v. State (GNCT) of Delhi, 2022 SCC OnLine Del 215, decided on 21-1-2022]


Advocates before the Court:

For the petitioner: Inderpal Kokhar, Advocate

For the respondent: Hirein Sharma, APP for State

Uttarakhand High Court
Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. entertained a criminal revision petition filed under Section 482 CrPC for quashing of the order passed by the lower Court.

The factual matrix of the case is that the victim worked as a Junior Engineer and she accused the petitioner who was a Contractor, of unnecessary calling and demanding sexual favors. The victim contended that the petitioner was continuously harassing her for many months. The victim further accused the petitioner of stalking her on social media and sending inappropriate messages. She further alleged that he used to chase her and when she strictly warned him not to indulge in these activities, then, he in connivance with some officials, got committed theft of two measurement books from her office and started blackmailing her. In this regard, he also filed one RTI application and under that pretext, he had stated that he will get everything resolved if she agrees to establish sexual relations with him. FIR was registered under Sections 354-A, 354-D, 379 and 506 IPC, 1860. After investigation, police filed a report under Section 173 CrPC and consequently, accused faced the trial. During the pendency of the trial, the victim through Public Prosecutor filed an application under Section 311 CrPC for placing on record one CD containing some vulgar remarks made by the accused. In the application, it was mentioned that such vulgar remarks had been made in the presence of one individual who was also a Government Contractor. The victim in the application contended that the CD was very material and necessary for the proper adjudication of the trial and similarly examination of the individual witness was also necessary to corroborate the allegation recorded in the CD.

Subsequently, the trial court had ordered the examination of the witness under Section 311 CrPC and also to put the electronic evidence on record about which the victim had already given reference. The petitioner challenged the order. 

The counsel for the petitioner Peeyush Verma, submitted two limbs of arguments, and the first was scope and power under Section 311 CrPC to summon such evidence at a belated stage and the second limb was that the application was simply a tactics played by the victim to drag on the prosecution and delay the outcome of the trial. On the contrary the counsel for the victim had placed reliance on Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, where it was held that, “The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.

It was observed by the Court that, powers to summon any witness can be invoked even if the evidence of both the sides were closed so long the Court retains the seasons of the criminal proceedings. Hence, the Section was not only limited for the benefit of the accused, but the Section was also a general provision which applied to all proceedings, enquiries and trials. 

To counter the arguments of the victim the counsel for the petitioner placed reliance upon Section 65 of the Evidence Act, wherein the mandatory requirement of Certificate being annexed with the electronic record was missing. The other contention was that the main allegation of the victim in the complaint was that the accused conducted theft of measurement books, whereas the police did not find any substance in her allegations and cancellation report was filed.

To repeal the above-mentioned contention, the Additional Advocate General, submitted that the aforementioned case the victim had made a false complaint, and then they can always take recourse to Section 182 of the Penal Code. He further contended that this was no ground to deny the leading of the additional evidence which related to vulgar remarks, it was also well noted that bare reading of this application under Section 311 CrPC which led to the passing of the impugned order was cryptic and did not contain the transcript of the CD. 

Court was of the opinion that there was no necessity to refer all the vulgar remarks in such kind of application because the victim had placed on record CD, which can always be played by the Court to decipher the allegations. This was not an order, but allegations of vulgar remarks by a lady and the possibility cannot be ruled out that to save her dignity, she might have restrained from reproducing the text of the audio recording. Even otherwise, in the absence of hearing the CD, no conclusion can be drawn that it did contain obscene language or not. Hence, the Court dismissed the petition as it did not find any merits. [Sham Singh v. State of Himachal Pradesh, 2019 SCC OnLine HP 1242, decided on 09-08-2019]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Bujor Barua, J. dismissed a petition against the order of the trial court whereby it had summoned the Controller of Examination of the Board of Secondary Education, Assam to produce relevant documents in order to prove the age of the prosecutrix.

The petitioner was facing trial under Sections 366, 342 and 34 IPC along with Section 4 of Protection of Children from Sexual Offences Act, 2012. As per the petitioner, the arguments had concluded and the matter was fixed for judgment on 26-04-2019. However, submitted the petitioner, that as he had taken a substantive stand that the prosecutrix was not below the age of 18 years on the date of occurrence. The Aditional Sessions Judge decided to fill up the lacuna in the prosecution case by suo moto issuing an order, whereby summons was issued to the Controller of Examination as mentioned above.

The petitioner was represented by H. Goswami, Advocate, contended that under Section 311 CrPC, the trial court can summon a material witness or examine any person only at the stage of enquiry or trial or in any other proceeding under the Code and not after termination/conclusion of the trial. The petitioner also relied upon Section 353 which inter alia provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in the open court presiding officer immediately after termination of the trial or at some subsequent time of which notice shall be given to the parties. It was contended that as per the provisions of Section 353 which provides for judgment after the termination of a trial, any order passed in a trial reserving a matter for judgment, would itself be an indication that the trial of the matter had already concluded. Accordingly, the very order posting the matter for judgment on 26-04-2019 was itself a conclusive indication that the stage of termination of the trial already had been arrived.

Rejecting such contentions, the High Court observed: “Section 353 nowhere provides that once a proceeding is fixed for judgment that by itself is an indication that it is the termination of the trial. All that it provides is that the Judgment shall be pronounced by the presiding officer after the termination of the trial. Therefore, only a pronouncement of the judgment itself can be understood to be a situation where there is a termination of the trial and merely because the matter stood fixed for a judgment to be delivered on a subsequent date by itself cannot be construed to be a termination of the trial.

It was noted that Section 311 clearly provides that any Court may at any stage of the enquiry trial or other proceedings under the Code; summon a person as a witness, or examine the person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to the Court to be essential to the just decision of the case. Resultantly, finding no infirmity in the impugned order, the Court dismissed the petition.[Deepjyoti Kalita v. State of Assam, 2019 SCC OnLine Gau 2631, decided on 04-06-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J., while putting petitioners to terms, allowed their application filed under Section 311 CrPC to recall three prosecution witnesses for cross-examination.

Earlier, the trial court had dismissed the petitioner’s application for recall of prosecution witnesses. Dinesh Sah and Rajeev Rajan, Advocates appearing for petitioners submitted that the witnesses sought to be recalled were material witnesses who could not be cross-examined due to the negligence of the previous counsel. It was submitted that petitioners may be put to terms for their negligence, however, recalling of prosecution witnesses was essential. Per contra, Izhar Ahmad, Additional Public Prosecutor supported the trial court’s order.

On perusal of the record, the High Court found that the petitioners did not exercise due diligence in defending themselves before the trial court and the blame was sought to be put on the previous counsel, whose name was not disclosed. Be that as it may, the Court was of the view that cross-examination of prosecution witnesses was necessary for a just decision of the case. Deeming it appropriate that petitioners be put to terms, the Court allowed their application filed under Section 311 while inflicting a cost of Rs 30,000 to be deposited with Prime Minister’s Relief Fund. [Ashok v. State, 2019 SCC OnLine Del 7059, dated 04-02-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mridula Bhatkar, J. allowed a writ petition directed against the order of Special Judge (CBI) whereby he allowed prosecution’s application filed under Section 293 CrPC.

The prosecution had filed an application under the said Section for exhibiting the CFSL report without examining the forensic expert. The said application was opposed by the petitioners on the ground that they were challenging the veracity of the said report as well as the competence of the forensic expert, and therefore they requested that the expert shall be called as a witness for cross-examination. The Special Judge, however, allowed the aforesaid application of the prosecution. Aggrieved thereby, the petitioners filed the instant petition.

The High Court noted that the petitioners were facing trial under Prevention of Corruption Act, 1988. The conversation relevant to the case was a disputed issue in the trial. The limited question before the Court was whether the said expert to be called as a court witness under Section 311 CrPC. The Court further noted that the trial court had exhibited the CFSL report to which the petitioners raised an objection and wanted to test the truthfulness and veracity of the exhibited document. According to the Court, in all terminology and considering the position of the law, it was necessary for the trial court to call the forensic expert as a court witness under Section 311 enabling both the parties to cross-examine the witness. In such view of the matter, the petition was allowed. [Navin Laxman Tamboli v. State of Maharashtra,2018 SCC OnLine Bom 4325, dated 31-10-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Surinder Gupta, J. dismissed an appeal filed against order of the trial court whereby the application filed by the prosecution under Section 311 CrPC was allowed.

The petitioner was facing the trial under Section 18 Narcotic Drugs and Psychotropic Substances Act, 1985.  As per the prosecution, the contraband recovered from the petitioner was initially deposited with MHC Dharam Singh and was later on handed over to HC Kulwant Singh. As such, being a material witness, MHC Dharam Singh was required to be examined to complete the link evidence in the case. The petitioner argued that the prosecution had closed its evidence. Thereafter, statement of the petitioner under Section 313 was recorded. Arguments were partly heard in which the petitioner raised an issue that the link evidence was missing in the case. It was alleged that in order to fill in the lacunae, the application under Section 313 was filed by the prosecution which was allowed by the trial court vide the order impugned.

The High Court perused the facts of the case and noted that it was apparent that the trial court found MHC Dharam Singh as a material witness. The instant was not a case where the petitioner was taken by surprise as the prosecution witness (Investigating Officer) had already disclosed that the case property (contraband recovered) was deposited with MHC Dharam Singh. It was a mere lapse that he was not examined before the conclusion of the prosecution evidence. The Court was of the view that the mere fact that application was moved after arguments had been partly heard or at the stage of defence evidence, is no reason to decline such application or curtail powers of the court to summon material witness. No error was found in the order of the trial court impugned herein. Accordingly, the revision petition was dismissed holding it to be sans merit. [Satyawan v. Vikas,2018 SCC OnLine P&H 1220, dated 01-06-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Ashwini Kumar Singh, J. dismissed an application filed under Section 482 CrPC against the order of Additional Sessions Judge whereby prosecution’s application under Section 311 CrPC was dismissed.

The applicant was the informant in a case registered under Section 302 IPC. During the trial, the Public Prosecutor filed an application under Section 311 submitting that the Investigating Officer and the doctor concerned were not examined, and their non-examination would cause prejudice to the prosecution’s case. However, such application was dismissed by the trial court. The present petition was filed against the said order.

The High Court perused all the material available on record and found that the trial court kept open the prosecution case for about three years, but the said witnesses did not turn up. The prosecution was not diligent in pursuing the trial. Therefore, the order challenged in the petition did not suffer any fault. Right to speedy trial is enshrined in Article 21 of the Constitution. This apart, the Court categorically observed that the petitioner had no locus in the matter. A private person may instruct the Public Prosecutor and may submit written arguments with the permission of the court after the evidence is closed. However, a private person, even if the informant, had no locus to pursue an application under Section 311 in the court below, or to challenge the order which may have been passed on an application filed by the prosecution under Section 311 CrPC. Accordingly, the petition was dismissed. [Sriram Singh v. State of Bihar, 2018 SCC OnLine Pat 1163, dated 06-07-2018]