Legal Provisions of Section 311 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Power to summon material witness, or examine person present:
The section confers wide discretionary power on Courts to summon any person as a witness or to examine any person who is present though not summoned or recall and reexamine any person already examined, when it thinks it expedient to do so in the interest of justice.
ADVERTISEMENTS:
The Judge or the Magistrate may resort to either of the three actions as stated above, not only in the interest of the accused only, but also for the benefit of the prosecution as well. The power is exercisable at any stage of inquiry, trial or other proceeding under the Code.
The High Court of Punjab in Dalip Singh v. State of Punjab held that an order passed under Section 311, Cr. P.C. is of an interlocutory nature and therefore no application of any kind can be made against such an order.
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When it appears to the Court that evidence of a particular person as witness is essential to the just decision of the case, it is obligatory on its part to exercise its power under this section and summon, examine, recall or re-examine the said witness either suo motu or at the behest of the accused for even the prosecution.
ADVERTISEMENTS:
The Supreme Court in Union Territory of Dadra and Haveli v. Fateh Singh Mohan Singh Chauhan held that summoning a witness after defence evidence had been recorded could not be dubbed as filling in a lacuna in prosecution case, unless serious prejudice was shown to have been caused to the accused.
Section 311 empowers the Court to summon a material witness to appear before the Court for recording his evidence even after the defence evidence has been completed, if it is not adversely affecting the defence (accused).
The Supreme Court in Raghu Nandan v. State of U.P. observed that where the prosecution as also the defence omitted the examination of the medical doctor at the trial, the important questions emerging from a reading of the postmortem report as to the alleged time of murder etc. remained unanswered and the Court also failed to consider their importance. Therefore, the High Court itself should have taken further medical evidence of the doctor under Section 311 of the Code.
Where the trial Court did not examine the Investigating Officer in a case under Section 307, IPC, causing prejudice to the accused, the High Court of Orissa remanded the case back to the trial Court for examining the Investigating Officer and deciding the case afresh.
ADVERTISEMENTS:
The Apex Court has expressed a view that the Court has the inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from that he had given earlier at the trial.
The Calcutta High Court in Niranjan Ghosh v. Ananda Mandal, held that where the prosecution failed to examine its witnesses in spite of several opportunities, while the case remained pending for seven years, permission for examining further unimportant witnesses may be refused.
In Tripurari Mohan Prasad v. Union of India, the Inquiry Officer of the case had been examined and cross-examined. Merely because one or the other officer was posted as Director or Joint Director of C.B.I, during the investigation of this Fodder Scam case, it could not be said that their evidence was relevant for the purpose of present case.
Also, no cogent ground had been brought on record to justify interference in the lower Court’s order refusing to summon certain persons as witnesses. Therefore, the order of the lower Court refusing issuance of summons to witnesses was proper and valid.
The High Court of Jharkhand in Kali Vishwakarma v. State upheld the order of the trial Court rejecting application for recalling witnesses for further cross-examination. A compromise petition was filed by the parties for the offence of rape and attempt to murder. But the alleged offences were not compoundable.
None of the witnesses had stated that he had given incorrect statement before the Court. The compromise reached between the parties was not in the interest of the society. By recalling witnesses the defence wanted to fill up the locuna and demolish the prosecution case by further cross-examining the witnesses on points on which detailed cross-examination had already been made. The High Court therefore, refused to interfere with the order of the trial Court.
Particularly, in cases of circumstantial evidence, it is the duty of the Court to take initiative to summon and examine material witnesses in order to bring the relevant circumstances on record. The Court must exercise its discretionary power conferred to it by Section 311 of the Code while dealing with such cases.
The Supreme Court in Shailendra Kumar v. State of Bihar held that the presence of Investigating Officer at the time of trial is a must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants, as the case may be.
It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch. In this murder case, the Court and the Asstt. Public Prosecutor proceeded with the trial without informing the police station Officer-in-charge and disposed of the case as if the prosecution had not led any evidence.
It appeared from the manner the case was preceded that the accused wanted to frustrate the prosecution by unjustified means and by one way or the other, the Additional Sessions Judge as well as APP had not taken any interest in discharge of their duties.
It was the duty of the Court to issue summons to the Investigating Officer under Section 311 if he failed to remain present at the time of trial of the case. The Apex Court held that closure of prosecution evidence without informing the Investigating Officer was not proper and remanded the case back for retrial.
The High Court of Bombay in a case held that where an application for recalling witnesses intended to bring out some contradictions in prosecution witnesses on the ground that earlier advocate failed to do so which had caused prejudice to accused was not permissible under Section 311 of the Code. The Court held that application for recalling witnesses for further cross-examination in the instant case was not bona fide hence its rejection was proper.
In Iddar and others v. Aabida and another the Supreme Court clarified that the power of the Court to summon material witness is not only for favour of accused, but the witnesses favouring prosecution case can also be summoned and examined even if it amounts to filling of loopholes in the prosecution case.
The Apex Court further pointed out that the phraseology of the section shows that it is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a Criminal Court and enables at any stage of enquiry, trial or proceeding under the Code of Criminal Procedure to (a) summon any witness (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has been recorded earlier.
On the other hand, second part is mandatory and compels the Court to take any of the aforesaid steps if new evidence appears to it essential for reaching a just decision in the case. Thus the provision contained in Section 311 is of a supplementary nature and aims at ensuring that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statements of witnesses examined from either side.
The section is limited to the benefit of the accused but may also be used in support of prosecution case. It applies to all proceedings, enquiries and trials under the Code at any stage. It is for this reason that this discretionary power has to be used judiciously by the Courts.
The Supreme Court in Hanuman Ram v. State of Rajasthan, has further clarified that the provision of Section 311 is not limited only for the benefit of the accused. The determinative factor for the exercise of power under Section 311 is whether it is summoning of a witness or his/her examination is essential for reaching a just decision.
In the instant case, the witness was examined and re-examined by the Magistrate. The opposite party filed an application before the Magistrate to re-summon the said witness for cross-examination with reference to his statement before the Children’s Court which was not allowed by the Court on the ground that no injustice was likely to be caused without such cross-examination.
[311-A. Power of Magistrate to order person to give specimen signatures or handwriting:
If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under the Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.]