POWER OF COURTS UNDER SECTION 311 OF THE CODE OF

CRIMINAL PROCEDURE, 1973

SUBMITTED BY

Rishabh Sen Gupta

UID: SM0116036

Faculty-in-charge

Dr. Ishrat Husain

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM.

1
 TABLE OF CONTENTS

Table of Cases.........................................................................................................................3
Table of Statutes......................................................................................................................3
Introduction.............................................................................................................................4
Aim...........................................................................................................................................5
Objectives.................................................................................................................................5
Scope and Limitations...............................................................................................................5
Review of Literature..................................................................................................................5
Research Questions....................................................................................................................5
Research Methodology..............................................................................................................6
Analysis of Section 311..............................................................................................................8
Scope of Section 311..................................................................................................................9
Case Analysis...........................................................................................................................13
Conclusion................................................................................................................................16
Bibliography.............................................................................................................................17

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Table of Cases
Surjit Kaur v. Baldev Singh, 1983 Cr LT 109 (Punj)
Agya Ram v. State of Uttar Pradesh, (1990) 1 Crimes 23
Mohanlal Shamji Soni v. Union of India, AIR 1991
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367
Ramchandra Rao v. State of Karnataka, AIR 2002 SC 1856
Ashwani Kumar v. State of Chattisgrah, 2004 (16) AIC 934
Raisul Azam v. State of Bihar, 2013 (2) Crimes 97
Rajaram Prasad Yadav v. State of Bihar & Anr.
Ravi v. State, 1987 (2) Crimes 234 (Mad)
Matia Goala v. State, 68 CWN 260
Natasha Singh v. CBI (State)

Table of Statutes
Criminal Procedure Code, 1973
The Constitution of India, 1950

3
Abstract: This paper has explained the laws relating to Section 311 of the CrPC which
enables the Court at any stage of any inquiry, trial or other proceeding under the Code, to
summon any person as a witness. It has also highlighted 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 judicially and not capriciously because any
improper exercise of the power may lead to undesirable results. Analysis of the same has
been discussed along with case laws too.

INTRODUCTION

Section 311 of the CrPC enables the Court at any stage of any inquiry, trial or other
proceeding under the Code, to summon any person as a witness. The power is not confined to
any particular class of persons as a witness. The power has been conferred to satisfy the quest
of the Court in order to do justice between the parties. It is crystal clear that justice is not
from the point of view of the prosecution or the accused, but justice from the point of view of
an orderly society.

Holding the balance of scales in its hands, the court keeps an open mind. Any party to the
proceedings may point out to the Court under section 311 the desirability of some evidence,
but the decision and the discretion in that regard is that of the court.1 Therefore where the
witness has already been examined in pursuance of directions of the High Court and the Trial
Court is of the view that no further examination is required and the accused are trying to
prolong the trial the re-summoning of the witness is refused.2

In order to enable the Court to find out the truth and render a just decision the salutary
provisions of section 311 are enacted where-under any Court by exercising its discretionary
authority under any stage of enquiry, trial or other proceeding can summon any person as
witness or re-examine any person already examined who are expected be able to throw light
upon the matter in dispute.3 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 judicially and not capriciously because any improper exercise of the
power may lead to undesirable results.

1
Surjit Kaur v. Baldev Singh, 1983 Cr LT 109 (Punj)
2
Agya Ram v. State of Uttar Pradesh, (1990) 1 Crimes 23
3
Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346

4
This power should not be used for filling up the lacuna by the prosecution or 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.4 Hence, the criminal Courts should exercise their available powers such as those
available under sections 309, 311 and 258 of the Code to effectuate the right to speedy trial, 5
at the behest of both the defence as well as the prosecution.6

AIM

To understand and analyse Section 311 in CrPC.

OBJECTIVES

The objective of this research paper is to review the laws relating to the power of the Court to
summon material witness, or examine person present under CrPC.

SCOPE AND LIMITATIONS

The project is limited to analysis of laws relating to Section 311 and related laws in Indian
context only.

LITERATURE REVIEW

1. Ratanlal, The Code of Criminal Procedure: The Criminal Law (Amendment) Act,
2013, Lexis Nexis 2013.

Along with case laws and law, the author states that the provision is to enable the Court to
determine the truth and to render a just decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or arbitrarily, as any improper or capricious
exercise of such power may lead to undesirable results. An application under Section 311
Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367
5
Ramchandra Rao v. State of Karnataka, AIR 2002 SC 1856
6
Ashwani Kumar v. State of Chattisgrah, 2004 (16) AIC 934

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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 opposite party.

2. Sarkar, S.C., Commentary on the Code of Criminal Procedure, 1973, Allahabad

Dwivedi Law House, 2005.

The author highlighted that the power conferred under s.311 should be invoked by the
Court only to meet the ends of justice. The power is to be exercised only for strong and
valid reasons and it should be exercised with caution and circumspection. The High Court
has wide power under s.311,CrPC to recall witnesses for re-examination or further
examination, if it is necessary in the interest of justice, but the same has to be exercised
after taking into consideration the facts and circumstances of each case.

RESEARCH QUESTIONS

1. What are the laws relating to power of the Court to summon material witness, or
examine person present under CrPC?

2. What is the scope of the Section 311?

3. How Section 311 evolved by Indian judiciary?

4. What are the analyses of Court regarding Section 311 through various case laws?

5. What are the exceptions to the laws relating to arrest without warrant?

RESEARCH METHODOLOGY

1. Approach to research

In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library-based study, which means that the materials needed by a researcher may
be available in libraries, archives and other data-bases. This research is totally based on
library. Various types of books were used to get the adequate data essential for this project.
The researcher also used computer laboratory to get important data related to this topic. Help
from various websites were also taken.

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2. Type of research

It is clearly an exploratory type of research. In an exploratory study the researcher works on a

relatively unstudied topic or area of knowledge with purpose of finding out unknown or
partially known facts.

3. Sources of data collection

Data has been collected from secondary sources like: books, web sources etc. No primary
sources like survey data or field data were collected by the researcher.

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 ANALYSIS OF SECTION 311

As per the provision laid down in the Code of Criminal Procedure, 1973 as follows:-

S.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.

On looking at this provision, it can be noticed that the section is manifestly in two parts. The
word used in the first part is “may” and the second part uses “shall”. In consequence, the first
part gives purely discretionary authority to the criminal Court and enables it, at any stage of
an enquiry, trial or other proceeding under the Code,

a) to summon anyone as a witness, or

b) to examine any person present in the Court, or
c) to recall and re-examine any person whose evidence has already been recorded.

On the other hand, the second part is mandatory and compels the Court to take any of the
aforementioned steps if the new evidence appears to it essential to the just decision of the
case.7 The second part of the section does not allow for any discretion but binds and compels
the Courts to take steps, if the fresh evidence to be obtained, is essential to the just decision of
the case.8 While doing criminal justice, the Court cannot stop just rest contented by merely
finding fault with the prosecution agency. The role of the presiding judge is something more
than merely to be an umpire or referee in games played. Hence, with regards to the
proceedings, the Court has got to be alert, active and positive to participate and cannot just
afford to be a lone-bystander on platform watching the game declaring points or runs.9

The power conferred under s.311 should be invoked by the Court only to meet the ends of
justice. The power is to be exercised only for strong and valid reasons and it should be
exercised with caution and circumspection. The High Court has wide power under
s.311,CrPC to recall witnesses for re-examination or further examination, if it is necessary in

7
Supra note 3
8
Raisul Azam v. State of Bihar, 2013 (2) Crimes 97
9
State of Gujarat v. Butasing Indrasing, (1990) 3 Crimes 620

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the interest of justice, but the same has to be exercised after taking into consideration the
facts and circumstances of each case.10

Where the accused had already been afforded full opportunity to cross-examine the
witnesses, the witnesses had turned hostile the application for recalling the witnesses was
disallowed. Where the witness has been won over as shown by his subsequent affidavit,
refusal to re-call such witness for further cross-examination would be proper.11

Application for summoning witness under s.311 CrPC can be filed by either party, the Court
can exercise power under s.311 CrPC suo motu.12Where the object of the accused in recalling
witnesses already examined in the case is to prolong the trial of the case, the Court would not
allow such application.

The discretion given by the first part is very wide and its very width requires a corresponding
caution on the part of the Court. But the second part does not allow for any discretion; it
binds the Court to examine fresh evidence, and the only condition prescribed is that this
evidence must be essential to the just decision of the case. Whether the new evidence is
essential or not must of course depend on the facts of each case and has to be determined by
the presiding Judge.13Whenever the Court finds that any evidence which is essential for this
has not been examined, the law enjoins it to call and examine it. If this results in what is
sometimes thought to be to the “filling of loopholes”, that is a purely subsidiary factor and
cannot be taken into account.14 Where the records of the case disclose also that the
investigation was not properly conducted and that the investigating officer did not attempt to
determine the criminal liability of all those concerned in the case, Sessions court should
attempt to arrive at the truth by using all the powers, which are vested on Courts, under
ss.311, 319, etc. of the Code.15

A trial Judge misdirects himself if he enables an advocate to play the dual role of defence
counsel and Court witness by allowing the defence prayer and permitting the advocate to
address the jury. Such a course was fraught with the danger of defeating justice. The accused

10
Jagdish Chand v. Kartar Chand, 2010 (1) Crimes 639 (HP)
11
Heeralal v. State of Rajasthan, 1998 Cr LJ
12
Pranab Kishore Muduli v. State of Orissa, 2004 Cr LJ 1947
13
Udaibir v. State of UP, 2002 All LJ 173
14
Ram Jeet v. State, AIR 1958 All 439
15
Ravi v. State, 1987 (2) Crimes 234 (Mad)

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could not be said to have had a fair trial and the High Court set aside the conviction and
sentence and ordered re-trial in accordance with law.16

SCOPE OF SECTION 311

The scope of Section 311 has been highlighted in the case of Rajaram Prasad Yadav Vs.
State of Bihar & Anr. (2013) It has been stated that, under s. 311, Cr.P.C. widest of the
powers have been invested with the courts when it comes to the question of summoning a
witness or to recall or re-examine any witness already examined. This is clear from the
expression “any” used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person
as a witness", "person in attendance though not summoned as a witness", and "person already
examined".

Section 138 of the Evidence Act, prescribes the order of examination of a witness in the
court, which will have to necessarily be in consonance with the prescription contained in s.
311 Cr.P.C. The power u/s. 311, Cr.P.C. can be exercised by 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.

While dealing with an application u/s. 311 Cr.P.C. read along with s. 138 of the Evidence
Act, the following principles, as emerging from various decisions of this Court, will have to
be borne in mind by the courts:

a) Whether the court is right in thinking that the new evidence is needed by it? Whether the
evidence sought to be led in u/s. 311 is needed by the court for a just decision of a case?

b) The exercise of the widest discretionary power u/s. 311 Cr.P.C. should ensure that the
judgment should not be rendered on inchoate, inconclusive or speculative presentation of
facts, as thereby the ends of justice would be defeated.

c) 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.

16
Matia Goala v. State, 68 CWN 260

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d) The exercise of power u/s. 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.

e) 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.

f) The wide discretionary power should be exercised judiciously and not arbitrarily.

g) 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.

h) The object of s. 311 Cr.P.C. simultaneously imposes a duty on the court to determine the
truth and to render a just decision.

i) The power u/s 311 Cr.PC should be exercised where the court arrives to the conclusion that
additional evidence is necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice without such evidence
being considered.

j) Exigency of the situation, fair play and good sense should be the safe guard, 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.

k) 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.

l) The additional evidence must not be received as a disguise or to change the nature of the
case against any of the party.

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m) The power must be exercised keeping in mind that the evidence that is likely to be
tendered, would be germane to the issue involved and also ensure that an opportunity of
rebuttal is given to the other party.

n) The power u/s. 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.

In Natasha Singh v. CBI (State) (2013), the scope and object of the provision is to enable the
Court to determine the truth and to render a just decision after discovering all relevant facts
and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must
be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious
exercise of such power may lead to undesirable results. An application under Section 311
Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional
evidence must not be received as a disguise for retrial, or to change the nature of the case
against either of the parties. Such a power must be exercised, provided that the evidence that
is likely to be tendered by a witness, is germane to the issue involved. An opportunity of
rebuttal however, must be given to the other party. The power conferred 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 great caution and
circumspection. The very use of words such as any Court, at any stage, or any enquiry, trial
or other proceedings, any person and any such person clearly spells out that the provisions of
this section have been expressed in the widest possible terms, and do not limit the discretion
of the Court in any way. There is thus no escape if the fresh evidence to be obtained is
essential to the just decision of the case. The determinative factor should therefore be,
whether the summoning/recalling of the said witness is in fact, essential to the just decision of
the case.

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 CASE ANALYSIS

The Supreme Court in Raghu Nandan v. State of U.P.17 observed that where the prosecution
as also the defence omitted the examination of the medical doctor at the trial, the important
questions emerging from a reading of the post-mortem report as to the alleged time of murder
etc. remained unanswered and the Court also failed to consider their importance. Therefore,
the High Court itself should have taken further medical evidence of the doctor under Section
311 of the Code. Where the trial Court did not examine the Investigating Officer in a case
under Section 307, IPC, causing prejudice to the accused, the High Court of Orissa remanded
the case back to the trial Court for examining the Investigating Officer and deciding the case
afresh. The Apex Court has expressed a view that the Court has the inherent power to recall a
witness if it is satisfied that he is prepared to give evidence which is materially different from
that he had given earlier at the trial.

The Calcutta High Court in Niranjan Ghosh v. Ananda Mandal18, held that where the
prosecution failed to examine its witnesses in spite of several opportunities, while the case
remained pending for seven years, permission for examining further unimportant witnesses
may be refused.

In Tripurari Mohan Prasad v. Union of India,19 the Inquiry Officer of the case had been
examined and cross-examined. Merely because one or the other officer was posted as
Director or Joint Director of C.B.I, during the investigation of this Fodder Scam case, it could
not be said that their evidence was relevant for the purpose of present case.

Also, no cogent ground had been brought on record to justify interference in the lower
Court’s order refusing to summon certain persons as witnesses. Therefore, the order of the
lower Court refusing issuance of summons to witnesses was proper and valid.

The High Court of Jharkhand in Kali Vishwakarma v. State of Himachal Pradesh20 upheld
the order of the trial Court rejecting application for recalling witnesses for further cross-
examination. A compromise petition was filed by the parties for the offence of rape and
attempt to murder. But the alleged offences were not compoundable. None of the witnesses
had stated that he had given incorrect statement before the Court. The compromise reached
between the parties was not in the interest of the society. By recalling witnesses the defence

17
1974 AIR 463
18
AIR 1993 SC 962
19
2006 CriLJ 774
20
1973 AIR 2773

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wanted to fill up the locuna and demolish the prosecution case by further cross-examining the
witnesses on points on which detailed cross-examination had already been made. The High
Court therefore, refused to interfere with the order of the trial Court.

Particularly, in cases of circumstantial evidence, it is the duty of the Court to take initiative to
summon and examine material witnesses in order to bring the relevant circumstances on
record. The Court must exercise its discretionary power conferred to it by Section 311 of the
Code while dealing with such cases.

The Supreme Court in Shailendra Kumar v. State of Bihar21 held that the presence of
Investigating Officer at the time of trial is a must. It is his duty to keep the witnesses present.
If there is failure on part of any witness to remain present, it is the duty of the Court to take
appropriate action including issuance of bailable/ non-bailable warrants, as the case may be.

It should be well understood that prosecution cannot be frustrated by such methods and
victims of the crime cannot be left in lurch. In this murder case, the Court and the Asstt.
Public Prosecutor proceeded with the trial without informing the police station Officer-in-
charge and disposed of the case as if the prosecution had not led any evidence.

It appeared from the manner the case was preceded that the accused wanted to frustrate the
prosecution by unjustified means and by one way or the other, the Additional Sessions Judge
as well as APP had not taken any interest in discharge of their duties.

It was the duty of the Court to issue summons to the Investigating Officer under Section 311
if he failed to remain present at the time of trial of the case. The Apex Court held that closure
of prosecution evidence without informing the Investigating Officer was not proper and
remanded the case back for retrial.

The High Court of Bombay in a case held that where an application for recalling witnesses
intended to bring out some contradictions in prosecution witnesses on the ground that earlier
advocate failed to do so which had caused prejudice to accused was not permissible under
Section 311 of the Code. The Court held that application for recalling witnesses for further
cross-examination in the instant case was not bona fide hence its rejection was proper.

In Iddar and others v. Aabida and another,22 Supreme Court clarified that the power of the
Court to summon material witness is not only for favour of accused, but the witnesses

21
2009 (1) PLJR 111
22
2007 (5) SC 688

14
favouring prosecution case can also be summoned and examined even if it amounts to filling
of loopholes in the prosecution case.

The Apex Court further pointed out that the phraseology of the section shows that it is
manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses
“shall”. In consequence, the first part gives purely discretionary authority to a Criminal Court
and enables at any stage of enquiry, trial or proceeding under the Code of Criminal Procedure
to:

(a) summon any witness

(b) to examine any person present in Court, or

(c) to recall and re-examine any person whose evidence has been recorded earlier.

On the other hand, second part is mandatory and compels the Court to take any of the
aforesaid steps if new evidence appears to it essential for reaching a just decision in the case.
Thus the provision contained in Section 311 is of a supplementary nature and aims at
ensuring that there may not be failure of justice on account of mistake of either party in
bringing valuable evidence on record or leaving ambiguity in the statements of witnesses
examined from either side.

The section is limited to the benefit of the accused but may also be used in support of
prosecution case. It applies to all proceedings, enquiries and trials under the Code at any
stage. It is for this reason that this discretionary power has to be used judiciously by the
Courts.

The Supreme Court in Hanuman Ram v. State of Rajasthan,23 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.

In the instant case, the witness was examined and re-examined by the Magistrate. The
opposite party filed an application before the Magistrate to re-summon the said witness for
cross-examination with reference to his statement before the Children’s Court which was not
allowed by the Court on the ground that no injustice was likely to be caused without such
cross-examination.

23
S.L.P. (Crl.) No.7382 of 2007

15
 CONCLUSION

The provision is to enable the Court to determine the truth and to render a just decision after
discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily,
as any improper or capricious exercise of such power may lead to undesirable results. An
application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case
of the prosecution, or of 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 opposite
party. Further, the additional evidence must not be received as a disguise for retrial, or to
change the nature of the case against either of the parties. Such a power must be exercised,
provided that the evidence that is likely to be tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal however, must be given to the other party. The power
conferred 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
great caution and circumspection. The very use of words such as any Court, at any stage, or
any enquiry, trial or other proceedings, any person and any such person clearly spells out that
the provisions of this section have been expressed in the widest possible terms, and do not
limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to
be obtained is essential to the just decision of the case. The determinative factor should
therefore be, whether the summoning/recalling of the said witness is in fact, essential to the
just decision of the case.

16
 BIBLIOGRAPHY

3. K. N. Chandrasekharan Pillai, R. V. Kelkar’sCriminal Procedure Code, Eastern Book

Company, 2016.
4. http://policewb.gov.in/wbp/misc/act/Amendment-Act-2008.pdf
5. Ratanlal, The Code of Criminal Procedure: The Criminal Law (Amendment) Act,
2013, Lexis Nexis 2013.
6. Sarkar, S.C., Commentary on the Code of Criminal Procedure, 1973, Allahabad
Dwivedi Law House, 2005.

17