Power to summon material witness, or examine person present:
Section 311 of Criminal Procedure Code of 1973 is as under:
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
Exercise of power to recall any or to summon any person:
In Jamatraj Kewalji Govani Vs The State Of Maharashtra Air 1968 Sc 178: 1968 Cri LJ 231 was a case arising out of Section 540 of old Cr. P. C. and in respect of prosecution under Section 135 of Customs Act. A custom inspector searched the shop of accused and seized certain watches from the accused which were alleged to be smuggled. The trial concluded without any defence what-so-ever and in argument challenge was made that the seizure was not lawful. In these circumstance the custom inspector was permitted to be examined to lead evidence on his “reason to believe smuggled goods” for a just decision of a case. If the court considered that summoning the witness can result in just decision it would be lawful to do so but unfortunately we are at the stage of framing of charge and not final decision of the case. Further more Sh. R. K. Rawal is a witness which has given a limited testimony which does not cover the huge gaps in prosecution evidence including the formation of belief.
In Mohanlal Shamji Soni vs Union of India 1991 Supp (1) SCC 271: 1991 SCC (Cri) 595 is a case confined to its own facts . However, the prosecution in that case was vigilant and had moved an application to recall one witness and to summon two more witnesses to clarify the legality of seizure and the nature of goods seized. Of course the power under section 311 Cr.P.C. was exercised at the conclusion of trial and not at the stage of framing of charge.
Therefore it appears that the prosecution must show as to what the proposed witness is going to clarify and how it’s omission affected the “Just Decision” in the case.
In Raj Deo Sharma (2) vs. State of Bihar (1999) 7 SCC 604 : A.I.R. 1999 SC 3524 is a judgment on review petition filed by CBI in respect of Raj Deo Sharma (1) vs. State of Bihar A.I.R. 1998 SC 3281. In Raj Deo Sharma (1) vs. State of Bihar, Bench of the Hon’ble Supreme Court unanimously acknowledged the right of speedy trial as a Constitutional Right flowing from Article 21 of Constitution. It also recognised that delay prejudiced the right of Prosecution as well as the Accused entitled to fair trial. Therefore the Supreme Court inter alia directed as under:
“ In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the Accused is in jail or not , the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the Court can proceed to the next step provided by law for the trial of the case.”
Further in direction (iv) it was observed :
“But if the inability for completing the prosecution evidence within aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii).”
The observation quoted by prosecution arise from the judgment of Thomas J. clarifying that aforesaid clarification does not effect power of court to summon witness u/s 311 Cr.P.C. even after closure of prosecution evidence after delay of 2 years. This clarification is not a binding law as the concurring judgement of M. Srinivasan J. neither agreed to this aspect nor referred to section 311 of Cr.P.C. Similarly the dissenting judgement of Shah J. does not refer to section 311 of Cr.P.C. Therefore the minority view of Thomas J. is not a binding decision. In any case this decision was overruled by a Constitution Bench of 5 judges of Supreme Court in P. Ramachandra Rao vs State Of Karnataka (16 April, 2002) but it was observed:
“The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay’s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted.” (italics supplied).
Therefore in view of observations made above, the prosecution must not be given any more opportunity to lead evidence at this stage after 14 years of trial at pre-charge stage itself.
In U.T. of Dadra & Haveli & Anr vs Fatehsinh Mohansinh Chauhan 2006 (7) SCC 529 after the prosecution evidence was over, accused in his statement under Section 313 of Cr. P.C. took a plea of alibi that at the time of incident he was in a meeting with Collector and examined a Deputy Collector and an Executive Magistrate. However the Collector was selectively left out by the defence. It was in these circumstance the SPP summoned the Collector to clarify the plea of alibi and the application under Section 311 was allowed.
In Rajendra Prasad vs. NCB 1999 (3) Crime 106 (SC) these were the reasons why application u/s 311 Cr.P.C was allowed:
“There was negligence on the part of Public Prosecutor as he closed evidence twice without verifying whether cross examination of all the witnesses has been concluded or not. However, in the interest of justice, I allow the application to the extent that P.W. 21 Dalip Singh be recalled for cross examination. The interest of justice demands that things should be clear before the Court to assist it to meet the ends of justice.”
In State (Delhi admn) vs Ramesh @ Ramesh Kumar- 1990 (1) CC Cases 4444 (Delhi High Court) it was observed:
“There is only one eye witness of the occurrence and she was examined as PW1. Her exam-in-chief was recorded on 13.4.1987 and her cross-exam, was completed on 4.7.1987. PW 1 Pushpa herself had made an application on 12.12.1988, in which she had prayed for being given permission to narrate the true facts of the case and she filed two affidavits giving out her version of the occurrence which was at variance to what she had deposed in court as Public Witness 1 or had told the police in the F.I.R. The Additional Sessions Judge had not allowed that application and had observed that the question whether Public Witness 1 should be allowed to give any other statement would be decided after prosecution evidence has been completed.
(3) The respondent had filed an application praying that Public Witness 1 be recalled for purposes of further cross-exam, as new material in the shape of affidavits of Pushpa had come on the record and thus, it has become necessary to confront Public Witness 1 with her averments made in the two affidavits being in contradiction what she had deposed in court. The learned Additional Sessions Judge exercising his power u/s. 311 of the Code of Criminal Procedure (‘the Code’) had allowed this application and had directed for recalling PW 1 for further cross-exam.”
As may be seen, in the aforesaid case the witness herself wanted to explain rather resile from previous testimony and therefore applied to the court herself for re-examination which was declined by the trial court.