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Power U/S 311 CrPC For Recall Of Witnesses: Allahabad High Court Explains

Shivang

22 Feb 2022 6:28 PM IST

    • Power U/S 311 CrPC For Recall Of Witnesses: Allahabad High Court Explains

    The Allahabad High Court has rejected an application filed under Section 482 of CrPC seeking to quash an order of the Additional Sessions Judge, Deoria rejecting two applications filed by the Applicant/accused under Section 311 of CrPC for recall of two prosecution witnesses.While doing so, Justice Sanjay Kumar Pachori shed light on the applicability of Section 311 CrPC. "Section 311 of...

    The Allahabad High Court has rejected an application filed under Section 482 of CrPC seeking to quash an order of the Additional Sessions Judge, Deoria rejecting two applications filed by the Applicant/accused under Section 311 of CrPC for recall of two prosecution witnesses.

    While doing so, Justice Sanjay Kumar Pachori shed light on the applicability of Section 311 CrPC.

    "Section 311 of the Code gives a wide power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide discretion on the court to act as the exigencies of justice require. The word "just" cautions the court against taking any action which may result injustice either to the accused or to the prosecution," it observed.

    The Bench explained that the provision can be broadly divided into two parts:

    The first part of the Section has given discretion to the Court and enables it any stage of an inquiry, trial, or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded.

    The second part of the Section is mandatory and imposes an obligation on the Court, to do one of aforesaid three things if the new evidence appears to it essential to the just decision of the case.
    It opined that 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 any discretion; it binds the court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge.
    "…Where the court exercise the power under the second part, the inquiry cannot be as to whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction."

    In the instant case, the applications for recall of witnesses were filed by the Applicant/ accused about 4 years of recording the statement-in-chief of PW-1 and about one year of recording the examination-in-chief of PW-5.

    Noting that the trial of the present case is pending since 2015 and that the applicant shall have an opportunity to produce oral or documentary evidence with regard to the fact in dispute as the trial is pending for defence evidence, the Court opined that trial judge gave well-founded reasons for rejecting the applications.

    Reliance was placed on Natasa Singh v. CBI, (2013) 5 SCC 741, where it was stated that:

    "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...An application under Section 311 of Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence."

    Similarly, in Swapan Kumar Chattarjee v CBI, (2019) 14 SCC 328, it was held that,

    "Where the prosecution evidence has been closed long back and the reasons for nonexamination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

    In Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, it was held as follows:

    "The exercise of power under Section 311 Cr.PC. 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.

    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."

    Accordingly, stating that the applicant shall have an opportunity to produce oral or documentary evidence with regard to the fact in dispute and thus recall of witnesses is not necessary, the petition was dismissed.

    Case Title: Bheem Singh vs State of UP Through Secretary Home, Govt. U.P. Lucknow
    Citation: 2022 LiveLaw (AB) 62

    Click Here To Read/Download Order


    Tags
    Allahabad High CourtJustice Sanjay Kumar PachoriCriminal Procedure Code 1973Section 311 CrPCSummoning Witness
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