Criminal Law

Power to summon as witness – Section 311 of CrPC

Sections 311 of the Criminal Procedure Code states that the trial court has powers to summon a person as a witness and also to examine a person who has not been summoned as a witness as of now. The trial court also has powers to re-summon recall a witness who has already been examined. According to section 311 of the criminal procedure code, this power has to be used if the court thinks that evidence is necessary for the proper adjudication of the matter.

The present section 311 of the criminal procedure code corresponds with section 540 of the old CRPC. It is the duty of the court to render proper justice to the parties. For this and, the court has been given powers under section 311 and it is the duty of the court that if a particular piece of evidence is deem necessary for the proper adjudication of the matter then the person who can give that evidence must be summoned before the court. This can be done even at the request of the person who has been alleged to have committed an offence. However this section gives adequate discretionary powers to the trial court. The trial court while exercising this power can refuse to admit evidence or can agree to admit evidence according to the facts and circumstances of each and every case.

Although the trial court has powers to summon a person who has already been examined as a witness, it is the duty of the court to give an opportunity to a criminal defense lawyer to cross-examine such witness.

The trial court can exercise these powers at any stage of the trial. The only relevant consideration before the trial court is that the evidence must be of such nature that it is essential for the proper adjudication of the matter. However once judgement has been delivered, the court becomes functus officio and therefore cannot exercise the powers under section 311 after the judgement has been delivered. For example in one of the cases the court had reserved the judgement but had not announced it. On the date judgement was to be pronounced, the court exercise powers under the 311 of the CRPC to summon a witness. It was held by the Punjab and Haryana High Court at Chandigarh that the trial court had powers to do so because the judgement had not been pronounced.

This power has been given to the court to ensure that justice is delivered. Justice is actually truth in action. Therefore it is the duty of the court to find the truth. And to that end the legislature has given the powers to the court to seek justice and find the real facts. However the court can refuse to entertain an application under section 311 if the court finds that the application has been made merely to delay the cause of Justice.

However it has been held in one of the cases that it is important that the investigating officer who has investigated the matter must be examined and cross-examined. In this case the investigating officer was transferred from Hoshiarpur to Jalandhar. The court held that the investigating officer who had conducted the investigation must be summoned so that the real facts may come out. The mere fact that he had been transferred could not prevent the court from summoning him since these transfers are considered routine matter in police department.

It is not necessary for either the prosecution or the defence to make an application under section 311 to summon a particular person. A witness can be called by the court on its own motion.

Although it is the duty of the prosecution to put before the court all the material evidence, however it is for the prosecution to decide whether a particular witness has to be examined or not. For example where a particular witness has turned hostile or has been won over by the accused party, the prosecution may decide not to examine the particular witness. In such a circumstance, a criminal defense advocate in Chandigarh can make an application under section 311 of the CRPC to examine that particular witness. The court is only to consider whether the evidence which is to be led by that witness is relevant and necessary for the proper adjudication of the case.

However it may be noted that this is one of those sections of the criminal procedure code which are used by criminal lawyers in Chandigarh, Punjab and Haryana to delay the trial and use long delays to make potholes in the prosecution version and later use it in favour of the accused persons. Therefore the court must be very cautious while deciding any application made under section 311 of the Criminal Procedure Code.

For example in one of the cases, Supreme Court held that where an application under section 311 had been made for additional evidence and to recall a particular witness after a lapse of one year even though that particular witness had been examined, cross-examined and discharged, such an application could not be allowed under section 311 by the trial court. However it may be observed that there is no limitation given in the criminal procedure code to exercise powers under section 311 to recall a witness and the exercise of this power depends on the facts and circumstances of each case.