S.311 CrPC | Successive Pleas To Summon Same Witness Not Barred But Should Be Dealt With Higher Degree Of Circumspect: Punjab & Haryana HC

The Punjab and Haryana High Court has made it clear that a criminal court is well within its judicial discretion under Section 311 of CrPC to summon any person as a witness at any stage of proceedings till such Court is seized of the matter.

For context, Section 311 of CrPC empowers Court to summon material witness, or examine person present at any stage of any inquiry, trial or other proceeding.

Justice Sumeet Goel said that under Section 311 "successive application(s) for summoning same witness for examination/re-examination is not debarred but such a plea deserves to be dealt with exercising a higher degree of circumspection."

The Court also stated the following factors to be considered and powers of Trial Court under Section 311 of CrPC:

"(i) The prime factor for considering a plea under Section 311 of Cr,.P.C. is as to whether such evidence “appears to be essential to the just decision of the case.”

(ii) Section 311 of Cr.P.C. can be invoked by a criminal trial Court even when cross-examination of a witness has earlier been foreclosed by a Court order. Such exercise of power by the Court cannot be construed as the concerned Court recalling/reviewing its own order.

(iii) Section 311 of Cr.P.C. empowers a criminal trial Court to even allow further examination/cross-examination of a witness at instance of the prosecution/accused.

(iv) A criminal Court is well within, its judicial discretion, to summon any person as a witness at any stage of proceedings/trial etc. till such Court is seized of the matter.

(v) A criminal trial Court may exercise power under Section 311 of Cr.P.C. on an application made by a party to lis or on its own volition."

The Court further added the exercise of power under Section 311 of CrPC by a criminal trial Court should be undertaken by according cogent and lucid reasons, in accordance with basic principles of our criminal jurisprudence, for such exercise of its power.

Justice Goel was hearing the petition under Section 482 of the CrPC for quashing of order passed by the Judicial Magistrate Ist Class, whereby the application filed by the petitioner (accused in the case), under Section 311 of CrPC for recalling of the witness for her cross-examination, was dismissed.

The Counsel for the petitioner submitted that the petitioner has argued that the said witness, is a prime witness of the prosecution, being complainant in the FIR in question under Sections 406, 498-A, 120-B of IPC.

Whereas, the State counsel argued that sufficient opportunities was provided to the accused for conducting cross-examination of the said witness & the same was adjourned at the instance of the accused as the accused wanted to delay the culmination of trial.

After hearing the submissions, the Court considered the question, whether, the application under Section 311 of CrPC filed by the petitioner, ought to have been allowed for recalling the complainant/witness for cross- examination.

The Court observed that, "The right to cross-examine a witness, vested in the prosecution/accused during the course of criminal trial, is an infallible right which cannot be withered away except in accordance with law. In case, the cross-examination of a witness could not be aptly undertaken by the prosecution/accused, such side would be well within its right to seek recall of such witness for further cross-examination in terms of Section 311 of Cr.P.C. on showing sufficient cause."

The innate nature of the provision of Section 311 of CrPC, when viewed with reference to the objective it seeks to achieve, empowers a Court to allow cross-examination of a witness even if such cross-examination was earlier foreclosed for any reason by a Court order. Same would be the analogy applicable to a case wherein the evidence on behalf of any rival side, in a criminal trial, is closed by Court order, added the Court.

However, it clarified that, "No straight jacket formulae can be enumerated regarding mode, manner and extent of exercise of power under Section 311 of Cr.P.C by a criminal trial Court as every case has its own unique facts/circumstances. It is neither possible nor pragmatic to lay down any such exhaustive guide- lines as every case is sui generis in terms of factual conspectus."

In the present case, the judge noted that the witness, who was also the complainant in the case was examined in- chief in August, 2023. After that on three dates of hearing, the said witness could not be cross-examined "for one reason or other much less on account of any folly on part of the accused". Even costs were imposed upon her on account of her non-appearance.

Adding that the witness, whose cross-examination is sought to be conducted by the defence, is the prime prosecution witness being the complainant of the FIR as also the victim, the Court opined, "The cross- examination of this witness is indeed pivotal to defence side."

Consequently, the Court allowed the plea and directed the trial court to afford one clear opportunity to the petitioner for cross-examination of the witness sought. "This shall, however, be subject to payment of Rs.5,000/- as costs to be paid to the District Legal Services Authority..."it added.

Citation: 2024 LiveLaw (PH) 61

H.S. Sandhu, Advocate for the petitioner. Adhiraj Singh Thind, AAG Punjab.

Vikas Gupta, Advocate for respondent No.2.

Title: XXXX v. XXXX