What are the objects of recalling a witness under Section 311 of the Code of Criminal Procedure and when Courts should not exercise the power of recalling a witness for cross-examination?

Question: What are the objects of recalling a witness under Section 311 of the Code of Criminal Procedure and when Courts should not exercise the power of recalling a witness for cross-examination? [U.PH.J.S. 2007, UPHJS 2014]

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Answer

Section 311 in the Code of Criminal Procedure lays down the power of the court to summon material witnesses or examine persons present. The provision runs as under:

“Any Court may, at any stage of any inquiry, trial, or other proceedings 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.”

The section confers power in absolute terms. Where the Court exercises the power under the second part of the section, the inquiry cannot be made 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 under section.

Re-examination of prosecution witnesses cannot be permitted merely for filling up the lacuna in the prosecution evidence. Mistakes or laches on the part of the prosecutor in conducting his case cannot be taken to be a lacuna in the prosecution case.

In P Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242 wherein a case of bribery, where the accused sought recall of the complainant and the shadow witness for cross-examination on the plea that their cross-examination was deferred, as the defence wanted to cross-examine them after the trap laying officer was examined, it was held by the Supreme Court that the prayer for recall was liable to be accepted notwithstanding that the prayer was made years after their examination-in-chief. It was held that refusal to recall the witness would amount to condemning the accused without giving him the opportunity to challenge the correctness of the prosecution’s version and the credibility of the witnesses.

In regard to the object of Section 311 and when the court should not exercise the power of recalling a witness, the Hon’ble SC in Rajaram Prasad v. State of Bihar [AIR 2013 SC 3081] following principles were culled:

Whether the Court right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 noted by the Court for a just decision of a case?

• The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
• If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
• The exercise of power under Section 311 CrPC 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 in 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.
• The wide discretionary power should be exercised judiciously and not arbitrarily.
• The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision on the case.
• The object of Section 311 CrPC simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
• The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
• The exigency of the situation, fair play, and good sense should be safeguarded while exercising discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
• The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favor of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
• The additional evidence must not be received as a disguise or to change the nature of the case against any of the parties.
• The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
• The power under section 311 CrPC must, therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution, and circumspection. The Court should bear in mind that a fair trial entails the interest of the accused, the victim, and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

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