Powers and Restrictions under sections 309 and 311 of Cr.P.C
Introductory:- Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require. Section 311 of Cr.P.C enables and in certain circumstances, imposes on the Court the duty of summoning witnesses who would not otherwise be brought before the court. The object of this provision is enable the court to arrive at the truth or otherwise of the fact under investigation, by summoning and examining the witnesses who can give relevant evidence, irrespective of the fact whether a particular party has summoned them or not. Magistrate has full power to direct that a medical examination of the accused be performed where circumstances are such that these are reasonable grounds for believing that such an examination will afford evidence as to the commission of an offence. See. AIR 1960 MP 394, (1989) 1 Orissa LR 74A. The power under Section 165 of Indian Evidence Act is complementary to Court’s power under Section 311 of Cr.P.C. Section 311 of Cr.P.C corresponds to Sec.540 of the Code of 1898. In the new Code of 1973 as has been passed by the Parliament and as assented to by the President, there is a little change in the wordings of the section. The words ” to be” have been added after the words ”appears to it” and the words ”essential to”. Despite this little change has not brought out any significant change in the principle of law applicable to this section, but it adds to emphasise that the evidence of witness sought to be examined under this section must be essential to the just decision of the case.
After Magistrate has taken cognizance of an offence his powers of postponement and adjournment are regulated by sectiob 309 of Cr.P.C. See. Bholanath Das And Ors. vs Emperor – AIR 1924 Cal 614, 83 Ind Cas 628 , Also see. AIR 1966 Madras 349. The object of section 309 of Cr.P.C is that to discourgae unnecessary adjournments, this provision is made. The policy of law is that criminal case should be disposed of with the least possible delay. See. Janikamma v. Appanna – AIR 1957 AP 771. It is the cardinal principle of criminal jurisprudence that the criminal prosecution should be disposed of without any avidable delay and as expeditiously as possible. The object is to avoid loss of evidence by passage of time and unnecessary harassament to the accused.
Section 309. Power to postpone or adjourn proceedings
(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under Section 376, Section 376A, Section 376B, Section 376C or Section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
Provided also that no adjournment shall be granted for the purpose only for enabling the accused person to show cause against the sentence proposed to be imposed on him.
Provided also that (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1: If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2: The terms on which an adjournment or postponement may be a granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
Powers and restrictions under section 309 of Cr.P.C:-
While permitting or refusing transfer of undertrials, power exercisable is ‘Judicial’ but not ‘Ministerial’ – Such transfer may adversely affect right of undertrial to defend himself, besides, isolating him from the society of his friends and relations (Vide Sunil Batra v. Delhi Administration: AIR 1980 SC 1579). It is, therefore, obligatory for courts to apply its mind fairly and objectively to circumstances in which transfer is prayed for having regard to objections which prisoner may have to offer – Order so passed can be nothing but a judicial order or at least a quasi judicial one.- State of Maharashtra and others etc.etc. Vs Saeed Sohail Sheikh etc. etc. – 2013 (2) ALT(CRI.)(SC) 30 ( D.B. ) .
Tactics of filibuster, if adopted by Advocate, amounts to professional misconduct:-
Once examination in Chief over, trial court not to adjourn matter, except for compelling reasons – (vide Section 309 Cr.P.C.). Witnesses when are in attendance, practice of adjourning deprecated. Trial Court to realize witness a responsible citizen, has some other work to eak out livelihood. Witnesses cannot be asked to come again and again, just to suit convenience of Advocate. Such adjournments, with no good reason, would be viewed as dereliction of duty on the part of Advocate, since tantamounts to harassment and hardship to witness. Tactics of filibuster, if adopted by Advocate, amounts to professional misconduct (vide Shambhu Nath Singh (2001 (2) ALT (Crl.) 88 (SC)) and Dastane ((2001) 6 SCC 135).
Procedure not ensuring reasonably quick trial would fall foul of Article 21 :-
In Mohan Lal‘s case, it was observed: Herein, P.W. 1 the victim girl of rape was made to attend trial court on five different dates to record her statement during a span of two years, thereby defence was enabled to win over mother of victim – Besides, manner in which trial was conducted is shocking, when viewed in background of Section 309(1) and its proviso – Was duty of trial court not to adjourn proceedings for such a long period giving opportunity to defence to persuade or force, by any means, the victim girl and her mother to turn hostile – Pending trial, father of victim girl died – Protective shield of their family withered away – Victim and her mother under immense pressure from appellants – Victim girl (P.W.1) resiled on last date of her cross-examination while her mother (P.W. 2) turned hostile – It is delayed trial that gave rise to manoeuvre and mischief by appellants.(Paras 10, 11, 12, 13 14 and 15) Mohan Lal and another Vs State of Punjab – 2013 (12) SCC 519.
In Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334, this court held that when a witness is available and his examination- in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking. While deciding the said case, the court placed great emphasis on the provisions of Section 309 Cr.P.C. and placed reliance on the earlier judgment in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667; and N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135. In the said case, this court has deprecated the practice of the courts adjourning the cases without examination of witnesses when they are in attendance. The trial court should realize that witness is a responsible citizen who has some other work to attend for eking out a livelihood, and a witness cannot be told to come again and again just to suit the convenience of the advocate concerned. Seeking adjournments for postponing the examination of witnesses without any reason, amounts to dereliction of duty on the part of the advocate as it tantamounts to harassment and hardship to the witnesses. Tactics of filibuster, if adopted by an advocate is also a professional misconduct.
No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. (Vide: Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597; Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr., AIR 1992 SC 1701; Vakil Prasad Singh v. State of Bihar, AIR 2009 SC 1822; and Shri Sudarshanacharaya v. Shri Purushottamacharya & Anr. (2012) 9 SCC 241). See. Mohan Lal & Anr vs State Of Punjab.
Inconvenience of an advocate is not a ‘special reason’ for bypassing the mandate of Section 309 of the Code:- Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Legislature has frowned at granting adjournments on that ground. Inconvenience of an advocate is not a ‘special reason’ for bypassing the mandate of Section 309 of the Code. If any Court finds that the day to day examination of witnesses mandated by the Legislature cannot be complied with due to the non- co-operation of accused or his Counsel the Court can adopt any of the measures indicated in sub-section (2) of Section 302, i.e., remanding the accused to custody or imposing cost on the party which wants the adjournments . When the accused is absent and the witness is present for examination, the Court can cancel his bail, if he is on bail unless an application is made seeking permission for his Counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case. The Hon’ble Apex Court held that ”High Court can monitor, supervise and give directions, on the administration side, regarding measures to conform to the legislative insistence contained in Section 309 of the Code”. See. State of U.P. Vs Shambhu Nath Singh and others – 2001 (4) SCC 667.
In Bal Mukund Jaiswal’s case, the Hon’ble Full Bench considered sections 209 and 309 of Cr.P.C. Observed that detenu remanded to judicial custody by an order of Magistrate. If original order of detention is vitiated, a subsequent order of detention which is valid takes away the invalidity of the previous order – In such situation, the detenu can be detained under the later order and he cannot be released on a Habeas Corpus Petition. – See. Bal Mukund Jaiswal Vs Superintendent District Jail, Varanasi – 1998 CriLJ 3343 (FB).
Decision in A.R. Antulay v. R.S. Nayak others (1992) 1 SCC 225 still holds the fields:-
Question whether there is justification for setting up of bars of limitation entailing termination of proceedings. In P. Ramachandra Rao Vs State of Karnataka and others – 2002 (2) ALT(CRI.)(SC) 133 ( F.B. ) , it was observed by the Hon’ble Supreme Court that decision in A.R. Antulay v. R.S. Nayak others (1992) 1 SCC 225 still holds the fields. Decisions to the contrary to be overruled “Neither advisable nor practicable” to fix any time limit for trial of offences.
No adjournment beyond next day:- Section 309 (1) of Cr.P.C is considered in Raj Deo Sharma’s case. The Hon’ble Apex Court gave certain guidelines in this judgment. Trial to be held and examination of witnesses to continue from day to day until all witnesses present are examined. No adjournment beyond next day. Period of suspension of judgment in this case can be excluded from prescribed time. His Lordship M. Srinivasan, J. observed: Court did not fix time limit for closing prosecution in certain circumstances. (See. Guidelines in the main Judgment). Judgment does not punish the prosecution, and prevent the prosecution from adducing further evidence. The Court held that ‘Problem is one of basic human rights”. ”Several prisoners languishing in Jails for years together”. ”Period exceeding in some cases the maximum sentences for the offences”. His Lordship M.B. Shah, J. gave directions. Fixing time limit would be against the provisions of Criminal Procedure Code. Judgment pronounced in the main case requires to be kept in abeyance. Observed that additional Courts to be established. See full text of the ruling in Raj Deo Sharma Vs State of Bihar – (1998) 7 SCC 507 . “The question is whether the earlier judgments of this court, principally, in Common Cause Vs. Union of India (1996 (4) SCC 33), Common Cause Vs. Union of India (1996(6) SCC 775), Raj Deo Sharma Vs. State of Bihar (1998(7) SCC 507) and Raj Deo Sharma (II) Vs. State of Bihar 1999 (7) SCC 604), would apply to prosecutions under the Prevention of Corruption Act and other economic offences.
Permission to perform a social obligation by an accused who is in 26 Criminal Cases – Not proper:
Accused Udai Bhan Singh @ Dr. Singh, an accused in 26 Criminal Cases has been permitted by Sessions Judge to attend marriage ceremonies of his sister’s daughter in police custody. State appealed there against The Hon’ble Court held that accused is involved in 26 criminal Cases and in one case he has been convicted for life imprisonment. Sessions Judge has granted such permission in the garb of Section 439 or under Section 309 Cr.P.C. to accused to give benefit to accused only to perform a social obligation which is not proper. Permission granted by Sessions Judge set aside. See. State of U.P. Vs Udai Bhan Singh @ Doctor Singh –  RD-AH16656.
When can Court direct stay of a criminal proceeding till civil dispute pending between parties is decided by civil Court ? :- On a consideration of those aspects and the principles laid down in various other decisions including the decision of the Supreme Court in M. S. Sheriff v. The State of Madras, , this Court held that stay of trial of a criminal case can be granted pending disposal of the civil suit between the parties on the same subject matter in suitable cases where facts and circumstances show the stay to be necessary to avoid any embarrassment in the conduct of the criminal proceedings. It was further stated that there is no hard and fast rule that criminal proceedings should always be stayed pending disposal of a connected civil suit. On the facts of that case this Court held that there could be no harm in adjourning the criminal proceedings giving a reasonable time to see that the proceedings in the civil Courts are over by the time trial in the Court begins. See. Madhavan Nambiar Vs Bharathan – 1995 CriLJ 2732.
But, in M/s. Radio Corner’s , the court held that No provision in Cr.P.C. providing for stay of trial of criminal case on the ground of pendency of civil suit. Complaints against petitioners under Sec. 138 of N.I. Act pending in the Criminal Court. Suit filed by petitioners in the civil court of Howrah for recovery of amounts due under the cheques and for permanent injunction restraining the first respondent (Complainant in the criminal case) from encashing the cheques . Petition in the criminal court to adjourn proceedings till disposal of civil suit (Sec. 309 Cr.P.C.). The petition was dismissed by trial court. It was challenged. After considering case law, it was held that ”No provision in Cr.P.C. providing for stay of trial of criminal case on the ground of pendency of civil suit. No reason to interfere with order of lower court. Revisions dismissed. M/s. Radio Corner (Bally and others) Vs Allwyn – Unit of Voltas Ltd., and another – 2003 CriLJ 3319 . Section 309 Cr.P.C. indicates the pace at which the trial of the proceedings before the Criminal Courts has to take place. Under Sub-section (1), the examination of witnesses has to be undertaken on day-to-day basis once it commences. The Courts are required to record reason for granting any adjournment beyond the following day. Adjournments before the commencement of trial also are not a matter of course. Even where such adjournments are granted, the same are to be subject to such terms as the Trial Court may impose. The purport of Section 309 is that expeditious trials is the Rule and adjournments are an exception.
In M/s. Sabura Textiles, Thanjavur Vs V.S. Krishnamoorthy – 2002 112 CompCas 302 Mad, 2001 CriLJ 1344, while considering section 309 of the Code of Criminal Procedure, 1973, it was held that stay of trial of criminal case would defeat the purpose of speedy trial violative of Art. 21 of the Constitution.
Whether accused can ask the court to defer cross examination of witness?
Discretion of Judge to permit cross-examination of a witness to be deferred until other witnesses are examined. Accused has no right to ask for such deferring. It was further held that no prejudice to accused. Impugned order of trial court not illegal. See. Lalu Alam Vs State of West Bengal – (2002) 2 CALLT 540 HC = 2002 (3) CHN 301 .
Advocate seeking adjournment can be asked to cross examine: In Thampi’s case, Section 309, Explanation 2 is considered. In this case, it was observed that the order of Sessions Judge directing Advocate of accused to deposit an amount of Rupees one thousand for adjourning a Sessions trial at his instance to be paid to witnesses present as day costs is not legal. Power of Court to adjourn proceedings ‘on such terms as it thinks fit’ does not include power to direct Counsel to pay costs. The Court held that ”Counsel cannot be identified or equated with that of a party” Counsel is an officer of Court”. When witnesses are present, adjournment shall not be granted without examining them except for special reasons to be recorded in writing. Engagement of Counsel in another case not a special reason for adjourning the trial when witnesses are present. Advocate seeking adjournment can be asked to cross examine witnesses. If he is unwilling, accused can be asked to cross-examine. If both of them do not avail opportunity without adequate reasons, Court can record ‘no cross’ and proceed with case. See. Thampi Vs State of Kerala.
Provisions of Section 167 and Section 309 are independent of each other:-
Provisions of Section 167 cease to be applicable once change-sheet is filed within prescribed period. Accused cannot thereafter be released on bail by default – Bail can be asked for only on merits under Sec.437 of the Code. Adjournment of case after receipt of charge-sheet without taking cognizance to a date beyond 90 days cannot be construed as non-application of judicial mind. Accused cannot seek bail on the ground of default. In this case, it was held that provisions of Section167 and Section 309 are independent of each other. Biju Varghese and others Vs State of Maharashta , Crl Application 3732 Of 1992, decided On,16 February 1993.
Powers and restrictions under section 311 of Cr.P.C:- Before considering the powers and restrictions under section 311 of the Code, it is seminal to see the language of the provision.
Section: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 re-examine any such person if his evidence appears to it to be essential to the just decision of the case.This section corresponds to Section 540 of the old Code.
Section 311 of Cr.P.C consists of two parts:
One giving a discretion power to the Court and the other imposing an obligation on it.
The first part of section 311 of Cr.P.C gives the discretionary power under which the Court may –
- 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. See. Jamatraj Kewalji Govani vs The State Of Maharashtra – 1967 SCR (3) 415 = AIR 1968 SC 178.
Second part of the section imposes an obligation on the Court to summon and examine or re-call and re-examine any such person if his evidence appears to be essential to the just decision of the case. See. Jamatraj Kewalji Govani vs The State Of Maharashtra – 1967 SCR (3) 415 = AIR 1968 SC 178; AIR 1958 All 439; 42 Cri L J 404 (DB). Power to summon any person as witness or to recall or re-examine him can be exercised at any stage of proceedings provided examination is essential for just decision of the case. Opportunity, however, should be given to other party whenever new evidence is admitted. See. Mohanlal Shamji Soni vs Union Of India And Another –1991 (1) SCALE 401, Equivalent citations: AIR 1991 SC 1346, 1991 CriLJ 1521, 1991 (1) Crimes 818 SC, 1991 (33) ECC 18, 1992 (61) ELT 521 SC, (1991) 2 GLR 974, JT 1991 (3) SC 17, 1991 Supp (1) SCC 271, 1991 1 SCR 712, 1991 (2) UJ 43 SC.
Recall of witness:- Criminal Court empowered to summon any person as witness though not cited as witness or recall and re-examine any person already examined – Trial Court, on re-trial, ordered by appellate court got power to recall witness. See. Mohd. Hussain @ Julfikar Ali Vs State (Govt. of NCT) Delhi – 2012 Cr.L.R. (SC) 147.
It is not a case where stricto sensu, provision of Section 311 Cr.P.C. could have been invoked – Application purported to have been filed under Section 311 Cr.P.C. by P.W. 1, stating that five accused persons named therein were innocent, rejected by trial judge. Revision there against also rejected by High Court. Filing of such an application nine months after P.W. 1’s deposition is itself pointer to the fact that he had been won over. Said application was rightly dismissed. See. Umar Mohammad and others Vs State of Rajasthan – Appeal (crl.) 382-386 of 2004, Dated 12/12/2007. Citation. 2008 Crl L J 816.
EVIDENCE ACT, 1872, Section 3 – Criminal Procedure Code, 1973, Section 311 – Indian Penal Code, 1860, Section 302 – Murder – Appeal by State against acquittal – Appreciation of evidence – A case of failure of Justice in which criminal justice is taken very lightly by all concerned – Accused alleged to have committed murder of his uncle by giving a blow on his head with iron bar when deceased was sleeping on a cot in his house – Prosecution witnesses, who were eye-witnesses and family members of deceased and related to both accused and deceased turned hostile – Acquittal of accused by trial court – Prime and pious duty of trial court to appreciate evidence for search of truth is abandoned – In hurry of disposal of case or by perfunctory and disregarding attitude the evidence of Forensic Science Laboratory and important evidence of Investigating Officer, hurriedly dispensed with, for no reasons at all on record – Neither Trial Judge nor APP endeavoured to find out truth by probing further the case – Role attributed to APP has been eschewed in hurry of disposal of the trial, resulting in failure of justice – Cardinal principle of evidence that even if a major portion of evidence is found to be deficient in case residue is sufficient to prove guilt of an accused, conviction can be maintained. Case remanded to Trial Court for re-trial with due adherence to the cardinal principle of criminal justice system. State of Gujarat Vs Patel Ashwinkumar Ranchodbhai , Case No.1311/2006, dated 15-05-008.
A case of failure of Justice in which criminal justice is taken very lightly by all concerned. Accused alleged to have committed murder of his uncle by giving a blow on his head with iron bar when deceased was sleeping on a cot in his house. Prosecution witnesses, who were eye-witnesses and family members of deceased and related to both accused and deceased turned hostile – Acquittal of accused by trial court. Prime and pious duty of trial court to appreciate evidence for search of truth is abandoned. In hurry of disposal of case or by perfunctory and disregarding attitude the evidence of Forensic Science Laboratory and important evidence of Investigating Officer, hurriedly dispensed with, for no reasons at all on record. Neither Trial Judge nor APP endeavoured to find out truth by probing further the case. Role attributed to APP has been eschewed in hurry of disposal of the trial, resulting in failure of justice. Cardinal principle of evidence that even if a major portion of evidence is found to be deficient in case residue is sufficient to prove guilt of an accused, conviction can be maintained. Case remanded to Trial Court for re-trial with due adherence to the cardinal principle of criminal justice system. State of Gujarat Vs Patel Ashwinkumar Ranchodbhai.
Role of courts in a trial – Courts have to take a participatory role in a trial – Section 311 Cr.P.C. and Section 165 of the Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence collecting process – Even if the prosecutor is remiss in some ways, it can control proceedings effectively so that ultimate objective i.e., truth is arrived at – Prosecutor not acting fairly and acting more like a counsel for defence is a liability to the fair judicial system. Himanshu Singh Sabharwal Vs State of M.P. and others – 2008 (3) ALT(CRI.)(SC) 183 ( D.B. )
Power of Court u/s 165 of the Act is complementary to its power u/s 311 Cr.P.C. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Power is exercised and evidence examined with an object of getting the evidence in aid of a just decision and to uphold the truth – While appreciating the fair stand of the State, Court, without examining the correctness of allegations made, directed the case in question to be transferred, with directions. Himanshu Singh Sabharwal V. State of Mandhya Pradesh and others, AIR 2008 SC 1943.
Recalling of witness for further examination:- Satisfaction of trial Judge on a perusal of the evidence of that witness that such recall and re-examination is essential for just decision of the case, is a jurisdictional pre-condition before ordering recall. Udaya Gowri Vs A.P. Rao, Criminal Petition No. 937 of 1991, decided on 22 July 1991.
Recall of witness :- Section 311 r/w 91 Cr.P.C are considered in this case. P.Ws. 2 and 3 recalled and further cross-examined. They resiled from their earlier statement made before court. Witnesses cannot be recalled, unless there are compelling or substantial reasons furnished by accused. Such type of practice should be deprecated. Court would not allow a petition to recall unless reasons are recorded. After a long time P.Ws. 2 and 3 were recalled and further cross-examined and they resiled from the earlier statement before court. When a witness is present and examined in chief, he should be cross-examined on same day unless recording substantial reasons for adjourning the case. Witnesses turned hostile. Simply because they were declared hostile, that does not mean that their entire evidence has to be wiped out from the record, but such part of their testimony, which inspires confidence can be taken into consideration for corroborating other evidence on record. Absolutely no corroborative evidence on record showing that the accused was present in the house on the fateful day of incident. State of A.P. rep. Public Prosecutor, High Court of A.P. Hyderabad Vs Ramancha Laxma Reddy, legalcrystal.com/905650 , Crl.A.No.435 of 2007 & Crl.R.C.No.155 of 2004 , Aug-17-2010 .
Recalling of witness or re-examining:- When such power can be invoked is considered in this case. Recalling or re-examing should be “essential to a just decision of the case“. Discretion of Court to be exercised on sound judicial principles. Instant case of matricide. Accused charged under Section 302, IPC for causing death of his mother. Deceased engaged in making illicit arrack etc. Accused admonished her for the same. Accused dealt blows and killed her. In the instant case P.W.2 was re-examined to undermine the prosecution case. No notice to be taken of what she said after re-examination. Appeal is dismissed. Johnson Vs State of Kerala.
Object of Section 311 of Cr.P.C:- To avoid failure of justice on account of any mistake on the part of the parties, in bringing valuable evidence on record – Whether new ev; ience is necessary depends upon the facts of the case – Witness summoned by Court not a witness of any party- Right of cross-examination to be given. (Paras 26 to 29) FAIR TRIAL:- Principle of fair trial informs and energizes many areas of law (Paras 32 and 33)- Due administration of justice. Upholding the “Majesty of the law” – Human rights to be protected. Fair trial. Fair to all concerned. Denial of fair trial results in injustice to the accused as to the victim and the society. Role of the State:- State has to protect witnesses against muscle and money power. Duty of the State to protect life and liberty of the citizen. No undue anxiety only to protect the interest of the accused – Public interest as much important as that of the individual-accused (Para 41). Directions given – Zahira sentenced to imprisonment and fine. Her assets and Bank-Accounts attached – Income Tax authorities to probe her assets and expenses if so advised – Applications disposed of accordingly. Zahira Habibullah Sheikh and another Vs State of Gujarat and others.
Witness who deposed earlier, wants to give evidence:-
Witness who deposed earlier, wants to give evidence, which is materially different – If the witness, who deposed one way earlier, comes to court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer as to whether the party concerned had a fair opportunity to speak the truth earlier and, in an appropriate case, accept it – It is not that the power is to be exercised in a routine or cavalier manner. Anil Sharma and others Vs State of Jharkhand – 2004 (5) ALT(D.N.)(SC) 25.5 ( D.B. ) .
Trial courts have substantial powers under Secs. 311 and 391 of Cr.P.C.:-
FIR ignites criminal investigation – Police investigation starts with registration of FIR, while, enquiry by CBI proceeds, leading to registration of FIR followed by regular investigation – Order of Magistrate under Sec. 156(3) to police is pre-emptory reminder to exercise their plenary power of investigation, leading to report under Sec. 173, whereafter Magistrate may or may not take cognizance of offence. Magistrate may take cognizance directly also under Sec. 200 Cr.P.C. Under Sec.173(8), Court enjoys jurisdiction to direct further investigation even after filing of report under Sec. 173(2) or of charge-sheet – Such power is beyond the inhibitions, including hearing of accused – Though does not possess inherent powers under Sec. 482 Cr.P.C., or under Article 136 of the Constitution, trial courts have substantial powers under Secs. 311 and 391 of Cr.P.C., to alter the charge, to direct further investigation and to direct registration of FIR. Cr.P.C., leaves clear scope for filing supplementary charge-sheet after conducting further investigation/inquiry – Permissible for investigating agency to investigate further even though charge-sheet filed already. Even on a complaint case, as distinct from a case based upon police report, Magistrate can u/s 202 refer complaint to police for investigation, deferring hearing of complaint. Section 210 is another significant provision to exercise powers, where investigation pending on same subject matter by police – Magistrate stays proceedings awaiting report of investigating agency – Where investigating agency submitted charge-sheet, but failed to bring all culprits to book, Court empowered u/s 319 to proceed against such omitted culprits also. Samaj Parivartan Samudaya and others Vs State of Karnataka and others.
Power of the Court herein has not been curtailed:- Delay caused due to absence of Presiding Officer can be excluded from time limit fixed -If tenure of PP Expires he can continue until successor is app _anted. Raj Deo Sharma Petitioner/Appellant Vs State of Bihar Respondent.
Summoning of witness :- Power of court to summon or recall a witness – Determinative factor. Essential to the just decision of the case – 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 decision. Steps taken by trial court for summoning of court witnesses cannot therefore be spurned down nor frowned upon. Plea that such invocation of power u/s 311 Cr.P.C. to summon remaining witnesses at the time of preparation of judgment may result in filling up of lacuna or loopholes, not accepted. Nira alias Niranjan Jena and another Vs State of Orissa
Examination of new witness at the stage of pre-charge evidence :- Examination of new witness at the stage of pre-charge evidence. When a case reaches the stage of pre-charge evidence u/s 244(1) Cr.P.C., the obligation of the Magistrate is to take all such evidence as may be produced in support of the prosecution. Section 244(2) Cr.P.C. authorizes the Magistrate to issue summons to any witness, on the application of prosecution either to give evidence or to produce any document or thing. Therefore, no warrant for assumption that u/s 244(1) Cr.P.C. Magistrate can take the evidence of only those witnesses whose names figure in the witness list filed earlier, presumably along with complaint – Section 204(2) Cr.P.C. cannot be so construed as to fetter the power of the Magistrate to issue summons to a new witness u/s 244(2) Cr.P.C. Section 311 Cr.P.C., gives ample power to Magistrate to summon and examine any person, for arriving at a just decision in the case. View taken by Magistrate while dismissing the petition u/s 311 Cr.P.C. is erroneous. Cr.R.P. allowed. Dr. Chaithanya R.Menon Vs State of Kerala and others.
Reopening of evidence after long trial of six years:- Recalling of a prosecution witness for marking some documents after prosecution evidence was closed and when recording of statements of accused was almost completed. Not permissible. M/s. Mangalore Satish Beedi Works, Bantwal, South Kanara and others Vs State of Karnataka.
Powers u/s 311 Cr.P.C., discretionary:- Accused cannot compel court to exercise discretion at any particular stage of trial – Power has to be exercised judiciously. Normally power to recall a witness should be exercised either on same day or within reasonable time under exceptional circumstances – Courts should be careful while exercising powers u/s 311 Cr.P.C.. For limited purpose of asking only specific questions a witness may be recalled. Therefore power to recall a witness cannot be lightly exercised – Since P.W. 1 was cross-examined in 2007, there is no justification in recalling said witness after a period of two years that too at appellate stage. No merits in revision. Accordingly dismissed. Ch. Ramakoteshwara Rao and others Vs State of A.P. rep. by Public Prosecutor.
Recalling of witness to file a document:- Recalling witness to fill up gaps in the prosecution case not to be permitted. See. Samanth Vs M/s. Vipanchi Chit Fund Ltd., Hyderabad and another.
Examination of additional witnesses instead of list witnesses :- Legal heirs of deceased witnesses – Two deceased list witnesses died during pendency of proceedings – Not a ground to examine the heirs. Previous statements not recorded by investigating agency as there was no opportunity to examine them. Heirs not relevant witnesses. No illegality or material irregularity in the order of the court below in refusing to consider the request of the prosecution. Order of the lower court upheld. See. Laveti Kamala Vs State of A.P., rep. by P.S. Alwal and others.
Service of summons on witnesses to be examined on behalf of the accused:-
Magistrate permitting accused to examine witnesses for the accused, but refusing to issue fresh warrants or summons to the witnesses to give evidence in the court – Denial of opportunity to the accused. Impugned order set aside. It was held that Magistrate shall take steps to secure presence of the witnesses. See. G.V. Reddy (Accd.) Vs M/s. OTS Advertising Pvt. Ltd. and another.
Offence not compoundable – It cannot be allowed indirectly:-
Petitioners-accused facing trial for offence under Sec. 307/34 IPC – Application by accused before trial court to recall witnesses for further cross-examination. No material to show on what points further cross-examination is needed. Further compounding of offence alleged. Offence not compoundable. Held that it cannot be allowed indirectly . Trial court rejected the prayer rightly. See. Kunwar Pal and others Vs State of U.P. and another .
No need to call Bank Official:-
Trial concluded for offence under Sec. 138 – At the stage of arguments application filed by accused to call and examine Bank Official for dishonour of cheque – In his statement under Sec. 313 Cr.P.C. accused admitted that he had Bank Account and issuance of cheque. No need to call Bank Official. Petition dismissed. Jitendra Mehta Vs Surendra Kothari.
Witness while giving evidence committing a mistake:- Witness while giving evidence committing a mistake. Witness can be recalled for correcting the mistake. It does not amount to filling up the lacuna in the prosecution case.See. Valsamma Vs Satheesh Kumar.
Question whether all witnesses should be examined or only some :- Duty is cast on the Magistrate to call upon the complainant to examine all the witnesses – A Impugned order of Magistrate set aside – Magistrate shall issue summonses to the three witnesses, whom the Petitioner-Complainant wants to examine and consider whether it is a fit case for committal or not. Petition allowed accordingly. Mirapa Suguna Vs State of A.P. and others.
Prosecutor filed application under Sec. 311 Cr.P.C to receive the opinion of the expert in evidence by summoning him as a witness on behalf of the prosecution – Investigating Officer obtained signatures of the accused in the presence of mediators and sent it to the expert for opinion – Expert not cited in the charge sheet as a witness for the prosecution – Not further investigation or further by mistake evidence. No need for filing further report under Section 173 (8) Cr.P.C. No merits in the Crl. Rev. Case – Dismissed. Pinninti Satyanarayana (A-6) Vs State of A.P.
Recalling for purpose of cross-examination witness already examined:- Cross-examination of the witness P.W.1 sought with reference to certain documents as per information conveyed or gathered by the accused from these documents -Application filed in the lower Court dismissed by the Sessions Court – Instant petition to revise the said order. Said documents cannot be considered as irrelevant. See. P.V. Udashi Vs J.V. Udeshi and another.
Power of the Magistrate to summon ‘any person’ at any stage during enquiry or trial or other proceeding not curtailed in the instant case – Complainant alleges that petitioners kidnapped the L.Ws. and therefore he desires to examine others, who are also eye witnesses. No abuse of the process of the court. Quashing petition misconceived – dismissed. T. Krishna Murthy and others Vs Deep Chand Agarwal and another.
Denial of opportunity of cross-examination amounts to denial of justice :- Confers wide discretion on the court to summon material witness etc. No limitation on the power of the court. Denial of opportunity of cross-examination amounts to denial of justice. Order impugned set aside. Lower Court directed to recall the witnesses not cross-examined already, after ascertaining whether petitioner and others are ready to cross-examine the witnesses. See. Syed Dastageer Vs State of A.P. – 2005 (3) ALT(CRI.) 267.
Summoning some witnesses who were not cited in the charge sheet:-
Public Prosecutor fling an application for summoning some witnesses who were not cited in the charge sheet. Court not allowing petition but considering the same at a belated stage and ordering summoned to such witnesses. Held: Not proper. See.N. Narayana Rao Vs State of A.P.
Conclusion:- It is the cardinal principle of criminal jurisprudence that the criminal prosecution should be disposed of without any avidable delay and as expeditiously as possible. The object is to avoid loss of evidence by passage of time and unnecessary harassment to the accused. If the prosecution is kept pending for an indefinite or for a very long time, importance evidence may be obliterated by mere lapse of tine with the result that the evidence would not be available at the time of trial. See. State Of Maharashtra vs Rasiklal K. Mehta And Ors -1978 Cri L J 809. The object of section 309 of Cr.P.C is to avoid hardship to the parties and witnesses. If the accused is in custody frequent adjournments will be a harassment to him and , from the point of view of the prosecution, time will efface recollection of facts. The longer the period allowed to elapse from the time of the arrest to the time the witnesses give evidence that greater is the probability of confusion and of the truth being obscured.
To say in short, Court shall summon and examine such person if his evidence appears to it to be essential to the just decision of the case. See. Pappu Govinda Lakshmi Vs Pappu Krishna and others. If his evidence appears to be essential to the just decision of the case. Neither for the benefit of the accused nor for the prosecution, but only for the Court and to decide with all the complete evidence before it – See. Bhikya Balu Vs The State of A.P. rep. by Public Prosecutor, 1997 (2) ALD 819 = 1997 (1) Andhra Law Times (Criminal) page 167. Also see. Chemo Steels Limited, vs State Of Andhra Pradesh – 2005 (1) ALD Cri 6, 2005 CriLJ 716. Prosecution cannot be permitted to examine a witness as a Court witness to rebut the defence evidence. See. Surepalli Venkateswara Rao Vs State – (1982), Ruling of His Lordship Justice Punnayya. In Jasu Alias Jaswant Singh vs State Of Rajasthan – 1995 Cri L J 1160, it was observed that accused facing trial for murder has a right to call for medical record to prove that death was not because of injuries caused by him but because of some other ailment – Dismissal of application by accused to recall Doctor with bed-head ticket and treatment chart of deceased for further cross-examination on the ground of delay – Not justified. Examination of accused u/sec. 313 of Cr.P.C is discussed in Harihar Singh Vs State of Orissa – 1997 II OLR 75 holding that It also transpires from the record that the examination of the accused persons Under Section 313, Code of Criminal Procedure, is quite laconic and insufficient.. Court has suo motu power to summon any person if his evidence appears to be essential to the just decision of the case. IN Raj Deo Sharma (II) v. State of Bihar (1990) 7 SCC 604 : (1999 Cri LJ 4541) the three Judge judgment of the Hon’ble Supreme Court held that the power of the Court as envisaged under S. 311 of the Code of Criminal Procedure has not been curtailed by the Supreme Court. Neither in the decision of the five-Judge Bench in A. R. Antulay case (1992) 1 SCC 225 : (1992 Cri LJ 2717) nor in Kartar Singh case (1994) 3 SCC 569: (1994 Cri LJ 3139) such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under S. 311, Cr. P. C. Therefore, their Lordships have made it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case, it is the duty of the Court to summon and examine or recall and re-examine any such persons. In the circumstances, the learned Sessions Judge thought it fit that the evidence of the Radiologist and X-rays are essential to the just decision of the case and therefore the learned Judge Summoned to examine the Radiologist and for filing of the X-rays. In the light of the aforesaid 3 judge latest judgment of the Hon’ble Supreme Court it cannot be held that the learned Judge as exceeded the power under the 2nd Part of S. 311 of the Code of Criminal Procedure. – See. Palacharla Rama Rao Versus State of A.P., 2002 Crl L J 4189, .