-By Varda Saxena
India is an example of an adversarial system of law. However, there are instances when the Magistrate steps up to assist the course of justice. The powers under Section 311 of the Criminal Procedure Code, 1973 (“CrPC“), which complement Section 165 of the Evidence Act, 1872 (“Evidence Act”) is a sound example. Such instances cause the convergence of the inquisitorial and adversarial justice model and elucidate the theoretical framework illustrated in “Converging Criminal Justice Systems: Guilty Pleas and the Public Interest” . The convergence framework is the product of stretching singular systems (like adversarial/inquisitorial) to discharge the judicial burden in the most effective manner possible. Hence, in this article, the author analyses the convergence caused by Section 311 of the CrPC by clearly elucidating its ambit with the help of judicial precedents to decode the effectiveness and just usage of the same.
Section 311 of the CrPC is instrumental in recording evidence that could favour the accused, the prosecution, and/or the orderly society. The Section empowers the Magistrate to “(i) summon any person as a witness; or (ii) examine any person in attendance, though not summoned as a witness; or (iii) recall and re-examine any person already examined. Further, (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.” However, the ambit of “any witness” does not include the accused himself.Further, people interested in the case, apart from the prosecution, are also entitled to submit an application to the Court to bolster the evidence in support of the prosecution. However, the same can be rejected by the Court if the application does not have substance.
It has been stated that the application under Section 311 of CrPC can be entertained anytime during the trial. However, the “trial” within this Section’s meaning stands terminated as soon as the judgment is procured. Before the judgment, fresh evidence can be called upon under this Section to aid the justice process. For example, in a case, the Court had already recorded the accused’s statement and the judgement was due. Still, the prosecution applied to summon more witnesses. It was opined that mere posting of a case for judgment does not limit the Court’s power to summon a material witness. The adjudication of whether a witness is a material witness depends on the facts of the case. Courts have opined that it is not proper to summon a witness merely because it makes the prosecution’s case against the accused stronger. Further, leaving the application under Section 311 of CrPC undecided or unnecessarily delaying its adjudication is tantamount to prejudice to the accused and cannot be allowed. Hence, the following piece examines the liberal and restrictive discourse of Section 311 of CrPC and argues that there exists a convergence between these discourses, making the existence of one supplementary to the effective existence of the other.
Enlarging the Scope of Applicability
As explained above, the calling of witnesses was usually practised to discover “the truth of the case“, hence, the usage of Section 311 of CrPC is sometimes restrictively viewed. To address this restrictive nature, the Malimath Committee Report, 2003 explained that the “just decision of the case” is not synonymous with “the duty to discover the truth”. The Report clarified that instead of discovering the “truth of the case”, the meaning of just decision encompasses “proof of relevant facts”. The practice in England has also been similar. In Coulson v. Disborough,it was observed that if neither party chooses to call a certain witness, then the judge is empowered to discover the factual truth with the help of additional evidence so collected.
Courts have opined that the actions taken under Section 311 of CrPC should clear ambiguity and avoid prejudice to any party. In Union Territory of Dadra & Haveli v. Fatehsinh Mohansinh Chauhan, the Apex Court stated that such power should be exercised to prove valid facts and not fill any “lacunas in the prosecution’s case”. The accused in the said case had raised a plea of alibi, saying he was present in the Collector’s chambers. The defence had examined two witnesses in support of the plea but not the Collector. The prosecution requested to summon the Collector as per Section 311 of CrPC, whereas the defence described it as an attempt to fill lacunas. The Court opined that such application needs to be allowed for a just and fair trial, and as the defence had presented the best available evidence, it wouldn’t have caused prejudice to their case. Hence, calling the Collector was not considered an attempt to fill lacunas but to unveil all facets of the case. Further, in the case of Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court had clarified that a witness needs to be examined if his statement is “essential to the just decision of the case”. It was also clarified that production of “best available evidence” is aided by the following provisions apart from Section 311—Section 60 (oral evidence), 64 (documentary evidence) and 91 (Evidence of terms of contracts grants and other dispositions of property in the form of document) of the Evidence Act.
It should also be noted that Courts do not have the power to compel either party to examine any particular witness(es). Even though courts have stated that actions under Section 311 of CrPC should not be undertaken to fill the lacunae, a liberal approach towards the same has also been observed. In Zahira Sheikh’s case, the Court stated that sometimes court directed examinations might be “filling the loopholes”; however, this should be considered purely subsidiary and should not be taken into account. The substance in the new evidence needs to be adjudicated by the Judge on the factual basis of the case.
To further enlarge the ambit of Section 311 and its applicability, the following rules have also been promulgated through precedent:
- When the defence counsel was absent during the cross-examination of a witness, and the examination was completed, an application for recall cannot be rejected because it is belated.
- However, all delays in filling an application for recall need to be justified in the application.
- When an application is made that the witness, before he is examined, be called for test identification (though for that purpose, the accused did not make an application during the investigation), it should not be rejected, stating that the application is belated.
There has been a mention of “just decision of the case” in Section 311 and in the above-mentioned precedents. The test of a just decision is to check whether the decision to allow an application is equitable and not in the interest of/or intentionally favouring any one party. To facilitate the understanding of this phrase, the following precedents could be considered:
- In Bhikari Charan Bhoj v. State of Orissa, which was a case of forgery, the Court held that it is proper and just to summon the handwriting expert and the investigating officer after the prosecution evidence has been closed.
- In the dowry death case of Syed Firozuddin v. State of Rajasthan, the neighbours were material witnesses. Hence, the refusal to summon as per Section 161 of CrPC was invalidated, and they were called upon under Section 311 of CrPC.
- Whenever calling/recalling a witness is essential for both prosecution and accused, the application for the same cannot be rejected.
- When the production of some evidence or summoning a witness is necessary for ascertaining the validity of facts and for a just decision, the application cannot be rejected even if the document was not produced from proper custody.
- In a case where the documents attached with the charge-sheet were not proved, and relevant/valid documents had not been filed, the Court validated the production of such valid documents as per Section 311 of CrPC and Section 165 of the Evidence Act.
Restricting the Scope of Applicability
Even though courts have adopted a liberal discourse while allowing and adjudicating Section 311 applications, the Malimath Committee Report has identified how the CrPC has certain provisions that restrict the ambit of Section 311 unintentionally. For example, in the case of procedure related to the summons, Section 255 of CrPC accounts the evidence produced by the prosecution and can cause the production of further evidence on its motion. However, one will not find a similar provision for warrants (Section 238- 250) or in sessions (Section 225- 232) trials. Hence, courts cannot consider any evidence collected under Section 311.[i] Additionally, the Sessions Judge is not allowed to ‘fish’ for witnesses.[ii] Therefore, in the case of Radha Madhab Pakra v. Emperor, the Court disallowed the examination of witnesses for the prosecution to buttress their arguments after the defence had closed their case.[iii]
As discussed above, usually courts disallow the filling of lacunas using this provision. Such practice has also been slightly restrictive. In the case of Rajendra Prasad v. Narcotic Cell, it was stated that “[l]acuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case, but an oversight in the management of the prosecution cannot be healed as irreparable lacuna.” Such oversight was also noticed in Saraswati Devi v. State of Jharkhand, where the prosecution did not examine any witnesses for five years. After the closure of the evidence, the informant filed an application under Section 311 of CrPC to summon the prosecution’s witnesses. However, the same was rejected by the Magistrate due to ill-management.
Additionally, it has also been established that courts will not allow recalling a witness explaining the delay in lodging the FIR when the accused’s testimony has been recorded, and the Public Prosecutor gave up the proposed witness before such recall. These restrictions have been put in place to bolster the Doctrine of Balance which maintains the interests of the victim and the accused. Courts have opined that the concept of “Fair Trial” cannot be limitlessly expanded/stretched by permitting endless recalling of evidence or witnesses on grounds like magnanimity, amongst others.
Misuse of the Provision
The catchphrases “just decision of the case”, “discovering the truth of the case”, “filling lacunas in the case” have created a plethora of guidelines for Section 311 applications. Certain guidelines seem liberal, while the others are viewed as curtailing the ambit of the Section. However, most of such restrictive precedents were put in place to curb the rampant misuse of this Section. In the case of Devinder Singh v. State, the Court stated that “[r]ecalling of witnesses is necessitated by exigencies and for fair play. No party should be allowed to misuse the process of Court by adopting dubious modes.” There have been multiple instances where courts pinpointed such misuse and created restrictive rules for the Section’s applicability. In Shyam v. State of M.P., a few days after examining the first witness, the defence moved the application under Section 311, stating that a letter expressing ‘ignorance’ of the murder had surfaced. The Court found that such an application was submitted to delay the trial and was a misuse of the provision. There have been multiple instances where counsels have called some or all witnesses for re-examination after the other side had made their case. Such practices have been condemned by courts and have been cited as instances of misuse.
Some other practices of misuse include recalling witnesses after changing one’s counsel and recalling witnesses using vague allegations such as ‘a person was wrongly cited as a witness‘. Even summoning evidence that is tangentially relevant or irrelevant has been considered as a misuse of Section 311. In the case of Tripurari Mohan Prasad v. UOI, such irrelevance was established when the prosecution stated their disbelief in the disclosure statement of the accused. Thereafter, they filed an application for recalling the Investigating Officer and production of proof of disclosure. The Court found this application to be frivolous, which could result in the miscarriage of justice.[iv]
The analysis presented herein aimed to establish the position of law vis-à-vis Section 311 of CrPC. The liberal interpretations of courts and the Malimath Committee have established how it is essential to use this provision amicably to meet the ends of justice. However, restrictive pronouncements like ‘filling lacunas’ are nothing but guidelines to curtail misuse. The interplay between the legal jurisprudence behind this Section has led to the conclusion that there is a dire need for descriptive guidelines on ascertaining the ambit of “just decision”. There is a need to answer whether the “truth of the case” can be made synonymous with the above phrase by including only factual verification in its ambit. However, there is still scope of enlarging the ambit of Section 311 by providing the benefit under Section 255 for warrants and sessions trials as well. Further, courts have also held that reform is needed in the Advocates Act, 1961 and other such rules so that procedure is not flouted or delayed due to the unfit nature of the counsel.
[i] Malimath, § 2.18.6.
[ii] Awal Khan v. Empress, 1892 4 PR.
[iii] Bani Madhab Roy v. Bosaraj Gosami, 4 Cal WN 604.
[The author is a third-year law student at Jindal Global Law School, Sonipat]