S. 311 CrPC | Court Can Permit Examination Of Additional Witness As Prosecution Witness If Prosecution Ought To Have Called Them: Supreme Court

The Supreme Court today(April 28) held that an additional witness summoned as per Section 311 of the Code of Criminal Procedure can be examined as a Prosecution Witness if the Court finds that such a person ought to have been examined as a prosecution witness but was omitted due to oversight.

The Court also held that the powers under Section 165 (judge's power to put questions or order production) of the Evidence Act are complementary to Section 311 (power to summon a material witness, or examine person present) of the Code of Criminal Procedure and can be exercised by either party to the case or suo moto by the Court when either party wants to bring a person as an additional witness at any stage of the trial even when evidence is closed.

As is clear from the language of the provision itself, there is a wide discretion with the Courts under Section 311 CrPC. These powers can be exercised suo moto or on an application moved by either side. After all, the object is that the Court must not be deprived of the benefit of any valuable evidence. It is absolutely necessary that the Court must be apprised of the best evidence available. Thus, Courts have been given wide powers to decide on their own if a witness is required to be called or recalled for examination or re-examination. This power under Section 311 CrPC can be invoked at any stage of the trial, even after the closing of the evidence. Section 311 CrPC can also be read along with Section 165 of the Evidence Act, as the powers of the Court under Section 165 of the Evidence Act are complementary to Section 311 of CrPC.

A bench comprising Justices Sudhanshu Dhulia and PK Mishra held this while dismissing the appeals filed by eleven convicts in 'Kannagi-Murugesan' honour killing case from Tamil Nadu. The convicts challenged the Madras High Court's 2022 judgment, which upheld their life sentence. The Court also dismissed the appeals filed by two policemen for fabricating evidence.

In the present case, the Court found that PW-49(step-mother of Murugesan), who was the eyewitness, was not cited as a witness in the chargesheet filed by the CBI. It was only later during the trial that an application was moved by the prosecution under Section 311 CrPC, summoning her as an additional witness. However, this was challenged on the grounds that she should have been called as a 'Court witness' and not a prosecution witness because of the apprehension that she could turn hostile and this would ultimately benefit the accused persons.

The bench made a distinction between summoning a person as an additional witness and a court witness and said that the former allows a lot of discretion, whereas, in the latter, the cross-examination is restricted in terms of the fact that only through the person of the Court that the parties can cross-examine the court's witness. 

" If the Court finds that such a person should have been examined as a prosecution witness and he/she was omitted from the list of witnesses due to some oversight, mistake or for any other reason, the Court may allow the application and such a person can be examined as a prosecution witness. Thereafter, the normal course of examination-in-chief, cross-examination, etc. would follow as per the procedure. . On the other hand, when the Court calls a person as a Court witness, there are some restrictions regarding the cross-examination of such witness."