Power to Summon Material witness or Examine person Present - CRPC 311
Date : 28 Mar, 2022
Post By Vishal Kumar
INTRODUCTION Under this section, the court has the power to summon any witness who is material to the case or examine a person already present in the court who has not been summoned as a witness. Under the section, the court can also re-examine or recall a witness who has already been examined. 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 gives wide powers to the court of summoning a witness who has already been examined first. If the court finds the evidence given by a court material, then it can recall that witness to meet the ends of justice. However, there is also a duty imposed on the court to make sure that the judgement they render, after using their powers under this section, is fair, just, and reasonable. The objective of this section is to make sure that the adjudication of a case goes properly and smoothly. It is to ensure that no aspects of the case remain untouched by the court and that is why such powers are given to the court. Good conscience of the court is always at play under this section. The court is required to exercise this power judiciously and not on their whims and fancies. Material witness or material evidence referred to in this section means any witness or evidence which is fundamental to deciding the case. Not only deciding the case but also rendering the judgment fair and just.
SOME IMPORTANT ASPECTS OF THE SECTION
- If the counsel for either the prosecution or defence is found to be incompetent or ill or has changed, the witnesses called by such counsels during their time of active advocacy cannot be recalled on the grounds state.
- Even though in our country the system of court advocacy is adversarial in nature which means that the court plays a neutral role while adjudicating a matter. But section 311, brings out the inquisitorial aspect of the court wherein the court can actively participate in the proceedings to meet the ends of justice.
1. Hanuman Ram vs. State of Rajasthan & Ors - In this case, the court said that section 311 is divided into two parts. Part 1 of this section provides discretion to the court and part 2 of this section mandates the court. Part 1 uses the word ‘may’ and gives discretion to the court to call any person to be examined who has not been summoned as a witness, to summon an important witness of the case, to re-examine a person who has already been examined and whose testimony and evidence are on record. Part 2 of the section uses the word ‘shall’ which makes it mandatory for the court to do any of the steps mentioned if any new material evidence comes on record. This is done to deliver justice and prevent any miscarriage of justice. This section has been worded to form the widest interpretation possible so that it covers all the stages of the trial and it doesn’t limit as to who can be summoned. Therefore, it is not mentioned in the section as to when exactly can a person be summoned. The court is allowed t summon a witness at any stage of the trial under this section. This section also gives power to the court to call such witnesses who have otherwise not been called by the parties. This is done so that the relevant aspects of the case don’t go unnoticed by the court. The factor which the court looks at before invoking this section is whether the evidence or summoning of a witness is essential to the adjudication of the case. If the answer to this question is positive, there is, rather, a duty imposed on the court to take such necessary steps to get a holistic view of all the facts and circumstances, and evidence before coming to its final decision.
2. Rajaram Prasad Yadav vs. State of Bihar & Anr- The court, in this case, stated that the word ‘any’ has been used as a prefix to words like inquiry, trial, other proceeding and phrases like a person as a witness, a person called for examination even though that person is not summoned as a witness, recalling a witness. By adding the word ‘any’ before all these words and phrases, the court has been bestowed with a wide discretionary power. The court needs to be only satisfied with the fact that their new evidence has surfaced and if the court is satisfied with the same, it can invoke this section and undertake any of the steps mentioned. In this case, apart from focusing on the judicious exercise of the discretionary powers of the court, the court also laid down another important point which was that if the court is satisfied that there is some additional evidence that needs to be put on record, the court must take that additional evidence into account. It does not matter if that additional evidence is important for the final adjudication of the case. The thing that matters is whether ignoring that evidence would lead to a miscarriage of justice. The court also laid down that if the parties, during the trial, did not produce certain evidence or did not examine certain witnesses properly by mistake, the court should not be too harsh and let the parties correct their mistakes at a later point during the trial. This is done to make sure that the court has not left any essential material behind while adjudicating the matter.
3. Ratanlal vs. Prahlad Jat- The court reiterated the power of discretion and the purpose behind granting such discretion in this case. The court stated that the point of this section is to do justice but that justice should not only be limited to either the prosecution or the defense. The point of this section is to also do justice from the point of society as a whole. Even if there is discretion on part of the court, this discretion is limited and has to be invoked very cautiously.
4. Manju Devi vs. The State of Rajasthan- In this case, the court stated that the power under this section cannot be invoked by a court to favour one party at the prejudice of the other. This section is not supposed to fill out the loopholes of either party and is only supposed to be invoked in cases of miscarriage of justice. The additional evidence that the court can take into consideration by invoking this section should not be considered with a view to change the course of the trial and to prejudice the other party. Additional evidence can only be taken on record if the court is satisfied that the evidence is fundamental to the adjudication of the case.
RELATION OF EVIDENCE ACT SECTION 165 WITH SECTION 311 CrPC
Section 165 of the Evidence Act confers power on the judge to ask any questions to any witnesses as long as the questions are based on the facts of the case. It does not matter whether the questions asked are material or immaterial. As long as the questions are based on the facts and the circumstances of the case and as long as the judgement of the case is based on the relevant facts, the judge can ask any questions to any witnesses at any stage of the trial. Now, section 311 of CrPC, confers powers on the judge to summon any witness at any stage of the trial. Keeping both the sections in mind, it can be stated that both the sections are complementary to each other in their nature. A judge cannot invoke section 165 of the Evidence Act without first invoking section 311 of CrPC. This was also stated in the case of Zahira Habibullah Sheikh vs. The State of Gujarat. The court, in this case, held that the powers conferred by the two sections have to be used simultaneously in order to meet the ends of justice. Hence, in such cases, the adversarial aspect of the Indian judicial system takes a back seat and the judges start participating in the proceedings actively.
Written by Tarushi Goel, a fifth year law student of O.P Jindal Global University. She is currently pursuing BA LLB and is inclined towards legal research.
