[S. 311 CrPC] Prosecution Can Never Be Allowed To Fill Lacuna, Courts Should Decide Plea On 'Test Of Essentiality Of Evidence': Punjab & Haryana High Court

The Punjab & Haryana High Court has recently said that the prosecution can never be allowed "to fill up the lacuna by film plea under Section 311 CrPC and the Court's determination of the application should be based only on the "test of essentiality of evidence."

According to Section 311, "any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon 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."

Justice N.S. Shekhawat said, "The law is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. If the 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."

No doubt, the prosecution can never be allowed to fill up the lacuna and the Court's determination of the application should be based only on the test of essentiality of evidence, the Court added.

It further said that "Even the Court is under a legal obligation to satisfy itself that it was in every respect, it is essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case."

The Court was hearing the plea of an accused in a murder case, who was challenging the order passed by the Trial Court whereby application filed by the prosecution under Section 311 Cr.P.C. was allowed.

The Trial Court had allowed to place on record a Facebook post which was a picture of the accused the next day after the alleged incident of murder took place.

It was argued by the petitioner that the trial Court had acted on its own assumptions in arriving at a conclusion that it was a piece of evidence, which was just and essential for the fair decision of the case.

After hearing the submissions, the Court noted that "it is apparent that the occurrence had taken place on 28.10.2019 and the Facebook post from the profile ID of Sandesh, accused, was itself of 29.10.2019, i.e., next day of the murder of Shamsher Singh containing a caption written in Hindi as “Chal Chla Chal Teri Aakhari Sans Tak”."

The judge noted that the deceased's wife had stated in the complaint that her husband told her on the day of the incident that a picture had been taken from his phone of the accused persons, and thereafter, the deceased was untraceable and later found dead.

"Thus, the evidence, which is sought to be placed on record by the prosecution by moving the present application, is necessary for the just disposal of the case and the discretion under Section 311 Cr.P.C. has been correctly exercised by the trial Court," opined the Court.

It further added that "even otherwise, if the photograph or any other evidence is ordered to be placed on record, no irreparable loss would be suffered by the accused, as they will get sufficient opportunity to cross-examine the witnesses with regard to the admissibility of the said document and would also be at liberty to lead their defence."

Consequently, the plea was dismissed.

Title: Sandesh v. State of Haryana and another

Ankur Lal, Advocate, for the petitioner. Ms. Sheenu Sura, DAG, Haryana.

 B.K. Bagri, Advocate, for respondent No. 2.

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