Discuss the ingredients for the recall of a witness under Section 311 of CrPC with relevant case laws on the subject.

Questions: Discuss the ingredients for the recall of a witness under Section 311 of CrPC with relevant case laws on the subject. [U.P.H.J.S. 2014, MPHJS 2014]

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Answer

Section 311 of the Code of Criminal Procedure provides that any Court may, at any stage of any inquiry, trial, or other proceedings under the CrPC, summon any person as a witness, 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 true test, therefore, is whether it appears to the Court that the evidence of such a person who is sought to be recalled is essential to the just decision of the case.

Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such discretion is to be exercised judiciously and not arbitrarily.

The power of the court in this context is very wide, and in the exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness or to recall him for further examination in order to arrive at a just decision in the case.

In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 of CrPC and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth and to render a just decision.

The same is also the object of Section 311 CrPC, wherein the court may exercise its discretionary authority at any stage of the inquiry, trial, or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who is expected to be able to throw light upon the matter in dispute because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

The scope and object of the provision are to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision in the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results.

An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party.

Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity for rebuttal, however, must be given to the other party. [Sanjeev Singh v. State of Jharkhand on 24 March 2022]

The power conferred 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 great caution and circumspection. The very use of words such as “any court”, “at any stage“, “or any inquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way.

There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

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