Section 311 CrPC | Trial Court Can Regulate Sequence In Which Witnesses Are To Be Examined: Madhya Pradesh High Court

Justice G.S. Ahluwalia made the observation while lamenting over the trend of key witnesses falling prey to the "culture of compromise"-

"The Trial Court must rise to the occasion to protect the witnesses from the culture of compromise. Withholding of eyewitnesses for no good reason, may compel the witnesses to become prey of the culture of compromise. When the Trial Court can exercise its power under Section 311 of Cr.P.C. to summon any witness, then it can also regulate the sequence in which the witnesses are to be examined. Thus the provision of Sections 225, 226 and 301 of Cr.P.C. would not eclipse the power of the Trial Court to make an attempt to find out the truth," the court said.

The observations have been made by the court in its order in a murder accused's bail application U/S 439 CRPC. His main ground for seeking the benefit of bail was that the eyewitnesses in the case were not being examined by the Prosecution.

The State submitted before the Court that the Public Prosecutor in the case was interested in getting other witnesses examined first and therefore, he did not include the names of the eyewitnesses in the list. However, he would do so on the next date of hearing, the court was told.

The application seeking bail was withdrawn by the accused in view of the statement made by counsel representing the state. Permitting the withdrawal, the court said it expects the public prosecutor to pray for issuance of summons or warrants to the witnesses and if no such prayer is made, then trial court shall issue summons to the two witnesses.

However, after examining the submissions of parties and documents on record, Justice Ahluwalia said the trial court should step up and nudge the Public Prosecutor in the right direction in cases where they are not acting in accordance with law-

"Before considering the prayer of the counsel for the applicant, this Court would like to observe that the role of the Court is not merely a mute spectator. Its duty is to seek truth. The Court should be alert during criminal trial. An offence is against the society and the Court cannot sit idle and cannot act merely at the pleasure of the Public Prosecutor. It is true that the Sessions Trial is to be conducted by the Public Prosecutor but the Court must be vigilant enough to issue instructions to the Public Prosecutor in case if it is found that the Public Prosecutor is not acting in accordance with law."

The Court said it was unable to understand the decision of the Public Prosecutor to not prioritize the examination of the eyewitnesses in the case. It said:

"Eyewitnesses are the ears and eyes of the Court. Nowadays it is being observed that the examination of eyewitnesses are being delayed for certain reasons. The delay in examination of eyewitness is not in the interest of criminal justice dispensation system. This Court was unable to understand as to why the Public Prosecutor adopted the method of withholding eyewitnesses and why he gave preference to those witnesses whose evidence can at the most be said to be corroborative in nature."

Observing that withholding of the eyewitness for no good reason may compel them to become prey of the culture of compromise, the single bench said the trial court can also regulate the sequence in which the witnesses are to be examined and the provision of Section 225, 226 and 301 of CrPC would not "eclipse the power" of the court to make an attempt to find out the truth.

The court in this regard issued five directions:

1. The trial Court must ensure that the eyewitnesses are examined at the earliest and should be at the beginning of the trial.

2. No prayer of either Public Prosecutor or the defence, which is contrary to the above direction, should be accepted by the Trial Court.

3. If the Public Prosecutor has not prayed for examination of eyewitnesses at the first instance even then the Trial Court must call the eyewitnesses at the beginning of the trial and should not perpetuate the mistake of the Public Prosecutor because the Court must realize that the witnesses are eyes and ears of justice and if the system is permitted to close the eyes and ears of justice, then the entire justice dispensation system would fall

4. Whenever the witnesses are present, their examination-inchief must be recorded even if the defence counsel is not ready to cross-examine