Criminal law

Section 311 of the Code of Criminal Procedure | The power to call witnesses shall be invoked when it is necessary for a just decision to be made: the Supreme Court


The Supreme Court recently allowed a request by a witness under Section 311 of the Code of Criminal Procedure seeking to be called back for questioning. The court allowed the appeal noting that in his initial testimony, there was no opportunity for him to present certain facts, which became relevant after cross-examination of the expert witness.

The court cited a precedent according to which the authority stipulated in Article 311 of the Code of Criminal Procedure should be invoked when “…it is necessary for the just judgment of a case.”

He reiterated the established legal position that Section 311, (Power to call a material witness, or to examine a person present) of the Criminal Procedure Code 1973 (Criminal Procedure Code), should be invoked solely for purposes of justice and should be exercised with discretion and caution. A recall is not normal, and the court’s discretion must be exercised judicially to prevent a miscarriage of justice.

substitutes, including Judges Ehsanuddin Amanullah and SVN Bhatti, was hearing the current appeal filed against the contested order made by the Punjab and Haryana High Court in Chandigarh. In its Impugned Order, the Court denied the appellant’s request under Section 311, (Power to call a physical witness, or to examine a person present) of the Criminal Procedure Act 1973 (CRPC), for a further investigation into his summons as a witness.

Background of the case

In this case, the appellant filed a complaint against the defendants that, as former employees of his company, they stole company data and used this data to manufacture equipment that was manufactured by the appellant’s company. During the trial, before the report came from the Central Forensic Science Laboratory, Chandigarh (CFSL), the appellant’s evidence was recorded. However, when the court examined the CFSL expert who prepared the report, although he described the data found on the defendant’s hard drive(s), there was no indication if they were the same. In relation to what he claimed was stolen from the appellant company. Hence, in the circumstances, the appellant requested to be called as a witness. After the Court of First Instance and the Supreme Court rejected the same matter, the matter is before this court.

the claims of the parties

Counsel, who appeared on behalf of the appellant, asserted that there had been no previous occasion for him during the trial to ask any question in connection with the comparison of the data. It was further argued that the comparison between the two sets of data was the main crux of the complaint, and without it, the trial itself would turn into a farce.

On the other hand, counsel, who represented the defendants, said that the appellant could not, and should not be allowed, to fill in the loopholes left in the previous round, at the present stage.

Court notes

Initially, the court cited a series of rulings in which it made clear that discretion under Article 311 of the Code of Criminal Procedure could only be invoked to achieve the goals of justice.

in Vijay Kumar v. State of UP, (2011) 8 SCC 240While explaining the scope and scope of Article 311, the Court held that:

“Although Section 311 confers broad discretion to the court and is expressed in the widest possible terms, discretion under said Article can only be invoked to achieve the objectives of justice. The discretion should be exercised consistent with the provisions of the Code of Criminal Procedure and the principles of criminal law The discretion granted under Section 311 shall be exercised judicially for reasons determined by the court and not arbitrarily or capriciously.

in Zahira Habibullah Sheikh v Gujarat (2006) 2 SCC (Cri) 8In considering the basic concept under Article 311, the Court held that:

“The intent of Section 311 of the Act is that there shall not be a failure of justice due to either party being wrong in presenting valuable evidence in the record or leaving ambiguity in the statements of witnesses who have been cross-examined on either side. The deciding factor is whether necessary for the just judgment of the case.

More at Manju Devi v Rajasthan, (2019) 6 SCC 203The Supreme Court emphasized that discretion, as under Section 311 of the Code of Criminal Procedure, aims to enable the court to maintain a proper record and remove any ambiguity in relation to evidence, while ensuring that no harm is caused to anyone. A cautionary note has been issued Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 Where the court ruled the following:

“It is well established that the power conferred under Section 311 shall be invoked by the court only to achieve the aims of justice. The power may be exercised only on strong and legitimate grounds, and shall be exercised with great discretion and caution. The court has power under this section even to call witnesses for re-examination or further conduct of questioning, which is necessary in the interest of justice, but the same shall be exercised after having regard to the facts and circumstances of each case.The power under this provision may not be exercised if the court finds that the application has been made as an abuse of process of law.

Based on these observations, the court found that the intervention case had been initiated.

“In light of the bizarre facts of the present case, the appellant’s summons under Section 311 of the Code of Criminal Procedure was justified, because in the due course of his preliminary testimony, there was no opportunity for him to present the relevant facts regarding the similarity of the statements before the court, which It arose after a CFSL expert’s examination”.

Moreover, the Court also held that if the opportunity for re-examination was given, Defendants 2 to 9 would not be affected as they would have ample opportunity to cross-examine the appellant.

Hence, the court accepted the appellant’s summons request, and ordered the court of first instance to consider the request within six weeks from the date of the order.

Case Title: Satbir Singh v. State of Haryana and Urs

Citation: 2023 LiveLaw (SC) 743; 2023 INSC 786

Click here to read the ruling


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