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This article is written by Ritika Sharma, pursuing B.Com. LL.B. (Hons.) from the University
Institute of Legal Studies, Panjab University. The article discusses the meaning, scope,
essentials, and guiding principles for the application of Section 311 CrPC. In addition to
these, the article exhaustively studies the importance and misuse of this provision with the
help of several judicial pronouncements.
Table of Contents
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1. Introduction
2. Overview of Section 311 CrPC
2.1. Meaning of Section 311 CrPC
2.2. Scope of Section 311 CrPC
2.3. When can Section 311 CrPC be invoked
3. Examination of witnesses
4. Suo moto power of the Court
5. What can be considered ‘essential’ to the just decision of the case
6. Importance of Section 311 CrPC
6.1. Ensures a fair trial
6.2. Upholds the rule ‘innocent until proven guilty’
6.3. Ensures justice
6.4. Follows the rule of ‘audi alteram partem’
7. Guiding principles under Rajaram Prasad Yadav v. State of Bihar (2013)
8. Principles regarding application of Section 311 CrPC
8.1. Witness can’t be recalled merely because he/ she has given a different statement in
another case
8.2. Delay in filing an application under Section 311 CrPC
8.3. Power to summon is not confined to any particular class of persons
8.4. The action may equally benefit the prosecution
8.5. Paramount consideration to the justice in the case
8.6. Not empowered to summon documentary evidence
8.7. Not applicable if the witness’s examination, cross-examination, or re-examination is not
over
8.8. Can be invoked till the pronouncement of the judgement
8.9. When the court calls, the witness does not become a party to the litigation
8.10. Parties to pay the costs
9. Difference between Sections 311 and 391 CrPC
9.1. Table of differences between Section 311 and Section 391 CrPC
10. Grounds of dismissal of application under Section 311 CrPC
11. Misuse of Section 311 CrPC
12. Conclusion
13. Frequently Asked Questions
13.1. What are the essential ingredients of Section 311 of the Criminal Procedure Code?
13.2. How is Section 311 of the Criminal Procedure Code misused?
13.3. What is Section 311A of the Criminal Procedure Code?
14. References
Introduction
The importance of trial lies with procuring the presence of the witnesses and the person to
whom summons are sent. However, what if the stages of inquiry or examination of a person
conclude and the examination of any witness is still essential for rendering justice? In such
cases, Section 311 of the Code of Criminal Procedure, 1973, comes into the picture.
In Jennison v. Baker (1972), Salmon LJ said, “law should not sit limply, while those who
defy it go free and those who seek its protection lose hope.”
Section 311 is one of the significant features of criminal law, empowering courts to perform
its duty in cases where calling any person or recalling any of the witnesses is crucial in
order to answer some questions that are left unanswered during the proceedings of the
Court.
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In the Code of Criminal Procedure, 1898, this provision was specified under Section 540,
which was included in Chapter XLVI under the heading ‘Miscellaneous’. Section 311 which is
placed under the head ‘General Provisions as to Enquiries and Trials’ in the 1973 Code is
almost a verbatim reproduction of Section 540 of the old Code.
Multifarious questions arise with respect to Section 311 and its scope. Some of these are:
Does the court have suo moto power under this section?
When recalled by the court, which party has the power to examine or cross-examine the
witnesses?
What are the grounds for rejection of the application filed under Section 311?
The follow-up piece aims at answering all these questions by defining the meaning and
scope of this Section and shedding light on various rules that lead to the application of this
provision. Moreover, the conundrum around the misuse of this discretionary power is
highlighted with the help of judicial pronouncements. The article explains the judicial power
and the ambit within which Section 311 can be exercised.
It is divided into two parts, where the first part is the discretion of the court as reflected by
the usage of the word ‘may’ and the latter part is a mandate according to which the court
must call or recall witnesses for the just decision of the case.
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In Vijay Kumar v. State of Uttar Pradesh and Anr. (2011), the ambit of Section 311 was
examined and the Supreme Court explained that wide discretionary power has been granted
to the Court under this Section; therefore, it should be exercised in accordance with the
principles of criminal law. Furthermore, in the case of Manju Devi v. the State of Rajasthan
(2019), it was held that the scope of this provision is to determine the truth for the just
decision of the case.
Stage of inquiry- The term ‘inquiry’ has been defined under Section 2(g) of the
Criminal Procedure Code, 1973 as “inquiry means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court”. An inquiry is done in order to
extract information that is important for the case at hand.
Stage of trial- It is essential for the system of justice that a fair trial be conducted in a
court of law. For this, the summon is issued to the accused and other persons whose
presence is valuable for the case.
Other proceedings- The scope of Section 311 has been enlarged with the use of the
term ‘other proceeding’. It is applicable to any proceeding that is carried out under the
Criminal Procedure Code. In the case of Mohanlal Shamji Soni v. Union of India (1991),
the appellant contended that the decision regarding the examination of witnesses by the
Union of India was incorrect since the case was pending for a considerable amount of
time and the defense arguments were also concluded. The Supreme Court observed that
there is no limitation with regard to the stage of the trial and hence, the focus should be
to obtain the evidence which is essential for a just decision in a case. Therefore, in order
to ensure justice, the examination and re-examination of the witnesses were permitted.
Examination of witnesses
The section that specifies the provision related to ‘examination of witnesses’ is Section 135
of the Indian Evidence Act, 1872. It stipulates that the process related to the production
and examination of witnesses is to be regulated by the laws formulated under the statutes.
After the charges are framed by the police authorities, the trial commences. It gives an
opportunity to both parties to examine and cross-examine the witnesses. It is held in three
stages according to Section 137 and Section 138 of the Indian Evidence Act, 1872. Firstly,
an examination-in-chief is conducted which is followed by cross-examination, in which the
opponent party examines the witness. After that, the witness could be examined again by
the first party, which is called a re-examination.
Section 311 aims to widen the scope of examination of witnesses in a criminal case.
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Another important aspect of Section 311 of the 1973 Code is the suo moto power of the
court to call or recall witnesses. The court may be dealing with some cases where the
parties have not shown any will to call the witnesses whose evidence could be instrumental
in making a just decision. In those cases, the court can exercise this power in its own
motion. In the case of Manju Devi v. State of Rajasthan (2019), it was observed that the
court is competent to exercise suo moto power when it is necessary in order to arrive at a
just decision.
In the case of Heeralal Alias Nimma v. State of M.P. (1997), the order of the trial judge,
which refused to summon witnesses, was in question. The Madhya Pradesh High Court in
this case held that the order was casually observed by the trial judge and, hence, does not
meet the requisite legal parameters. While highlighting the importance of suo moto actions
of the courts under Section 311, the court, while highlighting the significance of the best
available evidence, stated that “if it appears to the court that evidence of a particular
witness is essential for the just decision of the case, statute casts the mandate on the court
to summon him”.
However, in the case of Nayan Rajan Guhagarkar v. The State of Maharashtra (2021), the
court passed a suo moto order to examine witnesses under Section 311, but the Bombay
High Court accepted the contention of the petitioner that this provision cannot be used to fill
the lacunae in the prosecution evidence.
Section 311 clearly specifies that the summoning of a witness for the examination or re-
examination is required if it is essential to call or recall them for the dispensation of justice.
The use of the word ‘shall’ in the second part of this provision makes it mandatory for the
court to examine witnesses if it is essential for the just decision of the case. In the recent
case of The State Represented by the Deputy Superintendent of Police v. Tr. Seenivasagan
(2021), the emphasis was laid on the fact that the evidence by a person who is to be
recalled should be essential to the just decision of the case.
The question that arises is what can be considered ‘essential’ to a ‘just decision’.
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In Mukti Kumar Ghosh v. State of West Bengal (1974), the Calcutta High Court held that for
the application of this provision, the Court has to form a bona fide opinion as to the
necessity of such an order. It was further observed that the decision regarding the necessity
of an order under Section 311 would vary from case to case. In the Mohanlal Shamji Soni
case (1991), the Supreme Court highlighted that the fundamental duty of the Court is to
render justice.
In the case of Swapan Kumar Chatterjee v. Central Bureau of Investigation (2019), the
Supreme Court observed that the power under this provision is to be exercised if there is a
strong and valid reason to do so.
In a nutshell, the factors necessary to determine what is essential to the just decision of the
case cannot be circumscribed within some fixed parameters and would depend upon the
facts and circumstances of each case. It has to be ascertained with the utmost care and
circumspection.
Ensures justice
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Section 311 makes the justice delivery mechanism more robust by culling out any scope of
doubt in the process of trial, thereby ensuring justice. In several criminal cases, the parties
seek to take the benefit of Section 311 by claiming that prosecution evidence has given
their previous statements under coercion and, therefore, they should be recalled. This was
also the plea of the prosecution in the case of Ratanlal v. Prahlad Jat (2017). The Supreme
Court rejected the plea and held that apart from ensuring justice to the accused and
prosecution, Section 311 aims at rendering justice from the point of view of an orderly
society.
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Courts should weigh the need for new evidence and determine if it is essential for a just
decision.
This power should be exercised only to determine the truth or to obtain proper proof of
any fact.
The court must be completely satisfied with the fact that examination of witnesses would
result in ensuring justice to the parties.
In cases where proper evidence or material records are not presented, the court should
be liberal in allowing the parties to rectify such errors.
A fair opportunity should be provided to the accused, however, the court should also use
it very cautiously so as to avoid any capricious or improper exercise of such discretionary
power.
The application under this provision should be allowed only for strong and valid reasons.
The objective of recourse to Section 311 must not be to fill a lacuna in the trial but to
prevent any kind of serious prejudice against the parties.
The application should be made on the grounds that it is germane to the issues of the
case and an opportunity for rebuttal should be provided to the opposite party.
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The delay in filing the application creates substantial doubts about the veracity of the new
evidence. When the delay is made in the cases of recalling the witnesses, it is usually
concluded that the witnesses have been won over, and therefore, their examination does
not serve the purpose of invoking Section 311. The application gets rejected where the
delay in filing the application leads to the creation of doubts as to whether a just decision
can be arrived at in a case. The same has been observed in several cases.
The Allahabad High Court in Bheem Singh v. State of U.P. Thru. Secretary Home, Govt. of
U.P. Lucknow (2022) rejected the applications for recalling the witnesses. The case revolves
around the offence of murder under Section 307 of the Indian Penal Code, 1860. The
applications were filed to recall two witnesses after 4 and 1 year of the examination-in-chief
respectively. The court refused to delve deeper into the details of prosecution evidence due
to the following reasons:
There is a huge delay in the filing of the applications and the reasons for such a delay
were unsatisfactory.
The applicant can provide oral or documentary evidence regarding the issue at hand.
It is also pertinent to note that witnesses called under Section 311 can be crossed by both
the accused as well as the prosecution. In Rengaswami Naicker v. Muruga Naicken (1952),
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the Court observed that two rules are to be applied before invoking this provision. The rules
as stated by the Madras High Court are:
That the prosecution and the accused are both equally entitled to cross-examine a court
witness, and
That if the evidence of a court witness is prejudicial to the accused, the accused must be
given the opportunity to rebut the evidence.
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The court can exercise the power under Section 311 till the court is in session of the trial
(i.e. during the trial proceedings). In Aeltemesh Rein v. State of Maharashtra (1980), it was
contended that once the date of the judgement was fixed, the trial was concluded and any
application under Section 311 could not be accepted. However, the Bombay High Court held
that the trial of the criminal case comes to an end once the judgement has been
pronounced, and therefore, an order under Section 311 can be passed at any stage before
that.
When the court calls, the witness does not become a party
to the litigation
This principle was laid down in the case of Mukti Kumar Ghosh v. State of West Bengal
(1954). The Calcutta High Court stated that when the witnesses are called or recalled under
Section 540 (Section 311 of the Criminal Procedure Code, 1973), then the Court has to
decide as to which party is permitted to examine them. The witnesses, merely by being
summoned under this provision, do not become parties to the litigation.
Apart from making the system effective, this principle aims at alleviating the hardships of
the witnesses who are being called again and again in the court of law.
Section 391 simply provides that the appellate court can take further evidence or direct it to
be taken by a magistrate or the court of session. Additional evidence is allowed when the
court is satisfied with one of the following three parameters:
In the case of Zahira Habibulla H.Sheikh and Anr. v. State of Gujarat and Ors. (2004), the
evidence under Section 391 was permitted before the appellate court because the court was
satisfied that the witness had not spoken the truth before the trial court but was willing to
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do so before the appellate court. The Supreme Court, regarding the application of Section
391, observed that the court has to record the reasons before any testimony is allowed
under this provision.
On the other hand, Section 311 allows the calling or recalling of witnesses for the purpose
of examination in the court of trial. The object behind this is to include the important
evidence that could lead to the just decision of a case, while Section 391 simply allows the
appellate court to take further evidence.
This difference was pointed out in the case of Harjit Singh v. The State of Punjab and
Others (2009). In this case, the accused were prosecuted for the offence of cheating but
were acquitted. The petitioner appealed against the decision and filed a petition under
Section 311 before the appellate court for permission to present the photocopy of the
judgement, which he contended was material evidence in this case. The question was
whether additional evidence is admissible before the appellate court when no such request
was made before the trial court. This application was rejected by the Punjab and Haryana
High Court as it opined that it would cause serious prejudice to the accused person. The
court further highlighted the differences between Sections 311 and 391 of the Criminal
Procedure Code. Firstly, Section 311 deals with the examination of additional evidence at
the stage of trial, but Section 391 empowers the appellate court to permit additional
evidence. Secondly, Section 311 makes it mandatory for the court to accept the application
of calling or re-calling witnesses for examination when the same is essential for the just
decision of the case. However, no such mandate is expressed within the wording of Section
391.
S.
Basis Section 311 CrPC Section 391 CrPC
No.
Section 391 has a
Section 311 has a very wide scope. It
relatively narrow scope
is applicable in all the stages such as
1 Scope and is applicable at the
stages of inquiry, trial, or other
appellate stage after the
proceedings.
trial ends.
Object of this provision is to ensure
Section 391 aims at
justice and reach a just decision in
allowing evidence that has
2 Object the case. The court is not empowered
been left out or was taken
to accept an application to fill the
erroneously before.
lacunae in prosecution evidence.
3 Mandate Although the court has discretionary Section 391 creates no
powers, this section makes it such mandate.
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Change of the counsel- The petition under Section 311 cannot be accepted merely
because one of the parties has changed counsel for whatever reason. This was observed
in the case of Ag v. Shiv Kumar Yadav and Anr. (2015). The Supreme Court held that
witnesses cannot be expected to face the inconveniences just because the party has
changed its counsel and is unaware of the defence strategy. If it is permitted, then the
aim of the advancement of justice would not be achieved. Re-trials lead to delays in
rendering justice. Therefore, it is crucial that the petition is dismissed in such cases.
Abuse of process of law- It is one of the causes of the rejection of a plea made under
Section 311 of the Criminal Procedure Code. In the recent case of Sanjeev Singh v. The
State of Jharkhand (2022), a petition was filed under this provision to recall two
prosecution witnesses as the prosecution had brought new evidence in the form of SFSL
(State Forensic Science Laboratory) and CDR (Call Data Record). However, the Jharkhand
High Court, while rejecting this petition, held that the CDR cannot be tinkered with and,
thus, it already provides authentic information. All the details with regard to calls were
stored in it. Furthermore, the court highlighted that the witnesses cannot be recalled
when the court is of the view that all the information from the witnesses has already
been taken, and hence, any abuse of the process of law should be avoided by rejecting
such applications. Similarly, in Umar Mohammad v. State of Rajasthan (2007), when an
application under Section 311 was filed after nine months after the deposition of the
prosecution witness, the Supreme Court of India rejected the same, observing that it is
unlikely that the application was filed by the prosecution witness on his own volition.
To fill the gaps in the prosecution evidence- The object of the provision is to ensure
justice. However, Section 311 cannot be invoked to make amends to any case. For
instance, in the case of Nayan Rajan Guhagargar v. The State of Maharashtra (2021),
impugned order to recall the complainant to prove a piece of essential evidence (memory
card in this case) was challenged. It was contended that, as the stages of the recording
of evidence and arguments were over, the court could not take recourse to Section 311.
The Bombay High Court observed that the application under Section 311 cannot be
accepted where it is made to fill the lacunae in the prosecution evidence. A similar
observation was made in the case of the State Represented by the Deputy
Superintendent of Police vs. Tr. Seenivasagan (2021) where the Supreme Court of India
stated that the application under Section 311 must not be allowed to encourage a step
towards causing an unfair advantage to the opposite party.
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The wide scope of the application of this provision coupled with the discretionary power of
the judiciary results in the misuse of Section 311. The parties, by hook or by crook, strive
toward winning the case, and this provision provides a golden opportunity to make use of
the loopholes.
Several times, the judiciary acts with complete caution and prevents the misuse of this
provision. For instance, in the Sanjeev Singh case (2022) as all the evidence was already
taken and the Jharkhand High Court viewed no point in calling any more witnesses, the
application made under Section 311 was rejected, and the court averted the scope of abuse
of process of law.
In the case of Umar Mohammad v. State of Rajasthan (2007), an application was filed by
the prosecution witness stating that the five convicted persons are innocent. This
application was to be considered under Section 311. However, the Supreme Court rejected
it as there were doubts with regard to the veracity of the application. The court held that
the plea was made after 9 months of the completion of the deposition, which points to the
fact that the prosecution witness was won over.
In the recent case of the State Represented by the Deputy Superintendent of Police v. Tr.
Seenivasagan (2021), Justice Chandrachud stated the reasons upon which the application
under Section 311 should be refused. The Apex Court had observed that the new evidence
should not be used as a disguise for retrial, and the precondition is that the evidence which
is prayed to be admitted in the application is germane to the issue around which the case
revolves.
Misuse of this provision leads to delays in the dispensation of justice as the parties make
use of this provision to deviate the justice delivery mechanism by adopting unfair means. In
the case of State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016), the Delhi High Court
succinctly put forth that the plea under Section 311 should be bona fide. The essentiality of
the evidence is to be balanced against factors such as hardship to the witnesses or delay in
providing justice.
Conclusion
Section 311 gives the courts a carte blanche (i.e. full authority) by empowering them to call
or recall witnesses as per their discretion and without any limitations. There are no rigid
rules for the application of this provision. However, judicial pronouncements have played a
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stellar role in defining the ambit and restrictions of this section. Undoubtedly, the court has
the duty of fair play to arrive at a decision that leads to the dispensation of justice. As this
provision provides discretionary power to the court, it should be invoked with great caution
and circumspection. In the recent judgement in the case of Varsha Garg v. the State of
Madhya Pradesh & Ors. (2022), the Supreme Court of India expressed the basic parameters
for the application of Section 311 in the statement, which reads as “essentiality of the
evidence of the person who is to be examined coupled with the need for the just decision of
the case constitutes the touchstone which must guide the decision of the court.”
The judges can invoke this section on their own motion. Therefore, they owe a duty not to
use it arbitrarily. In the case of Rengaswami Naickar v. Muruga Naicker (1952), Justice
Ramaswami stated “a judge is not placed in the high position merely as a passive
instrument of the parties. He has a duty of his own, independent of them, and that duty is
to investigate the truth”.
Section 311 not only fulfils the constitutional goals of providing a mechanism of fair trial
and ensuring justice to the parties but it also guarantees the accused the human right of
getting a just decision from an unbiased system. However, certain reforms should be
introduced to avoid the misuse of this provision that causes delays in concluding the case.
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case of Raghunandan v. Union of India (2017), while discerning the relationship between
Section 311 and Section 311A, the Rajasthan High Court stated that considering the fact
that both the Sections are stipulated in the same chapter i.e. Chapter XXIV of the Code,
these are co-related provisions.
References
Kelkar, R.V. (2018) Criminal Procedure, Eastern Book Company, Lucknow.
https://primelegal.in/2021/07/14/section-311-of-crpc-cannot-be-used-to-fill-lacunae-in-
the-prosecution-evidence-bombay-high-court/
https://www.livelaw.in/top-stories/s-311-crpc-witness-cant-be-recalled-merely-because-
he-gave-a-different-statement-in-another-case-relating-to-same-incident-supreme-
court-202146
https://www.scconline.com/blog/post/2022/08/11/clearing-of-prosecution-evidence-not-
an-absolute-bar-from-re-examining-materials-witnesses-under-section-311-crpc-
supreme-
court/#:~:text=Crpc%3A%20Supreme%20Court-,Clearing%20of%20prosecution%20eviden
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+268 - SZ (Swaziland)
+1649 - TC (Turks And Caicos Islands)
+235 - TD (Chad)
+228 - TG (Togo)
+66 - TH (Thailand)
+992 - TJ (Tajikistan)
+690 - TK (Tokelau)
+670 - TL (Timor-leste)
+993 - TM (Turkmenistan)
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9/12/22, 5:37 PM Section 311 CrPC - iPleaders
+216 - TN (Tunisia)
+676 - TO (Tonga)
+90 - TR (Turkey)
+1868 - TT (Trinidad And Tobago)
+688 - TV (Tuvalu)
+886 - TW (Taiwan, Province Of China)
+255 - TZ (Tanzania, United Republic Of)
+380 - UA (Ukraine)
+256 - UG (Uganda)
+1 - US (United States)
+598 - UY (Uruguay)
+998 - UZ (Uzbekistan)
+39 - VA (Holy See (vatican City State))
+1784 - VC (Saint Vincent And The Grenadines)
+58 - VE (Venezuela)
+1284 - VG (Virgin Islands, British)
+1340 - VI (Virgin Islands, U.s.)
+84 - VN (Viet Nam)
+678 - VU (Vanuatu)
+681 - WF (Wallis And Futuna)
+685 - WS (Samoa)
+381 - XK (Kosovo)
+967 - YE (Yemen)
+262 - YT (Mayotte)
+27 - ZA (South Africa)
+260 - ZM (Zambia)
+263 - ZW (Zimbabwe)
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