Chandigarh Judicial Academy

Experts Corner
“LAW ON ADDITIONAL EVIDENCE UNDER SECTION 311 Cr.P.C”

Sh. Pradeep Mehta

Faculty Member, Chandigarh Judicial Academy cum Joint Director, Prosecution (Retd.)
 LAW ON ADDITIONAL EVIDENCE UNDER SECTION 311
Cr.P.C
SYNOPSIS

1. Introduction
2. Object of Section 311
3. Provision of Section 311 Cr.P.C.
4. Important Aspects of Section
i. At any stage of any inquiry, trial etc.
ii. Suo-moto Power of Court
iii. Fair Play and Good Sense :
iv. Wide Discretion but a Judicial Exercise
v. Section not Limited only to Benefit Accused
vi. Filling up of Lacuna in Prosecution Evidence
5. To Bring Best Available Evidence
6. Change of Defence Counsel
7. Who can be examined under section 311 Cr.P.C.
8. Application under section 311
9. Prejudice to accused :
10. Who can invoke the provisions of Sec.311
11. When application for additional evidence or resummoning u/s 311 can be
rejected
12. Section 311 of Cr.P.C and 165 of Evidence Act:
13. Section 311 of Cr.P.C and 138 of Evidence Act:
14. Considerations While Exercising Powers Under Sec.311 Cr.P.C.1973
15. Conclusion

Introduction

Genesis of this Provision is found in article 21 of the Constitution.

Hon‟ble Apex Court in many cases has held that fair trial is the main
object of criminal procedure and such fairness should not be hampered
or threatened in any manner. A trial primarily aimed at ascertaining truth
has to be fair to all concerned and includes the accused, the victims and
society at large. Each person has a right to be dealt with fairly in a

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criminal trial. Denial of a fair trial is as much injustice to the accused as
it is to the victim and society. Under our Constitution, as also the
international treaties and conventions, the right to get a fair trial is a
basic fundamental/human right. Accused has a right to defend himself
as a part of his human as also fundamental right as enshrined under
Article 21 of the Constitution of India. The right to defend oneself and for
that purpose to adduce evidence is recognized by the Parliament in
terms of sub-sec.(2) of Section 243 of the Code of Criminal
Procedure,1973.

"Fair trial" includes fair and proper opportunities allowed by law to

prove innocence. Adducing evidence in support of the defence is a
valuable right and denial of that right means denial of fair trial. It is
essential that rules of procedure designed to ensure justice should be
scrupulously followed, and courts should be jealous in seeing that there
is no breach of them. Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.) (2007) 2 SCC 258.

Supreme Court in case Asha Ranjan v. State of Bihar, 2016

SCC OnLine SC 988, decided on 15.02.2017 has laid down the
following principles regarding right to fair trial:

 The fair trial which is constitutionally protected as a substantial right

under Article 21 of the Constitution and also the statutory protection,
does invite for consideration a sense of conflict with the interest of
the victim(s) or the collective/interest of the society. When there is
an intra-conflict in respect of the same fundamental right from the
true perceptions, it is the obligation of the constitutional courts to
weigh the balance in certain circumstances, the interest of the
society as a whole, when it would promote and instill Rule of Law. A
fair trial is not what the accused wants in the name of fair trial. Fair
trial must soothe the ultimate justice which is sought individually, but

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 is subservient and would not prevail when fair trial requires transfer
of the criminal proceedings.
 A wrongful act of an individual cannot derogate the right of fair trial
as that interest is closer, especially in criminal trials, to the Rule of
Law. An accused cannot be permitted to jettison the basic
fundamentals of trial in the name of fair trial.
 The weighing of balance between the two perspectives in case of
fair trial would depend upon the facts and circumstances weighed
on the scale of constitutional norms and sensibility and larger public
interest.

In Zahira Habibullah Sheikh and Ors. v. State of Gujarat and

Ors., (2006) 3 SCC 374, the Supreme Court of India observed “each
one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of
a fair trial is as much injustice to the accused as it is to the victim and to
society.

From above it can be safely said that it is the duty of court to

ensure that such fairness is not hampered or threatened in any manner.
It is essential that the rules of procedure that have been designed to
ensure justice are scrupulously followed, and the court must be zealous
in ensuring that there is no breach of the same. It is cardinal rule in the
law of evidence that the best available evidence should be brought
before the court to prove a fact and points on issue. But it is left either
for the prosecution or for the defence to establish its respective cases
by adding the best available evidence and the court is empowered
under the provision of the code to compel either the prosecution witness
on their sides. Where a person is essentially a witness for the
prosecution and the prosecution should have cited him either the
charge sheeted or immediately afterwards but failed to do so, the failure
of the prosecution to call him as a witness cannot be made up by the

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court, exercising its power under this Section. Although the court can
examine a witness at the instance of prosecution or defence, still, when
the prosecution asks the court examine him because it could not
examine him, though it had intended to do so, that should be no ground
for the court to exercise its discretion under this section.

Object of Section 311

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. The section is a
general section which applies to all proceedings, enquiries and trials
under the Code and empowers Magistrate to issue summons to any
witness at any stage of such proceedings, trial or enquiry. In section
311 the significant expression that occurs is "at any stage of inquiry or
trial or other proceeding under this Code". It is, however, to be borne in
mind that whereas the section confers a very wide power on the Court
on summoning witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the necessity for
application of judicial mind. Zahira Habibullah Sheikh and another vs.
State of Gujarat and others (2006) 3 SCC 374

The object of the section 311 is to bring on record evidence not

only from the point of view of the accused and the prosecution but also
from the point of view of the orderly society. If a witness called by Court
gives evidence against the complainant he should be allowed an

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opportunity to cross-examine. The right to cross-examine a witness who
is called by a Court arises not under the provision of section 311, but
under the Evidence Act which gives a party the right to cross-examine a
witness who is not his own witness. Since a witness summoned by the
Court could not be termed a witness of any particular party, the Court
should give the right of cross-examination to the complainant. These
aspects were highlighted in Jagat Rai v. State of Maharashtra, AIR
1968 SC 178.

In Natasha Singh vs. CBI, 2013 SC it was held that the object of
this Section is to do justice not only from the point of view of the
accused and the prosecution but also from the point of view of an
orderly society. The court examines evidence under this Section neither
to help the accused nor to help the prosecution. The fundamental thing
to be seen is whether the court thinks it necessary in facts and
circumstances of the particular case before it.

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 judicially 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.

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 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.

In case Iddar & Ors. vs. Aabbida & Anr., 2007 (11) SCC 211
Hon‟ble Supreme Court has held that, 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. The section is a general section which applies to all
proceedings, enquiries and trials under the Code and empowers
Magistrate to issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the significant expression
that occurs is "at any stage of inquiry or trial or other proceeding under
this Code". It is, however, to be borne in mind that whereas the section
confers a very wide power on the Court on summoning witnesses, the
discretion conferred is to be exercised judiciously, as the wider the
power the greater is the necessity for application of judicial mind.

Provision of Section 311 Cr.P.C.

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
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his evidence appears to it to be essential to the just decision of the
case.

The reading of the section reveals that manifestly it is consisting

of two parts.

Part I - 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;

Part –II - ... 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.

Whereas the word used in the first part is “may”, which gives
purely discretionary authority to a criminal court and enables it at any
stage of an enquiry, trial or 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 steps if the new evidence appears to it essential
to the just decision of the case. The steps in this case are also as :

(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.

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 This is supplementary provision enabling, and in certain
circumstances imposing on the court the duty of examining a material
witness who would not be otherwise brought before it. Though the
second part of section is wholly discretionary but imposes an obligation
that Court shall summon and examine all persons whose evidence
appears to be essential to the just decision of the case.

It is couched in the widest possible terms and calls for no

limitation, either with regard to the stage at which the powers of the
court should be exercised, or with regard to the manner in which it
should be exercised. It is not only the prerogative but also the plain duty
of a court to examine such of those witnesses, as it considers
absolutely necessary, for doing justice between the state and the
subject. The court is to arrive at the truth by all lawful means and one of
such means is the examination of witnesses of its own accord when, for
certain obvious reasons, either party is not prepared to call witnesses
who are known to be in a position to speak important relevant facts.

The determinative factor to exercise the power under Section 311

of Cr.P.C. is whether the summoning / recalling of the witness is
essential to the just decision of the case. Power can be exercised even
at the stage of defence evidence. It is also not necessary that in the
prosecution evidence, only the witness whose statement under Section
161 was recorded, may be summoned.

It is a cardinal rule in the law of evidence that the best available

evidence should be brought before the Court. Sections 60, 64 and 91 of
the Indian Evidence Act, 1872 are based on this rule. The Court is not
empowered under the provisions of the Code to compel either the
prosecution or the defence to examine any particular witness or
witnesses on their side. This must be left to the parties. But in weighing
the evidence, the Court can take note of the fact that the best available
evidence has not been given, and can draw an adverse inference. The
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Court will often have to depend on intercepted allegations made by the
parties, or on inconclusive inference from facts elicited in the evidence.
In such cases, the Court has to act under the second part of the section.
Sometimes the examination of witnesses as directed by the Court may
result in what is thought to be "filling of loopholes". That is purely a
subsidiary factor and cannot be taken into account. 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 Court.

IMPORTANT ASPECTS OF SECTION

At any stage of any inquiry, trial etc.

The court can summon the witness under this section, at any
stage of the trial and such a witness has to be called as a prosecution
witness, if summoned on behalf of prosecution, likewise defence
witness if summoned on behalf of the accused and not as court
witness.

Even after both parties have closed their cases it is open to the
magistrate to summon any person as a witness if his evidence appears
to him to be essential to the just decision of the case. The court can
summon the witness under section 311, at any stage of the trial.

The court can summon the witness under this Section, at any
stage of the trial and such a witness has to be called as prosecution
witness, if summoned on behalf of prosecution and defence witness if
summoned on behalf of the accused and not as court witness. Even
after both parties have closed their evidences it is open to the
magistrate to summon any person as a witness if his evidence appears
to him to be essential to the just decision of the case. The court can
summon the witness under Section 311, at any stage of trial. Once it is

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found that the evidence is essential for the just decision of the case, the
witness can be recalled at any time before pronouncement of the
judgment, the time factor would not come in the way. A material
witness can be summoned even during final arguments, even where
the case is fixed for judgment , while writing a judgment if the court
finds that the examination of the witness is necessary for the just
decision of the case as held in “Chootey Badri Prasad vs. State of
U.P. 2006 CrLJ 711(713).”

In P.Chhaganlal Daga vs. M.Sanjay Shaw, 2004 SCC (Cri)

183, the Hon'ble Apex Court has held that though argument was
concluded and the case was posted for judgment, since the
complainant had moved the trial court for reception of additional
materials, in exercise of powers under Section 311 of the Code of
Criminal Procedure, as the materials were necessary for a just and
proper decision in that case, it was proper to allow the petition to meet
the ends of justice. The Hon'ble Supreme Court held that there is no
error on the part of the trial court in allowing the petition filed
under Section 311 Cr.P.C. In the judgment referred to, the Hon'ble
Supreme Court held as follows :

"...The only factor which should govern the court in exercise of

powers under Section 311 should be whether such material is
essential for the just decision of the case. Even a reading
of Section 311 of the Code would show that Parliament has
studded the said provision lavishly with the word "any" at different
places. This would also indicate the widest range of power
conferred on the court in that matter..."

In S.R. Sinha vs. Mrinal Sengupta, 2001 SCC (Cri) 1581, the
Hon'ble Apex Court has held that there is no bar against the

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examination of a witness, even at a stage subsequent to the recording
of a statement of the accused and it is held as follows :

"It is difficult to appreciate the approach of the High Court in the

revision application for the reason that there is no bar against the
examination of a witness even at a stage subsequent to the
recording of the statement of the accused in exercise of power
under Section 311 of the Criminal Procedure Code..."

“...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 "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.” Manju Devi v. State of Rajasthan, (2019) 6 SCC
203.

Suo-moto Power of Court :

If the conditions of Section 311 are satisfied, the Court can call a
witness not only on the application of either part, but on its own motion.
The determinative factor is whether the summoning / recalling of the
witnesses 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 exercise of
the power of the court to summon a witness under the Section merely
because the evidence supports the case of the prosecution and not that

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of the accused. The section is a general section which applies to all
proceedings, inquiry and trials under the court and empowers the
Magistrate to issue any witness and any such of proceeding, trial or
inquiry. ?

"It would appear that in our criminal jurisdiction, statutory law

confers a power in absolute terms to be exercised at any stage of
the trial to summon a witness or examine one present in Court or
to recall a witness already examined, and makes this the duty and
obligation of the Court provided the just decision of the case
demands it. In other words, where the Court exercises the power
under the second part, the inquiry cannot be whether the accused
has brought anything suddenly or unexpectedly but whether the
Court is right in thinking that the new evidence is necessary by it
for a just decision of the case." Jamatraj Kewalji Govani v. State
of Maharashtra, AIR 1968 SC 178.

Fair Play and Good Sense :

The jurisdiction of the court must obviously be dictated by

exigency of the situation, fair play and good sense appear to be the only
sage guides and that only the requirements of justice command the
examination of any person which would depend to the facts and
circumstances of each case. It was further held that "It is obligatory on
the part of the court to summon the witness in case his evidence
appears to be essential for just decision of the case. Such power may
be exercised at any time. However, the power is circumscribed by the
principle underlying the section, that is, the evidence to be obtained
must be essential for just decision of the case ". - Mohan Lal Shamji
Soni vs. Union of India, AIR 1991 SC 1346.

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 Where 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.

Wide Discretion but a Judicial Exercise :

The very usage of the words such as any court at any stage or
any inquiry trial or other proceedings, any person and any such person
clearly spells out that this section is expressed in the widest possible
terms and do not limit the discretion of the court in any way. The second
part of the section does not allow for any discretion but it binds and
compels the court to take steps if the fresh evidence to be obtained in
essential to the just decision of the case. - Mohan Lal Shamji Soni vs.
Union of India, AIR 1991 SC 1346.

There is no limitation on the power of the court arising from the

stage to which the trial may be reached, provided the court in bonafide
of the opinion that for the just decision of the case, the step must be
taken. This section confers a vide discretion to the court to act as the
exigencies of justice require, the discretion conferred by the court has to
be exercised judicially. Jamatraj Kewalji Govani v. State of
Maharashtra, AIR 1968 SC 178.

In case, Vijay Kumar vs. State of U.P. & Anr., 2011 (8) SCC
136, the apex court has held that though Section 311 confers vast
discretion upon the court and is expressed in the widest possible terms,
the discretionary power under the said section can be invoked only for
the ends of justice. Discretionary power should be exercised
consistently with the provisions of the Code and the principles of
criminal law. The discretionary power conferred under Section 311 has
to be exercised judicially for reasons stated by the Court and not
arbitrarily or capriciously.

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 In case of V.N. Patil vs. K. Niranjan Kumar and Ors., (2021) 3
SCC 661, the aim of every court is to discover the truth. Section 311
Cr.P.C. is one of many such provisions which strengthen the arms of a
court in its effort to unearth the truth by procedure sanctioned by law. At
the same time, the discretionary power vested under section 311
Cr.P.C. has to be exercised judiciously for strong and valid reasons and
with caution and circumspection to meet the ends of justice.

In Swapan Kumar Chatterjee vs. Central Bureau of

Investigation, 2019 (14) SCC 328, the apex court has held that the first
part of this section which is permissive gives purely discretionary
authority to the criminal court and enables it at any stage of inquiry, trial
or other proceedings under the Code to act in one of the 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.

The second part, which is mandatory, imposes an obligation on the

court :

(i) to summon and examine or

(ii) to recall and re-examine any such person if his evidence to

be essential to be just decision of the case.

The Division Bench of Hon'ble Punjab and Haryana High Court, in

Sukhdev Singh vs. State of Punjab, 1981 Cr. LJ 2201 (P&H) (DB)
held that -

"The discretion is required to be exercised by the Court keeping

in view the just decision of the case unmindful of the fact whether

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 any party before it gains or loses from the exercise of such
discretion under this section. There is no doubt that object of the
section is not to enable any one or the other party to fill up the
gaps of its case. The section is not to be used to enable it to
repair the lacuna. The sole criterion in such a case should be
whether the exercise of power under section is necessary in the
interest of justice. While exercising this discretion the court has to
keep in its mind the well known principle of law that the order
should not operate as a rebuttal of the case set up by the defence
after the prosecution case is closed. The use of this section
cannot be limited only to something arising eximporviso which no
human agency could see. The mere fact that evidence is
permitted to be taken after the entire prosecution case is over is
in itself in excess of the powers of the Court. No hard and fast
rules can be prescribed as to when and at what stage this
discretion should be exercised. The anxiety for justice is
paramount an should be kept in view. The Court should be
unmindful of the fact of the use of the discretion in favour or
against any party. The principle that such evidence should not
demolish the case set up by the accused in his defence, if he has
done so should be present in the mind of the judge at the time
when he takes a decision. The powers of the Court under Section
311 which are very wide cannot be limited. The discretion can be
exercised by the Court at any stage of the case, but on justifiable
grounds". (emphasis added)

The Hon'ble Supreme Court in Zahira Habibulla H. Sheikh Vs.

State of Gujarat (2004) 4 SCC 158: 2004 SCC (Cri) 999: 2004 Cr. U.
2050 held that -

"though the discretion given to the Court is very wide, the very
width requires a corresponding caution, that the discretionary

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 powers should be invoked as the exigencies of justice require,
and exercised judicially with circumspection and consistently
with the provisions of the Code of Criminal Procedure, 1973.
Section 311 does not confer on any party any right to examine,
cross-examine and re-examine any witness. This is a power
given to the Court not to be merely exercised at .the bidding of
any one party/person but the powers conferred and discretion
vested are to prevent any irretrievable or immeasurable damage
to the cause of society, public interest and miscarriage of
justice. It is not that the power is to be exercised in a routine
manner, but being an exception to the ordinary rule of disposal
of appeal on the basis of records received, in exceptional cases
or extraordinary situations the Court can neither feel powerless
nor abdicate its duty to arrive at the truth and satisfy the ends of
justice". (emphasis added)

Section not Limited only to Benefit Accused

A witness was examined and cross-examined before a

Magistrate. Subsequently, he gave inconsistent evidence before a
Juvenile Court where one of the accused was being tried. An
application was made before the Magistrate to re-summon him for cross
examination about his statements in the Juvenile Court. The Court did
not allow the application. The Court said that the section is not limited
only to the benefit of the accused. The determinative factor for exercise
of the power is to see whether it is essential to a just decision in the
case. (Hanuman Ram v. State of Rajasthan, AIR 2009 SC 69)

Apex court in V.N. Patil vs. K. Niranjan Kumar and Ors. (2021)
3 SCC 661, has held that the aim of every court is to discover the truth.
Section 311 Cr.P.C. is one of many such provisions which strengthen
the arms of a court in its effort to unearth the truth by procedure
sanctioned by law. At the same time, the discretionary power vested
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under section 311 Cr.P.C. has to be exercised judiciously for strong and
valid reasons and with caution and circumspection to meet the ends of
justice.

Filling up of Lacuna in Prosecution Evidence

The conventional concept is that, the Court should not do so. But
then, what is meant by lacuna in a prosecution case, has to be
understood before deciding the said question one way or the other.

Lacuna in the prosecution must be understood as the inherent

weakness or a latent wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused in the trial of the
case, but an over sight in the management of the prosecution cannot be
treated as irreparable lacuna. No party in a trial can be foreclosed from
correcting errors. 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.
After all, function of the criminal court is administration of criminal justice
and not to count errors committed by the parties or to find out and
declare who among the parties performed better. - Rajendra Prasad vs
Narcotic Cell through Its Officer, AIR 1999 SC 2292. The Court
observed that the court while exercising its power under Section 311 of
the Code shall not use such power `for filling up the lacuna left by the
prosecution.' It is a common experience in criminal courts that defence
counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the Evidence
Act by saying that the Court could not fill the lacuna in the prosecution
case'.

A lacuna in prosecution is not to be equated with the fallout of an

oversight committed by a public prosecutor during trial, either in
producing relevant materials or in eliciting relevant answers from

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witnesses. The adage `to err is human' is the recognition-of the
possibility of making mistakes to which humans are proved. A corollary
of any such latches or mistakes during the conducting of a case cannot
be understood as the lacuna which a court cannot fill up.- Mohanlal
Shamji Sani v. Union of India, AIR (1991) SC 1346

In U.T. Of Dadra & Haveli & Anr. vs. Fatehsinh Mohansinh

Chauhan (2006) 7 SCC 529, wherein the order passed by the learned
Sessions Judge was challenged in revision before the High Court and
one of the grounds raised was that the examination of fresh evidence
was tantamount to making good lacunae in the prosecution case and
was, therefore, not justified under Section 540 (of the old Code). It was
held that the Section is manifestly in two parts; the first part gives purely
discretionary authority to the criminal Court; on the other hand, the
second part is mandatory. 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.
Dealing with the argument that examination of fresh evidence amounted
to filling in lacuna in the prosecution case, it was held:-

"It is a common experience in criminal courts that defence

counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the
Evidence Act, 1872 by saying that the court could not
"fill the lacuna in the prosecution case".

A lacuna in the prosecution is not to be equated with the

fallout of an oversight committed by a Public Prosecutor during
trial, either in producing relevant materials or in eliciting relevant
answers from witnesses. The adage "to err is human" is the

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 recognition of the possibility of making mistakes to which humans
are prone. A corollary of any such laches or mistakes during the
conducting of a case cannot be understood as a lacuna which a
court cannot fill up.

A conspectus of authorities referred to above would show

that the principle is well settled that the exercise of power
under Section 311 Cr.P.C. should be resorted to only with the
object of finding out the truth or obtaining proper proof of such
facts which lead to a just and correct decision of the case, this
being the primary duty of a criminal court. Calling a witness or re-
examining a witness already examined for the purpose of finding
out the truth in order to enable the Court to arrive at a just
decision of the case cannot be dubbed as "filling in
a lacuna in 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.”

In the case in hand the respondent has raised a plea of alibi that
at the time of the alleged incident he was present in the chamber of the
Collector, Dadra & Nagar Haveli, Silvassa, who had called a meeting. In
fact, the respondent has led evidence on the said point by examining
DW.1 and DW.2. The evidence of the then Collector, Dadra and Nagar
Haveli might as well support the defence taken by the respondent. In
such circumstances if the learned Sessions Judge was of the opinion
that in order to find out the truth, the evidence of the Collector was
necessary, no exception can be taken to the course adopted by him. It
was for the learned Sessions Judge to decide whether for just and fair
decision of the case, the evidence of the Collector is necessary or not
and he having come to a conclusion that evidence of the Collector was
necessary for just and fair decision of the case, the order passed by him

19
could not have been set aside by the High Court on the ground that it
would amount to filling in lacuna in the prosecution case. We are clearly
of the opinion that in the facts and circumstances of the case, the
examination of the then Collector, Dadra and Nagar Haveli cannot be
termed as filling in lacuna in the prosecution case. The learned
Sessions Judge rightly observed that the evidence of the Collector will
not cause any prejudice to the respondent as he had himself pleaded
alibi and had led evidence to substantiate the same. We are, therefore,
of the opinion that the High Court clearly erred in setting aside the order
passed by the learned Sessions Judge.

The Hon'ble Supreme Court in Rajendra Prasad vs. The

Narcotic Cell, held that-

A lacuna in prosecution is not to be equated with the fallout of an

oversight committed by a public prosecutor during trial, either in
producing relevant materials or in eliciting relevant answers from
witnesses. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the prosecution
case. The advantage of it should normally to go the accused, but an
oversight in the management of the prosecution cannot be termed as
irreparable lacuna. No party in a trial can be fore-closed from correcting
errors".

To Bring Best Available Evidence :

It is cardinal rule in the law of evidence that the best available

evidence should be brought before the court to prove a fact and points
on issue. But it is left either for the prosecution or for the defence to
establish its respective cases by adducting the best available evidence
and the court is not empowered under the provision of the court to
compel either the prosecution or the defence to examine any particular
witness or witnesses on their sides. Where a person is essential a

20
witness for the prosecution and the prosecution should have cited him
either the charge sheeted or immediately afterwards but failed to do so,
the failure of the prosecution to call him as a witness cannot be made
up by the court exercising its power under this section. Although the
court can examine a witness at the instance of prosecution or defence,
still, when the prosecution asks the court to examine him because it
could not examine him, though it had intended to do so, that should be
no ground for the court to exercise its discretion under this section.

In Mohanlal Shamji Sani v. Union of India, AIR (1991) SC 1346

it was observed that it is a cardinal rule in the law of evidence that the
best available evidence should be brought before the Court to prove a
fact or the points in issue. But it is left either for the prosecution or for
the defence to establish its respective case by adducing the best
available evidence and the Court is not empowered under the
provisions of the Code to compel either the prosecution or the defence
to examine any particular witness or witnesses on their sides. It is the
duty of a Court not only to do justice but also to ensure that justice is
being done. It was further held that the second part of the Section does
not allow for any discretion but it binds and compels the Court to take
any of the aforementioned two steps if the fresh evidence to be
obtained is essential to the just decision of the case. It was emphasized
that power is circumscribed by the principle that underlines Section
311 Cr.P.C., namely, evidence to be obtained should appear to the
court essential to a just decision of the case by getting at the truth by all
lawful means. Further, that the power must be used judicially and not
capriciously or arbitrarily. It was further observed that evidence should
not be received as a disguise for a retrial or to change the nature of the
case against either of the parties and the discretion of the Court must
obviously be dictated by exigency of the situation and fair play and good
sense appear to be the safe guides and that only the requirement of

21
justice command the examination of any person which would depend on
the facts and circumstances of each case.

It is well settled that the power conferred under Section

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 great caution and circumspection. The court has vide
power under this Section to even recall witnesses for re-examination or
further examination, necessary in the interest of justice, but the same
has to be exercised after taking into consideration the facts and
circumstances of each case. The power under this provision shall not
be exercised if the court is of the view that the application has been filed
as an abuse of the process of law.

The supreme court has held that court has inherent power to
recall witness if it is satisfied that he is prepared to give evidence which
is materially different from what he had given at the trial.- Hussain Umar
v. Dilipsinghji, AIR 1970 SC 45.

May and Shall:

When the legislature has used the word „may‟ and „shall‟ in the
same provision, it means the legislature did not leave it to the discretion
of the court to interpret both the expression. It is clear that word shall in
the second clause is mandatory and imperative in nature and character
and the word may in the first clause is directory. The section 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 it at any stage of
an enquiry, trial or proceeding under the Code : (a) to summon any one
as a witness, or (b) to examine any person present in Court, or (c) to
recall and re-examine any person whose evidence has already been

22
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. This is
a supplementary provision enabling, and in certain circumstances
imposing on the Court the duty of examining a material witness who
would not be otherwise brought before it. It is couched in the widest
possible terms and calls for no limitation, either with regard to the stage
at which the powers of the Court should be exercised, or with regard to
the manner in which it should be exercised. It is not only the prerogative
but also the plain duty of a Court to examine such of those witnesses as
it considers absolutely necessary for doing justice between the State
and the subject. There is a duty cast upon the Court to arrive at the truth
by all lawful means and one of such means is the examination of
witnesses of its own accord when for certain obvious reasons either
party is not prepared to call witnesses who are known to be in a position
to speak important relevant facts. Iddar & Ors vs. Aabida &
Anr, 2007(11) SCC 211.

It was further held that the Section is wholly discretionary. The

second part of it imposes upon the Magistrate an obligation: it is, that
the Court shall summon and examine all persons whose evidence
appears to be essential to the just decision of the case. It is a cardinal
rule in the law of evidence that the best available evidence should be
brought before the Court. Sections 60, 64 and 91 of the Indian Evidence
Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is
not empowered under the provisions of the Code to compel either the
prosecution or the defence to examine any particular witness or
witnesses on their side. This must be left to the parties. But in weighing
the evidence, the Court can take note of the fact that the best available
evidence has not been given, and can draw an adverse inference. The
Court will often have to depend on intercepted allegations made by the

23
parties, or on inconclusive inference from facts elicited in the evidence.
In such cases, the Court has to act under the second part of the section.
Sometimes the examination of witnesses as directed by the Court may
result in what is thought to be "filling of loopholes". That is purely a
subsidiary factor and cannot be taken into account. 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.

Change of Defence Counsel

In Hoffman Andreas vs. Inspector of Customs, Amritsar,

(2000) 10 SCC 430, he counsel who was conducting the case was ill
and died during the progress of the trial. The new counsel sought recall
on the ground that the witnesses could not be cross-examined on
account of illness of the counsel. This prayer was allowed in peculiar
circumstances with the observation that normally a closed trial could not
be reopened but illness and death of the counsel was in the facts and
circumstances considered to be a valid ground for recall of witnesses. It
was observed :

“Normally, at this late stage, we would be disinclined to open up a

closed trial once again. But we are persuaded to consider it in this
case on account of the unfortunate development that took place
during trial i.e. the passing away of the defence counsel midway
of the trial. The counsel who was engaged for defending the
appellant had cross-examined the witnesses but he could not
complete the trial because of his death. When the new counsel
took up the matter he would certainly be under the disadvantage
that he could not ascertain from the erstwhile counsel as to the
scheme of the defence strategy which the predeceased advocate
had in mind or as to why he had not put further questions on
certain aspects. In such circumstances, if the new counsel

24
 thought to have the material witnesses further examined the
Court could adopt latitude and a liberal view in the interest of
justice, particularly when the Court has unbridled powers in the
matter as enshrined in Section 311 of the Code. After all the trial
is basically for the prisoners and courts should afford the
opportunity to them in the fairest manner possible.”

The above observations cannot be read as laying down any

inflexible rule to routinely permit a recall on the ground that cross-
examination was not proper for reasons attributable to a counsel. While
advancement of justice remains the prime object of law, it cannot be
understood that recall can be allowed for the asking or reasons related
to mere convenience. It has normally to be presumed that the counsel
conducting a case is competent particularly when a counsel is
appointed by choice of a litigant. Taken to its logical end, the principle
that a retrial must follow on every change of a counsel, can have
serious consequences on conduct of trials and the criminal justice
system. Witnesses cannot be expected to face the hardship of
appearing in court repeatedly, particularly in sensitive cases such as the
present one. It can result in undue hardship for victims, especially so, of
heinous crimes, if they are required to repeatedly appear in court to face
cross-examination.

In State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SC 3820,

Hon‟ble Supreme Court held:

“we do not think that the court should dislodge the Counsel and
go on searching for some other counsel to the liking of the
accused. The right to legal aid cannot be taken thus far.”

While relying upon the ruling in the case Strickland‟s (supra), the
Hon‟ble Supreme Court observed that scrutiny of performance of a
counsel who has conducted trial should be highly deferential.
25
 In State of Haryana vs. Ram Mehar and others, 2016 (4) RCR
(Criminal) 154, the matter in question before the Hon'ble Supreme
Court was that whether an application for recall of some prosecution
witness for cross-examination moved by the accused on the grounds
that counsel engaged earlier by defence had not put certain questions
and had not given certain suggestion be allowed. The Hon'ble Supreme
Court categorically held that such kind of application cannot be allowed
because the accused persons had engaged counsel of their choice. In
such a situation recalling of a witness indubitably cannot form the
foundation. It was further held that it has normally to be presumed that
counsel conducting a case is competent particularly when a counsel is
appointed by choice of a litigant.

Who can be examined under section 311 Cr.P.C.

Any person whose evidence can be important for the just decision
of the court can be examined as witness in the case may be from the
prosecution side or from defence side. If both are not interested in
examining any such person he can be examined by the court under the
second part of the section 311. There is only one embargo that accused
cannot be examined as a witness except when he so chooses under
section 315 of Cr.P.C.

In State of Madhya Pardesh vs. Badri Yadav and Anr. 2006 (2)
RCR (Criminal) 468, the matter of question before Hon'ble top Court
was that whether a prosecution witness can be summoned as a defence
witness on request of accused. In this case a person appeared as
prosecution witness and supported the prosecution. Later on, said
prosecution witness appeared as defence witness and stated that his
earlier deposition was false. The Hon'ble Top Court categorically held
that a person already examined as prosecution witness cannot be

26
allowed to become as defence witness. Subsequent statement was
concocted and cannot be believed.

In Iddar and Ors Vs. Abida, 2007 (3) RCR (Criminal) 909, the
Hon'ble Apex Court categorically held that the Court has power under
Section 311 Cr.P.C. to summon and examine all persons whose
evidence appears to be essential to the just decision of the case. Court
is not empowered to compel either the prosecution or the defence to
examine any other particular witnesses on their side. This must be left to
the parties.

In Rohtash Kumar vs. State of Haryana, 2013 (3) RCR

(Criminal) 355, the matter in question before the Hon'ble Apex Court
was whether a witness cited by prosecution but not examined, can
accused examine the cited witness in his defence. The Hon'ble Apex
Court categorically held that a witness cited by the prosecution but not
examined the accused can examine the cited witness in his defence but
not the witnesses examined, by prosecution. The Hon'ble Apex Court
further held that the prosecution is not bound to examine all the cited
witnesses, and it can drop witnesses to avoid multiplicity or plurality of
witnesses. The accused can also examine the cited, but not examined
witnesses, if he so desires, in his defence. It is the discretion of the
prosecutor to tender the witnesses to prove the case of the prosecution
and "the court will not interfere with the exercise of that discretion unless,
perhaps, it can be shown that the prosecution has been influenced by
some oblique motive." In an extra-ordinary situation, if the court comes
to the conclusion that a material witness has been withheld, it can draw
an adverse inference against the prosecution, as has been provided
under Section 114 of the Evidence Act. Undoubtedly, the public
prosecutor must not take the liberty to "pick and choose" his witnesses,
as he must be fair to the court, and therefore, to the truth. In a given

27
case, the Court can always examine a witness as a court witness, if it is
so warranted in the interests of justice. In fact, the evidence of the
witnesses, must be tested on the touchstone of reliability, credibility and
trustworthiness. If the court finds the same to be untruthful, there is no
legal bar for it to discard the same.

Application under section 311

As the first part of the section which states that the court may
summon any person as a witness is primarily to be implemented on the
application of any of the party to the case. When the prosecution apply
for the summoning of a witness he will be called a prosecution witness
but when by defence it will be a defence witness. Where a person who
is stranger to the case applied for calling a witness it was held that a
stranger cannot not move an application under section 311 of Cr.P.C.
However, father of a victim in a dowry case when supported by the
prosecution has been held to be a proper application under this
section.

a) Contents of application : Application should not be in a

vague language which precludes the trial court as to examine
as to what is purpose of summoning the witness. The
necessity to examine witness or appraisal of material called for
is essential for just decision of the case must be included in
the application. Where this was not mentioned and the
application was rejected by the trial court to summon a witness
afresh Hon‟ble Punjab and Haryana High Court in case
Narinder Kumar and Anr. Vs. State of Haryana and Anr. In
Crl. Misc. No. M-16124 of 2011 (O&M) decided on
16.08.2011 has upheld the decision of the trial court.
b) Successive Application : Successive applications for recall
of a witness under this Section 311 Cr.P.C. are not

28
 maintainable, however, in the changed circumstances the
earlier of application is not barred for summoning the witness
again under this section, when the same is found necessary
for the ends of justice.

Prejudice to accused :

Where summoning of the witness would cause prejudice to the

accused, the witness cannot be summoned under this section. It has
been held by the Hon'ble Supreme Court in P. Sanjeeva Rao versus
State of A.P., AIR 2012 SC 2242 that refusal to recall the witness
would cause prejudice to the accused and would amount to
condemning the accused without giving sufficient opportunity to
challenge the correctness of the prosecution version and the credibility
of the witnesses.

Where summoning of the witness would cause prejudice to the

accused, the witness cannot be summoned under section 311 as held
in Cheeku Singh vs. State of Rajasthan, 1998 Cr.LJ 950 (RAJ.)

Who can invoke the provisions of Sec.311

Application for summoning any witness can be exercised by

either party and the court can exercise it suo moto.

In Hari Singh vs. State of Haryana 2002 (3) Crim 333 (336)
Hon‟ble Pb & HC held that where application of summoning a witness is
filed neither by APP nor by the complainant but by a third party who has
no locus standi to apply, the same would have to be rejected.

In Sidhartha Vashisht @ Manu Sharma v. State NCT of Delhi

on 19th April, 2010, the Hon‟ble Supreme Court observed that it is the
duty of the court is to arrive at the truth and subserve the ends of
justice. Section 311 of the Code does not confer any party any right to

29
examine, cross-examine and re-examine any witness. This is a power
given to the court not to be merely exercised at the bidding of any one
party/ person but the powers conferred and discretion vested are to
prevent any irretrievable or immeasurable damage to the cause of
society, public interest and miscarriage of justice. Recourse may be had
by courts to power under this section only for the purpose of discovering
relevant facts or obtaining proper proof of such facts as are necessary
to arrive at a justice decision in the case.

In Rajeswar Prasad Misra v. State of W.B. AIR 1965 SC 1887,

the Hon‟ble Supreme Court dealt with the ample power and jurisdiction
vested in the court, with respect to taking additional evidence, and
observed, that it may not be possible for the legislature to foresee all
situations and possibilities and therefore, the Court must examine the
facts and circumstances of each case before it, and if it comes 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,
and if such an action on its part is justified, then the Court must exercise
such power. The Court held as under:

“Additional evidence may be necessary for a variety of reasons

which it is hardly proper to construe one section with the aid of
observations made to do what the legislature has refrained from
doing, namely, to control discretion of the appellate court to
certain stated circumstances. It may, however, be said that
additional evidence must be necessary not because it would be
impossible to pronounce judgment but because there would be
failure of justice without it. The power must be exercised
sparingly and only in suitable cases. Once such action is justified,
there is no restriction on the kind of evidence which may be
received. It may be formal or substantial. ..."

30
When application for additional evidence or resummoning u/s 311
can be rejected

(a) Section not limited to benefit accused only – a witness was

examined and cross examined before a magistrate
subsequently, he gave inconsistent evidence before a juvenile
court where one of the accused was being tried. An application
was made before the magistrate to re-summon him for cross
examination about his statements in the juvenile court. The
court did not allow the application. The court said that the
section is not limited only to the benefit of accused. The
determinative factor for exercise of the power is to see whether
it is essential to a just decision in the case. (Hanuman Ram vs.
State of Rajasthan, AIR 2009 SC 69

(b) Not to fill up lacuna – this section 311 gives wide discretion to
the courts. It empowers the court at any stage of an inquiry, trial
or other proceedings to summon any person as witness or
examine any person in attendance or recall and re-examine, a
witness already examined. The words “essential to the just
decision of the case” are the key words. But the exercise of this
power cannot be arbitrary. The court should not permit the
prosecution to fill up the lacuna or it is for a just decision or a
case depends on facts and circumstances of each case.
Mannan SK vs. State of West Bengal, IR 2014 SC 2950.

(c) Not allowed to abuse of the process of law – it should not be

used as abuse of the process of law where prosecution
evidence was over, and the application by the accused for
recalling all the PWs for further cross-examination was nothing
but abuse of the process of law. Such application is to be
rejected. Popat Lal Jethabai Shah vs. State of Maharashtra,
2002 CrLJ 794.

31
 (d) Explaining the delay in lodging of FIR – it is not proper exercise
of discretion of court to allow evidence explaining the delay in
the lodging of FIR to be recorded after the accused had closed
their defence evidence and more so, when the proposed
witness was already listed in the list of witnesses filed by the
prosecution but given up by the public prosecutor. Piara Singh
vs. State of Punjab, 1978 CrLJ 771 (P&H HC)

(e) Recalling investigating officer after the closure of the evidence

to produce or prove the disclosure statements was held not to
be essential for a just decision of the case.

(f) Where prosecution evidence has closed already long back in

the instant case 5 years before the reasons for non-examination
of witness earlier is not satisfactory, the summoning of witness
under Section 311 at belated stage would cause court prejudice
to the accused and same cannot be allowed.
(g) The accused cannot be summon / examine the complainant
counsel in defence, refusal would not be deemed denial of
opportunity to the accused to lead evidence in defence.

Section 311 of Cr.P.C and 165 of Evidence Act:

The provisions of section 165 and this section confers jurisdiction

on the court to act in the aid of justice, they are said to be
complementary to each other.

In Himanshu Singh Sabharwal v. State of M.P. and Ors., AIR

2008 SC 1943, the apex court observed that if fair trial envisaged under
the Code is not imparted to the parties and court has reasons to believe
that prosecuting agency or prosecutor is not acting in the requisite
manner the court can exercise its power under section 311 of the Code
or under section 165 of the Indian Evidence Act, 1872 to call in for the
32
material witness and procure the relevant documents so as to sub serve
the cause of justice.

In “Meera Devi & Others v. Jitender & Others” (2012) 5 SCC

777, it was held that the highest ideal of the court must be nothing but
the quest of truth. It stated that Section 165 of the Indian Evidence Act
provide the judge the power put in order any question to the witness or
the party to the case irrespective of form and relevancy of facts if the
judge decides for finding out the truth.

It states about the power of judge to put questions or order

productions. It provides that “The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he pleases, in
any form, at any time, of any witness, or of the parties about any fact
relevant of irrelevant; and may order the production of any document or
thing; and neither the parties nor their agents shall be entitled to make
any objection to any such question or order, nor, without the leave of
the Court, to cross-examine any witness upon any answer give in reply
to any such question:”

“Provided that the judgment must be based upon facts declared

by this Act to be relevant, and duly proved.”

“Provided also that this section shall not authorize any Judge to
compel any witness to answer any question or to produce any
document which such witness would be entitled to refuse to
answer or produce under sections 121 to 131, both inclusive , if
the question were asked or the document were called for by the
adverse party; nor shall the Judge ask any question which it
would be improper for any other person to ask under section 148
or 149; nor shall he dispense with primary evidence of any
document, except in the cases herein before excepted.”

33
 Section 165 has provided extensive power for the judges on
interest stating administration of justice. It provides that the judge can
question the witness or the party at any questionable if he thinks that
this is necessary in order to know the truth about the case or to make
the case clearer. This section provides the judge the following powers:

1. To ask any question to the witness or the party to the case in

any form and about any fact whether they are relevant or not.

2. To able to order for production of document or thing which is

related to the case.

This section states that when the exercising of power is being

done by the court then a party or his agent can provide for any
objection. And it further states that the witness cannot be cross
examined by any party on the answer given by them. If a judge asks a
question then no party can examine or re-examine or recall any witness
on the grounds of interest of justice without the permission of the court.
The judge has an extensive power of participating in the trial for to bring
out the truth in a case. The power provided under section 165 of the
evidence act compliments the power which is given under section 311
of Criminal Procedure Code,1973.
It was held by the Hon‟ble Supreme Court that it was not irregular
to put questions to bring out the truth in a case by the trial court. But,
when the witness is rebuked and threatened to be prosecuted for
perjury by the judge if their statements re- changed then, the court held
that this exceeded the power given to the judge under this section. A
judge under this section can only exercise his power for obtaining proof
and in discovery of fact which are relevant to the case.

In Rajendra Prasad vs. Narcotic, 1999 (6) SCC 110, the Hon'ble
Apex Court has held as follows :

34
 "It is a common experience in criminal courts that defence
counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the
Evidence Act, 1872 by saying that the court could not 'fill the
lacuna in the prosecution case". A lacuna in the prosecution is not
to be equated with the fallout of an oversight committed by a
Public Prosecutor during trial, either in producing relevant
materials or in eliciting relevant answers from witnesses. The
adage 'to err is human' is the recognition of the possibility of
making mistakes to which humans are prone. A corollary of any
such laches or mistakes during the conducting of a case cannot
be understood as a lacuna which a court cannot fill up."

Section 311 of Cr.P.C and 138 of Evidence Act:

The provisions of section 138 and section 311 of Cr.P.C. are not
contradictory to each other but complementing the object of each other.

Section 138 of the Evidence Act, prescribed the order of

examination of a witness in the Court. Order of re-examination is also
prescribed calling for such a witness so desired-for such re-
examination. Therefore, a reading of Section 311 Criminal Procedure
Code and Section 138 Evidence Act, insofar as it comes to the question
of a criminal trial, the order of re-examination at the desire of any
person under Section 138, will have to necessarily be in consonance
with the prescription contained in Section 311 Criminal Procedure Code.
It is, therefore, imperative that the invocation of Section 311 Criminal
Procedure Code and its application in a particular case can be ordered
by the Court, only by bearing in mind the object and purpose of the said
provision, namely, for achieving a just decision of the case. Section
138 of the Evidence Act, prescribed the order of examination of a

35
witness in the court. The order of re-examination is also prescribed
calling for such a witness so desired for such re- examination.
Therefore, a reading of Section 311 Cr.P.C and Section 138 Evidence
Act, insofar as it comes to the question of a criminal trial, the order of re-
examination at the desire of any person under Section 138, will have to
necessarily be in consonance with the prescription contained in Section
311 Cr.P.C. It is, therefore, imperative that the invocation of Section
311 Cr.P.C and its application in a particular case can be ordered by the
court, only by bearing in mind the object and purport of the said
provision, namely, for achieving a just decision of the case as noted by
us earlier. The power vested under the said provision is made available
to 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. Insofar as recalling and re-examination of any person
already examined is concerned, the court must necessarily consider
and ensure that such recall and re-examination of any person, appears
in the view of the court to be essential for the just decision of the case.

The above explained scope of Section 311 Cr.P.C. and Section

138 of the Indian Evidence Act makes it clear that there is absolutely no
over-laping between the two sections. Merely because the case of a
party is not covered under Section 138 of the Indian Evidence Act,
would not be any ground to debar such a party or witness to move an
application under Section 311 Cr.P.C. The provision of Section 311
Cr.P.C. is independent and irrespective of Section 138 of the Indian
Evidence Act. While applying its mind on the aspect of permitting
examination or re-examination of a witness under Section 311 Cr.P.C.,
the trial Court need not restrict itself to enquire into an aspect whether
such re-examination has become necessary because of some facts

36
coming in cross-examination or not, as is required under Section 138 of
Indian Evidence Act.

The sole criteria for exercising power vested under Section 311
Cr.P.C. is the interest of justice and the necessity of such examination
or re-examination for just decision of the case. If any other element is
introduced while exercising power under Section 311 Cr.P.C., then it
would not be unjustified to say that there is a material irregularity in
exercise power by the trial Court.

The intention of the legislature to empower the Courts to permit

production of additional evidence appears to be that cause of justice
should not suffer and production of such evidence would enable the
Court to come to a correct finding and for that reason it would be
justified in permitting the additional evidence under the provisions of
law.

Support can be taken from the case law titled as “Mohanlal

Shamji Soni Vs. Union of India, (1991) GLJ 1521 (SC): (1991) 1
Crimes 818 (SC)” where it has been laid down by the Hon'ble Supreme
Court that any person can be summoned as witness or recalled or re-
examined at any stage of proceeding where essential and the power
under this section can be invoked even if the evidence in both sides is
closed so long as the Court retains seizing of the criminal proceedings.

CONSIDERATIONS WHILE EXERCISING POWERS UNDER SEC.311

Cr.P.C.1973
The Court should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to undesirable results.
The Hon‟ble SC also laid down considering factors while exercising
power under Section311.

Hon‟ble Supreme Court in the case of AG v. Shiv Kumar Yadav

and Anr., 2015 AIR (SC) 3501 has referred following principles, culled

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out by this court in earlier decision, to be borne in mind while having
resort to section 311 of Cr.P.C.

1. Whether the court is right in thinking that the new evidence is

needed by it?

2. Whether the evidence sought to be led in under Section 311 is

noted by the court for a just decision of a case?

3. The exercise of the widest discretionary power under section

311 Cr.P.C, 1973 should ensure that the judgment should not
be rendered on inchoate, inconclusive and speculative
presentation of facts, as thereby the ends of justice would be
defeated.

4. 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.

5. The exercise of power under section 311 Cr.P.C 1973 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.

6. 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.

7. The wide discretionary power should be exercised judiciously

and not arbitrarily.

8. 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.

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9. The object of section 311 Cr.P.C, 1973 simultaneously
imposes a duty on the court to determine the truth and to
render a just decision.

10. The court arrives at 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.

11. Exigency of the situation, fair play and good sense should be
the safeguard, 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.

12. 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.

13. The additional evidence must not be received as a disguise or

to change the nature of the case against any of the party.

14. 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.

39
 15. The power under section 311 Cr.P.C, 1973 must therefore, be
invoked by the court only in order to meet the ends of justice f
or 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.

The Hon'ble Apex Court in case State of Haryana vs. Ram

Mehar and others, 2016 (4) RCR (Criminal) 154, had held that
following things are to be kept in mind while deciding an application
under Section 311 of Cr.P.C. by the court.

a) The exercise of the widest discretionary power under Section

311 Cr.P.C should ensure that the judgment should not be
rendered on inchoate, inconclusive and speculative
presentation of facts, as thereby the ends of justice would be
defeated.

b) 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.

c) The exercise of power under Section 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.

d) 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.
40
e) The wide discretionary power should be exercised judiciously
and not arbitrarily.

f) 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.

g) Exigency of the situation, fair play and good sense should be

the safeguard, 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.

h) 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.

i) The power 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 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 -

41
 2013 (3) RCR (Crl.) 726: 2013 (4) Recent Apex Judgment
(RAJ) 354 Relied.

CONCLUSION:

The power under Section 311 Cr.P.C. has been conferred

upon the Court to ensure justice, it is clear that it is obligatory on
the part of the court to summon the witness in case his evidence
appears to be essential for just decision of the case and such
power may be exercised at any time. However, the power is
circumscribed by the principle underlying the section, that is, the
evidence to be obtained must be essential for the just decision of
the case.

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