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4-Powers and Restrictions 309 and 311 CRPC - by SMT M Subhavani PDF
4-Powers and Restrictions 309 and 311 CRPC - by SMT M Subhavani PDF
by
M.Shubhavani,
Principal Senior Civil Judge
Kadapa
for just decision of the case and therefore, it must be used judicially and
not capriciously or arbitrarily. If such a petition gives unfair advantage to
any side, causes serious prejudice or disadvantage to the defence of the
accused or it is motivated to fill up the lacuna of either side, the court
should re-frame from exercising the power. The paramount consideration
for exercising the discretion in entertaining such petition to examine or
recall and reexamine a witness being the essentiality for just decision of
the case and for the ends of the justice, the court must e careful enough to
see that its action should not result in causing injustice either the accused
or prosecution.
In Balvanth Singh vs state of Rajasthan in 1986 Cr.L.J.1374, it
was held that Section 311 of the Cr.P.C has two parts. The first part grants
discretion to the criminal court to enable it at any stage on enquiry, trial or
other proceeding under the Code to act on three ways namely, (i) to
summon any person as a witness, or (ii) to examine any person in
attendance, though not summoned as a witness, or (iii) to recall and re-
examine any person already examined. Under the second part, the court is
duty bound to summon and examine or recall and re-examine any such
person if his evidence appears to be essential to just decision of the case.
The powers conferred by the first part are discretionary and such discretion
has to be exercised in accordance to the established principles of law.
However, under the second part of provision of section 11, there is no
discretion to summon are not to summon a witness. If the court comes to
conclusion that it is necessary for the just decision of the case, the court is
duty bound to summon and examine or recall or re-examine any person if
his evidence appears to be essential for just decision of the case.
In the case of Mohanlal Shamji Soni Vs. Union of India & Anr.
reported in 1991 Supp. (1) SCC 271, the Hon'ble Apex Court has
interpreted the provision of Section 311 of the Cr.P.C. and has delineated
the power and function of the trial court in the matter of exercising the
power under Section 311 of the Cr.P.C. 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 re-
examine any person already examined, when it thinks it expedient to do
so, in the interest of justice. 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.
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The High Court of Punjab in Dalip Singh vs. 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.
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 moto or at the behest of the
accused for even the prosecution.
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 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.
Hon'ble Apex Court in Zahira Habibullah Sheikh and another vs.
State of Gujarat and others (2006)3 SCC 374 has held as under:-
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. The section is not limited
only for the benefit of the accused, and it will not be an improper exercise
of the powers of the Court to summon a witness under the Section merely
because the evidence supports the case for the prosecution and not that of
the accused.
Leading Judgment of SC on recalling of witness Us 311 Cr.p.C in
P.Chhaganlal Daga Vs. M.Sanjay Shaw, (2003) 11 SCC 486, held
that;
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to see that its action should not result in causing injustice either the
accused or prosecution.
Important decisions:
1) Sundar Lal Vs. Urmila thakur in Cr. Revision no: 313 of 2017,
dt.16.03.2018.
2) Jamat Raj Kewajli Govani vs State Of Maharashtra in AIR 1968 SC
178.
3) Raja Ramprasad Yadav vs State Of Bihar and another in 2013(14) SCC
461.
4) U.T of Dadra and Nagar Haveli and Anr. Vs. Fatehsinh Mohansinh
Chauhan in 2006(7) SCC 529.
5) Iddar & Others Vs. Aabida & Anr in AIR 2007 SC 3029.
6) P. Sanjeeva Rao Vs. State of A.P in AIR 2012 SC 2242.
7) Hoffman Andreas Vs. Inspector of Customs, in Amritsar 2000(10) SCC
430.
8) Vijay Kumar Vs. State of U.P and Anr in 2011(8) SCC 136.
9) Mannan SK and Others vs State of West Bengal and Anr in AIR 2014
SC 2950.
10) Lakshmi Priya Exports (India) Pvt limited and others Vs. Ramalingam
Mills limited and another 2016 law suit (Hyd) 46.