This article is written by Ritika Sharma, pursuing B.Com. LL.B. (Hons.) from the University Institute of Legal Studies, Panjab University. The article discusses the meaning, scope, essentials, and guiding principles for the application of Section 311 CrPC. In addition to these, the article exhaustively studies the importance and misuse of this provision with the help of several judicial pronouncements.

It has been published by Rachit Garg.

Introduction 

The importance of trial lies with procuring the presence of the witnesses and the person to whom summons are sent. However, what if the stages of inquiry or examination of a person conclude and the examination of any witness is still essential for rendering justice? In such cases, Section 311 of the Code of Criminal Procedure, 1973, comes into the picture. 

In Jennison v. Baker (1972), Salmon LJ said, “law should not sit limply, while those who defy it go free and those who seek its protection lose hope.”

Section 311 is one of the significant features of criminal law, empowering courts to perform its duty in cases where calling any person or recalling any of the witnesses is crucial in order to answer some questions that are left unanswered during the proceedings of the Court.

In the  Code of Criminal Procedure, 1898, this provision was specified under Section 540, which was included in Chapter XLVI under the heading ‘Miscellaneous’. Section 311 which is placed under the head ‘General Provisions as to Enquiries and Trials’ in the 1973 Code is almost a verbatim reproduction of Section 540 of the old Code.

Multifarious questions arise with respect to Section 311 and its scope. Some of these are:

• When can a person be called for such an inquiry or examination? 
• Does the court have suo moto power under this section? 
• When recalled by the court, which party has the power to examine or cross-examine the witnesses?
• What are the grounds for rejection of the application filed under Section 311?

The follow-up piece aims at answering all these questions by defining the meaning and scope of this Section and shedding light on various rules that lead to the application of this provision. Moreover, the conundrum around the misuse of this discretionary power is highlighted with the help of judicial pronouncements. The article explains the judicial power and the ambit within which Section 311 can be exercised. 

Overview of Section 311 CrPC

Meaning of Section 311 CrPC

This provision empowers the court to summon material witnesses and examine them. It reads as “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.” Distinctly, this provision can be invoked in order to call a person as a witness when it is essential for the dispensation of justice. 

It is divided into two parts, where the first part is the discretion of the court as reflected by the usage of the word ‘may’ and the latter part is a mandate according to which the court must call or recall witnesses for the just decision of the case.

Scope of Section 311 CrPC

The words ‘any Court, at any stage’ extends the ambit of this provision. In Mohanlal Shamji Soni v. Union of India (1991), the Supreme Court stated that these words signify the discretion of the Court under Section 311 which is vast, and cannot be restricted in the widest possible terms. 

In Vijay Kumar v. State of Uttar Pradesh and Anr. (2011), the ambit of Section 311 was examined and the Supreme Court explained that wide discretionary power has been granted to the Court under this Section; therefore, it should be exercised in accordance with the principles of criminal law. Furthermore, in the case of Manju Devi v. the State of Rajasthan (2019), it was held that the scope of this provision is to determine the truth for the just decision of the case.

When can Section 311 CrPC be invoked

Any person can be summoned under this Section at the following stages:

• Stage of inquiry- The term ‘inquiry’ has been defined under Section 2(g) of the Criminal Procedure Code, 1973 as “inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court”. An inquiry is done in order to extract information that is important for the case at hand. 
• Stage of trial- It is essential for the system of justice that a fair trial be conducted in a court of law. For this, the summon is issued to the accused and other persons whose presence is valuable for the case. 
• Other proceedings- The scope of Section 311 has been enlarged with the use of the term ‘other proceeding’. It is applicable to any proceeding that is carried out under the Criminal Procedure Code. In the case of Mohanlal Shamji Soni v. Union of India (1991), the appellant contended that the decision regarding the examination of witnesses by the Union of India was incorrect since the case was pending for a considerable amount of time and the defense arguments were also concluded. The Supreme Court observed that there is no limitation with regard to the stage of the trial and hence, the focus should be to obtain the evidence which is essential for a just decision in a case. Therefore, in order to ensure justice, the examination and re-examination of the witnesses were permitted.

Examination of witnesses

The section that specifies the provision related to ‘examination of witnesses’ is Section 135 of the Indian Evidence Act, 1872. It stipulates that the process related to the production and examination of witnesses is to be regulated by the laws formulated under the statutes. After the charges are framed by the police authorities, the trial commences. It gives an opportunity to both parties to examine and cross-examine the witnesses. It is held in three stages according to Section 137 and Section 138 of the Indian Evidence Act, 1872. Firstly, an examination-in-chief is conducted which is followed by cross-examination, in which  the opponent party examines the witness. After that, the witness could be examined again by the first party, which is called a re-examination. 

Section 311 aims to widen the scope of examination of witnesses in a criminal case.

Suo moto power of the Court

Another important aspect of Section 311 of the 1973 Code is the suo moto power of the court to call or recall  witnesses. The court may be dealing with some cases where the parties have not shown any will to call the witnesses whose evidence could be instrumental in making a just decision. In those cases, the court can exercise this power in its own motion. In the case of Manju Devi v. State of Rajasthan (2019), it was observed that the court is competent to exercise suo moto power when it is necessary in order to arrive at a just decision. 

In the case of Heeralal Alias Nimma v. State of M.P. (1997), the order of the trial judge, which refused to summon witnesses, was in question. The Madhya Pradesh High Court in this case held that the order was casually observed by the trial judge and, hence, does not meet the requisite legal parameters. While highlighting the importance of suo moto actions of the courts under Section 311, the court, while highlighting the significance of the best available evidence, stated that “if it appears to the court that evidence of a particular witness is essential for the just decision of the case, statute casts the mandate on the court to summon him”.

However, in the case of Nayan Rajan Guhagarkar v. The State of Maharashtra (2021), the court passed a suo moto order to examine witnesses under Section 311, but the Bombay High Court accepted the contention of the petitioner that this provision cannot be used to fill the lacunae in the prosecution evidence. 

What can be considered ‘essential’ to the just decision of the case

Section 311 clearly specifies that the summoning of a witness for the examination or re-examination is required if it is essential to call or recall them for the dispensation of justice. The use of the word ‘shall’ in the second part of this provision makes it mandatory for the court to examine witnesses if it is essential for the just decision of the case. In the recent case of The State Represented by the Deputy Superintendent of Police v. Tr. Seenivasagan (2021), the emphasis was laid on the fact that the evidence by a person who is to be recalled should be essential to the just decision of the case.

The question that arises is what can be considered ‘essential’ to a ‘just decision’. 

In Mukti Kumar Ghosh v. State of West Bengal (1974), the Calcutta High Court held that for the application of this provision, the Court has to form a bona fide opinion as to the necessity of such an order. It was further observed that the decision regarding the necessity of an order under Section 311 would vary from case to case. In the Mohanlal Shamji Soni case (1991), the Supreme Court highlighted that the fundamental duty of the Court is to render justice.  

In the case of Swapan Kumar Chatterjee v. Central Bureau of Investigation (2019), the Supreme Court observed that the power under this provision is to be exercised if there is a strong and valid reason to do so. 

In a nutshell, the factors necessary to determine what is essential to the just decision of the case cannot be circumscribed within some fixed parameters and would depend upon the facts and circumstances of each case. It has to be ascertained with the utmost care and circumspection.  

Importance of Section 311 CrPC

In Hanuman Ram v. State of Rajasthan (2008), it was highlighted that the object of Section 311 is twofold. Firstly, it provides an opportunity for the accused and prosecution to present their case and get justice. Secondly, its importance can be interpreted from the point of view of an orderly society. This provision aims at preventing any scope of failure of justice. 

Ensures a fair trial

A fair trial refers to the mechanism where every possibility of bias is removed while conducting the examination of witnesses and recording evidence. It is guaranteed under Article 21 of the Constitution of India, 1950. Section 311, precisely, targets this purpose and ensures that the trial is just and equitable. In the case of Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others, (2006), the Supreme Court emphasised that the object of Section 311 is to remove the mistakes or possibility of doubts in the trial which could lead to a failure of justice. Also, in State (NCT of Delhi) v. Shiv Kumar Yadav & Anr. (2016), it was observed that discretion under Section 311 has to be exercised judiciously. The witnesses should not be recalled without the presence of some tangible reasons reflecting that the fair trial suffered. 

Upholds the rule ‘innocent until proven guilty’

Section 311 upholds the sanctity of the ‘innocent until proven guilty’ rule. In the Mohanlal Shamji Soni case (1991), it was observed that the power of the court to summon witnesses incorporates the rule of natural justice. This provision provides the opportunity for the accused to rebut their case by allowing any fresh evidence that is crucial for the case. 

Ensures justice

Section 311 makes the justice delivery mechanism more robust by culling out any scope of doubt in the process of trial, thereby ensuring justice. In several criminal cases, the parties seek to take the benefit of Section 311 by claiming that prosecution evidence has given their previous statements under coercion and, therefore, they should be recalled. This was also the plea of the prosecution  in the case of Ratanlal v. Prahlad Jat (2017). The Supreme Court rejected the plea and held that apart from ensuring justice to the accused and prosecution, Section 311 aims at rendering justice from the point of view of an orderly society.  

Follows the rule of ‘audi alteram partem’

The rule of ‘audi alteram partem’ is one of the principles of natural justice, which means ‘hear the other side’. Section 311, by providing a mechanism for recalling the witnesses, ensures that this rule is being followed in the criminal procedure. In the Mohanlal Shamji Soni case (1991), it was observed that denying the examination of witnesses under Section 540 (Section 311 of the new Code) would offend the maxim ‘audi alteram partem’ which would lead to the abrogation of one of the important principles of natural justice.  

Guiding principles under Rajaram Prasad Yadav v. State of Bihar (2013)

Section 311 is invoked when the evidence is essential for ensuring justice to the parties. In Rajaram Prasad Yadav v. State of Bihar (2013), an application under Section 311 was made by the respondent, stating that he had become hostile earlier due to the life threats that he was receiving. The Supreme Court, by rejecting the application, held that the respondent had several chances before in which he could have made immediate reference to any coercion or undue influence meted out against him. Therefore, he could not change his stance then. The Court also stated various principles guiding the application of Section 311 read with Section 138 of the Evidence Act. These include:

• Courts should weigh the need for new evidence and determine if it is essential for a just decision.
• The court’s decision should not be an “inchoate, inconclusive, and speculative presentation of facts”.
• This power should be exercised only to determine the truth or to obtain proper proof of any fact.
• The court must be completely satisfied with the fact that examination of witnesses would result in ensuring justice to the parties. 
• In cases where proper evidence or material records are not presented, the court should be liberal in allowing the parties to rectify such errors.
• A fair opportunity should be provided to the accused, however, the court should also use it very cautiously so as to avoid any capricious or improper exercise of such discretionary power.
• The application under this provision should be allowed only for strong and valid reasons. 
• The judiciary should act judiciously and not arbitrarily.
• The objective of recourse to Section 311 must not be to fill a lacuna in the trial but to prevent any kind of serious prejudice against the parties.
• The application should be made on the grounds that it is germane to the issues of the case and an opportunity for rebuttal should be provided to the opposite party.

Principles regarding application of Section 311 CrPC

Multifarious rules pertaining to the implementation of Section 311 have been laid down under some landmark judicial pronouncements. Some of these include the following:

Witness can’t be recalled merely because he/ she has given a different statement in another case

This can be explained with the help of the recent judgement of Saud Faisal v. State of Uttar Pradesh & Anr. (2022). In this case, the petitioner was facing two trials for the same offence. In the first trial, the prosecution witness affirmed the involvement of the petitioner as an assailant, while in the second trial under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, he stated that as the petitioner’s face was covered with a cloth, he could not identify him as one of the assailants. This led to the filing of the petition under Section 311 before the trial court, where the application was rejected. In an appeal, the Allahabad High Court affirmed this decision of rejection by asserting that the application had been made after 7 years without any justification, and Section 311 cannot be invoked on the ground that the prosecution witness has given a different statement in another case.

Delay in filing an application under Section 311 CrPC

The delay in filing the application creates substantial doubts about the veracity of the new evidence. When the delay is made in the cases of recalling the witnesses, it is usually concluded that the witnesses have been won over, and therefore, their examination does not serve the purpose of invoking Section 311. The application gets rejected where the delay in filing the application leads to the creation of doubts as to whether a just decision can be arrived at in a case. The same has been observed in several cases.

The Allahabad High Court in Bheem Singh v. State of U.P. Thru. Secretary Home, Govt. of U.P. Lucknow (2022) rejected the applications for recalling the witnesses. The case revolves around the offence of murder under Section 307 of the Indian Penal Code, 1860. The applications were filed to recall two witnesses after 4 and 1 year of the examination-in-chief respectively. The court refused to delve deeper into the details of prosecution evidence due to the following reasons:

• There is a huge delay in the filing of the applications and the reasons for such a delay were unsatisfactory.
• The applicant can provide oral or documentary evidence regarding the issue at hand.

Power to summon is not confined to any particular class of persons

In the case of Heerala Alias Nimma v. State of M.P. (1997), a petition under Section 540 (Section 311 of the Criminal Procedure Code, 1973) was filed by the accused stating that the witnesses whose names were mentioned in the charge sheet and an inspector who was an essential witness for unfolding the truth were not examined. The trial court rejected this application, declaring that all the significant witnesses had been examined and that the prosecution had closed the evidence and did not intend to examine any other witness. This decision was set aside by the Madhya Pradesh High Court, stating that the Court has the discretion to call or recall any person who can throw light upon the matter in dispute. 

The action may equally benefit the prosecution

Section 311  is not a privilege to any one party to the case, rather it benefits both the parties. In the case of Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Others (2006), the Supreme Court highlighted that “this 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 of the prosecution and not that of the accused.” Similarly, in Jamatrai Kewalji v. State of Maharashtra (1967), the Supreme Court held that the term ‘just decision’ under Section 311 is not limited to the accused, and the prosecution can get equal benefit from this provision. 

It is also pertinent to note that witnesses called under Section 311 can be crossed by both the accused as well as the prosecution. In Rengaswami Naicker v. Muruga Naicken (1952), the Court observed that two rules are to be applied before invoking this provision. The rules as stated by the Madras High Court are:

• That the prosecution and the accused are both equally entitled to cross-examine a court witness, and
• That if the evidence of a court witness is prejudicial to the accused, the accused must be given the opportunity to rebut the evidence.

Paramount consideration to the justice in the case

It has been emphasised in an umpteen number of cases that the purpose of this provision is to arrive at a just decision in the case. In the case of Manju Devi v. State of Rajasthan (2019), it was held that the length of the trial cannot be considered a relevant factor in determining whether the application under Section 311 should be accepted or not. If the request is to examine or cross-examine a material witness for a just decision, this section is applied. Therefore, the Section is invoked with great caution and circumspection. The emphasis is to be placed on the vindication of the innocence of the accused person and the prevention of the escape of the culprit. 

Not empowered to summon documentary evidence

Section 311 deals with the calling and recalling of witnesses and has a wide ambit of its application. However, it does not include the provision of summoning documentary evidence. The same was highlighted in the case of Tomaso Bruno And Anr. v. State of U.P. (2012). The accused contended that the best evidence was the C.C.T.V. footage that was concealed by the prosecution and placed reliance upon Section 311 stating that the court has the duty to summon the said camera footage. However, the Allahabad High Court disagreed with this contention and observed that the legislative intent behind the framing of Section 311 of the Criminal Procedure Code is to summon the witnesses at any stage of the proceedings. The document on which the accused has to rely is to be summoned under Section 233(3) of the Criminal Procedure Code. 

Not applicable if the witness’s examination, cross-examination, or re-examination is not over

In the Mukti Kumar Ghosh case (1974), it was held that the witnesses could not be recalled before the prosecution evidence was closed. Apparently, this provision is to be used as a means of last resort when the witnesses are discharged and the stage of evidence has ended. Section 165 of the Indian Evidence Act could be taken recourse to in cases where the judges want to obtain proof and ask questions from the witnesses in the middle of the evidence stage. Section 165 empowers the court ‘to put questions or order production’. 

Can be invoked till the pronouncement of the judgement

The court can exercise the power under Section 311 till the court is in session of the trial (i.e. during the trial proceedings). In Aeltemesh Rein v. State of Maharashtra (1980), it was contended that once the date of the judgement was fixed, the trial was concluded and any application under Section 311 could not be accepted. However, the Bombay High Court held that the trial of the criminal case comes to an end once the judgement has been pronounced, and therefore, an order under Section 311 can be passed at any stage before that.

When the court calls, the witness does not become a party to the litigation 

This principle was laid down in the case of Mukti Kumar Ghosh v. State of West Bengal (1954). The Calcutta High Court stated that when the witnesses are called or recalled under Section 540 (Section 311 of the Criminal Procedure Code, 1973), then the Court has to decide as to which party is permitted to examine them. The witnesses, merely by being summoned under this provision, do not become parties to the litigation. 

Apart from making the system effective, this principle aims at alleviating the hardships of the witnesses who are being called again and again in the court of law.

Parties to pay the costs

In cases where the powers of Section 311 have been utilised unfairly, the court can order the accused to pay the costs to the witnesses as compensation. This rule emerged in the case of Ashok Kumar v. State of Rajasthan and Anr. (1994), wherein the Rajasthan High Court stated that the ambit within which Section 311 could be exercised includes compensating the witnesses by the accused if justice requires it. 

Difference between Sections 311 and 391 CrPC

Section 311 is often confused with Section 391 of the Criminal Procedure Code. Both sections make provisions for additional evidence in criminal cases. 

Section 391 simply provides that the appellate court can take further evidence or direct it to be taken by a magistrate or the court of session. Additional evidence is allowed when the court is satisfied with one of the following three parameters:

• Evidence ought to have been before it is not there,
• Some evidence has been left out,
• Evidence was taken erroneously.

In the case of Zahira Habibulla H.Sheikh and Anr. v. State of Gujarat and Ors. (2004), the evidence under Section 391 was permitted before the appellate court because the court was satisfied that the witness had not spoken the truth before the trial court but was willing to do so before the appellate court. The Supreme Court, regarding the application of Section 391, observed that the court has to record the reasons before any testimony is allowed under this provision. 

On the other hand, Section 311 allows the calling or recalling of witnesses for the purpose of examination in the court of trial. The object behind this is to include the important evidence that could lead to the just decision of a case, while Section 391 simply allows the appellate court to take further evidence.

This difference was pointed out in the case of Harjit Singh v. The State of Punjab and Others (2009). In this case, the accused were prosecuted for the offence of cheating but were acquitted. The petitioner appealed against the decision and filed a petition under Section 311 before the appellate court for permission to present the photocopy of the judgement, which he contended was material evidence in this case. The question was whether additional evidence is admissible before the appellate court when no such request was made before the trial court. This application was rejected by the Punjab and Haryana High Court as it opined that it would cause serious prejudice to the accused person. The court further highlighted the differences between Sections 311 and 391 of the Criminal Procedure Code. Firstly, Section 311 deals with the examination of additional evidence at the stage of trial, but Section 391 empowers the appellate court to permit additional evidence. Secondly, Section 311 makes it mandatory for the court to accept the application of calling or re-calling witnesses for examination when the same is essential for the just decision of the case. However, no such mandate is expressed within the wording of Section 391. 

Table of differences between Section 311 and Section 391 CrPC

The following table consists of the differences between the two as observed in the Harjit Singh case.

S. No.	Basis	Section 311 CrPC	Section 391 CrPC
1	Scope	Section 311 has a very wide scope. It is applicable in all the stages such as stages of inquiry, trial, or other proceedings.	Section 391 has a relatively narrow scope and is applicable at the appellate stage after the trial ends.
2	Object	Object of this provision is to ensure justice and reach a just decision in the case. The court is not empowered to accept an application to fill the lacunae in prosecution evidence.	Section 391 aims at allowing evidence that has been left out or was taken erroneously before.
3	Mandate	Although the court has discretionary powers, this section makes it compulsory to allow the evidence when the same is essential for the just decision of the case.	Section 391 creates no such mandate.
4	Court	Section 311 empowers the trial court to summon witnesses for the evidence.	This provision empowers the appellate court to consider the additional evidence.
5	Applicability	It is applicable at any stage before the trial is concluded and the judgement has been given by the trial judge.	It is applicable during the course of appeal after the judgement has been passed by the trial judge.
6	Recording of reasons	The recording of reasons is not necessary while permitting application under this Section.	Section 391 expressly specifies that the reasons are to be recorded when additional evidence is permitted by the appellate court.

Grounds of dismissal of application under Section 311 CrPC

Section 311 grants courts very wide discretionary power. However, the decision between acceptance and rejection of the application should be made judiciously and not arbitrarily. Following are the points that highlight the grounds on which the courts have rejected the requests for calling or recalling witnesses in some cases:

• Change of the counsel- The petition under Section 311 cannot be accepted merely because one of the parties has changed counsel for whatever reason. This was observed in the case of Ag v. Shiv Kumar Yadav and Anr. (2015). The Supreme Court held that witnesses cannot be expected to face the inconveniences just because the party has changed its counsel and is unaware of the defence strategy. If it is permitted, then the aim of the advancement of justice would not be achieved. Re-trials lead to delays in rendering justice. Therefore,  it is crucial that the petition is dismissed in such cases.
• Abuse of process of law- It is one of the causes of the rejection of a plea made under Section 311 of the Criminal Procedure Code. In the recent case of Sanjeev Singh v. The State of Jharkhand (2022), a petition was filed under this provision to recall two prosecution witnesses as the prosecution had brought new evidence in the form of SFSL (State Forensic Science Laboratory) and CDR (Call Data Record). However, the Jharkhand High Court, while rejecting this petition, held that the CDR cannot be tinkered with and, thus, it already provides authentic information. All the details with regard to calls were stored in it. Furthermore, the court highlighted that the witnesses cannot be recalled when the court is of the view that all the information from the witnesses has already been taken, and hence, any abuse of the process of law should be avoided by rejecting such applications. Similarly, in Umar Mohammad v. State of Rajasthan (2007), when an application under Section 311 was filed after nine months after the deposition of the prosecution witness, the Supreme Court of India rejected the same, observing that it is unlikely that the application was filed by the prosecution witness on his own volition. 

Similarly, in the case of Swapan Kumar Chatterjee v Central Bureau of Investigation, (2019), the Supreme Court held that the application under Section 311 was filed to abuse the process and stated “where the prosecution evidence has been closed long back and the reasons for non-examination 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”.

• To fill the gaps in the prosecution evidence- The object of the provision is to ensure justice. However, Section 311 cannot be invoked to make amends to any case. For instance, in the case of Nayan Rajan Guhagargar v. The State of Maharashtra (2021), impugned order to recall the complainant to prove a piece of essential evidence (memory card in this case) was challenged. It was contended that, as the stages of the recording of evidence and arguments were over, the court could not take recourse to Section 311. The Bombay High Court observed that the application under Section 311 cannot be accepted where it is made to fill the lacunae in the prosecution evidence. A similar observation was made in the case of the State Represented by the Deputy Superintendent of Police vs. Tr. Seenivasagan (2021) where the Supreme Court of India stated that the application under Section 311 must not be allowed to encourage a step towards causing an unfair advantage to the opposite party. 

Misuse of Section 311 CrPC

The wide scope of the application of this provision coupled with the discretionary power of the judiciary results in the misuse of Section 311. The parties, by hook or by crook, strive toward winning the case, and this provision provides a golden opportunity to make use of the loopholes.

Several times, the judiciary acts with complete caution and prevents the misuse of this provision. For instance, in the Sanjeev Singh case (2022) as all the evidence was already taken and the Jharkhand High Court viewed no point in calling any more witnesses, the application made under Section 311 was rejected, and the court averted the scope of abuse of process of law. 

In the case of Umar Mohammad v. State of Rajasthan (2007), an application was filed by the prosecution witness stating that the five convicted persons are innocent. This application was to be considered under Section 311. However, the Supreme Court rejected it as there were doubts with regard to the veracity of the application. The court held that the plea was made after 9 months of the completion of the deposition, which points to the fact that the prosecution witness was won over. 

In the recent case of the State Represented by the Deputy Superintendent of Police v. Tr. Seenivasagan (2021), Justice Chandrachud stated the reasons upon which the application under Section 311 should be refused. The Apex Court had observed that the new evidence should not be used as a disguise for retrial, and the precondition is that the evidence which is prayed to be admitted in the application is germane to the issue around which the case revolves. 

Misuse of this provision leads to delays in the dispensation of justice as the parties make use of this provision to deviate the justice delivery mechanism by adopting unfair means. In the case of State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016), the Delhi High Court succinctly put forth that the plea under Section 311 should be bona fide. The essentiality of the evidence is to be balanced against factors such as hardship to the witnesses or delay in providing justice. 

Conclusion

Section 311 gives the courts a carte blanche (i.e. full authority) by empowering them to call or recall witnesses as per their discretion and without any limitations. There are no rigid rules for the application of this provision. However, judicial pronouncements have played a stellar role in defining the ambit and restrictions of this section. Undoubtedly, the court has the duty of fair play to arrive at a decision that leads to the dispensation of justice. As this provision provides discretionary power to the court, it should be invoked with great caution and circumspection. In the recent judgement in the case of Varsha Garg v. the State of Madhya Pradesh & Ors. (2022), the Supreme Court of India expressed the basic parameters for the application of Section 311 in the statement, which reads as “essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitutes the touchstone which must guide the decision of the court.” 

The judges can invoke this section on their own motion. Therefore, they owe a duty not to use it arbitrarily. In the case of Rengaswami Naickar v. Muruga Naicker (1952), Justice Ramaswami stated “a judge is not placed in the high position merely as a passive instrument of the parties. He has a duty of his own, independent of them, and that duty is to investigate the truth”. 

Section 311 not only fulfils the constitutional goals of providing a mechanism of fair trial and ensuring justice to the parties but it also guarantees the accused the human right of getting a just decision from an unbiased system. However, certain reforms should be introduced to avoid the misuse of this provision that causes delays in concluding the case.

Frequently Asked Questions

What are the essential ingredients of Section 311 of the Criminal Procedure Code?

An application under Section 311 can be filed at the stage of inquiry, trial, or other proceedings. It can be invoked if the summoning and examination of the witnesses are essential for the just decision of the case. If this requirement is fulfilled, the court has to accept the application under Section 311.

How is Section 311 of the Criminal Procedure Code misused?

The mandate provided under Section 311 is to ensure justice to the parties. This provision acts as a mandate for the courts to pass orders if the condition ‘essential to the just decision of a case’ is fulfilled. However, time and again, it is used to abuse the process of law which causes delays in the dispensation of justice. It can be avoided when the judges use this discretionary power cautiously. 

What is Section 311A of the Criminal Procedure Code?

Section 311A was inserted in the Code of Criminal Procedure, 1973 in the year 2005. It lays down the provision empowering the Magistrate of the first class to order any person to give specimen signatures or handwriting. It is considered an extension of Section 311. In the case of Raghunandan v. Union of India (2017), while discerning the relationship between Section 311 and Section 311A, the Rajasthan High Court stated that considering the fact that both the Sections are stipulated in the same chapter i.e. Chapter XXIV of the Code, these are co-related provisions. 

References 

• Kelkar, R.V. (2018) Criminal Procedure, Eastern Book Company, Lucknow.
• https://primelegal.in/2021/07/14/section-311-of-crpc-cannot-be-used-to-fill-lacunae-in-the-prosecution-evidence-bombay-high-court/ 
• https://www.livelaw.in/top-stories/s-311-crpc-witness-cant-be-recalled-merely-because-he-gave-a-different-statement-in-another-case-relating-to-same-incident-supreme-court-202146 
• https://www.scconline.com/blog/post/2022/08/11/clearing-of-prosecution-evidence-not-an-absolute-bar-from-re-examining-materials-witnesses-under-section-311-crpc-supreme-court/#:~:text=Crpc%3A%20Supreme%20Court-,Clearing%20of%20prosecution%20evidence%20not%20an%20absolute%20bar%20from%20re,in%20the%20derailment%20of%20justice. 

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