Section 311 Cr.P.C. The said provision reads as follows:-
“311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”
A quarter of a century back, a two-Judge Bench in Mohanlal Shamji Soni v. Union of India and another, 1991(3) RCR (Criminal) 182 : AIR 1991 Supreme Court 1346 has held that:-
“Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words `to be’ before the word `essential’ occurring in the old section. This section is manifestly in two parts. Whereas the word used in the first part is `may’ the word used in the second part is `shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Court and enables it `at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely,
(1) to summon any person as a witness, or
(2) to examine any person in attendance, though not summoned as a witness, or
(3) to recall and re-examine any person already examined.
8. The second part which is mandatory imposes an obligation on the court –
(1) to summon and examine, or
(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
9. The very usage of the words such as `any court’, `at any stage’, or `of any enquiry, trial or other proceedings’, `any person’ and `any such person’ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way.
However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.”
The aforesaid passages make it abundantly clear about the broad applicability of the provision and the role of the court in two distinct situations.
In the said authority the Court referred to the earlier pronouncements in Rameshwar Dayal and others v. State of Uttar Pradesh, (1978) 2 SCC 518, State of West Bengal v. Tulsidas Mundhra, (1963) 2 SCJ 204, Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 Supreme Court 178 and proceeded to opine that:-
“The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.”
It is important to note here in the said case, it was also observed that:-
“Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.
Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties”.
In Rajendra Prasad v. Narcotic Cell, 1999(3) RCR (Criminal) 440 : (1999) 6 SCC 110 occasion arose to appreciate the principles stated in Mohanlal Shamji Soni (supra). The two-Judge Bench took note of the observations made in the said case which was to the effect that while exercising the power under Section 311 of Cr.P.C., the court shall not use such power “for filling up the lacuna left by the prosecution”. Explaining the said observation Thomas, J. speaking for the Court observed:-
“Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”
After so stating the two-Judge bench referred to the exigencies of the situation and the ample power of the court as has been laid in Mohanlal Shamji Soni (supra) and further referred to the authority in Jamatraj Kewalji Govani (supra) and opined thus:-
“We cannot therefore acceptthe contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at.”
The aforesaid decision has to be appropriately understood. It reiterates the principle stated in Mohanlal Shamji Soni’s case. It has only explained the sphere of lacuna by elaborating the same which has taken place due to oversight and non-production of material evidence due to inadvertence. It is significant to note that it has also reiterated the principle that such evidence is necessary for a just decision by the Court.
In U.T. of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan, 2006(4) RCR (Criminal) 113 : (2006) 7 SCC 529, the Court was dealing with an order passed by the High court whereby it had allowed the revision and set aside the order passed by the learned trial judge who had exercised the power under Section 311 Cr.P.C. to summon certain witnesses. The Court referred to the earlier authorities and ruled that it is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court.
Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. Be it stated, in the said case the court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High court.
In Rajaram Prasad Yadav v. State of Bihar and another, 2013(3) RCR (Criminal) 726 : 2013(4) Recent Apex Judgments (R.A.J.) 354 : (2013) 14 SCC 461, the Court after referring to Section 311 Cr.P.C. and Section 138 of the Evidence Act observed that Section 311 Cr.P.C. vest widest powers in the court when it comes to the issue of summoning a witness or to recall or re-examine any witness already examined. Analysing further with regard to “trial”, “proceeding”, “person already examined”, the Court ruled that invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case.
The Court observed that the power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. The learned Judges further ruled that the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. It was also stated that while such a widest power is invested with the court, exercise of such power should be made judicially and also with extreme care and caution.
The Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 Cr.P.C.We think it seemly to reproduce some of them:-
“17.2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
x x x x x x x x x
17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.
17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
x x x x x x x x x
17.14. The power under Section 311 Cr.P.C. 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 care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”
Recently in Shiv Kumar Yadav (supra), the Court reproduced the principles culled out in Rajaram Prasad Yadav v. State of Bihar and another, 2013(3) RCR (Criminal) 726and thereafter referred to the authority in Hoffman Andreas v. Inspector of Customs Amritsar, (2000) 10 SCC 430 wherein it has been laid down that:-
“The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible”.
The Court in Shiv Kumar Yadav (supra) case explained the said authority by opining thus:-
“15. …..While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.”