Section 311 CrPC | Power To Recall Witness Must Be Invoked When It Is Essential For Just Decision : Supreme Court

The Supreme Court recently allowed an application filed by a witness under Section 311 of the Code of Criminal Procedure seeking to call him again for examination. The Court allowed the plea taking note of the fact that in his initial deposition, there was no occasion for him to bring on certain facts, which became relevant after the examination of the expert witness. 

The Court quoted a precedent which held that the the power under Section 311 CrPC should be invoked when ‘… it is essential for the just decision of the case.’

The Court reiterated the established position of law that Section 311, (Power to summon material witness, or examine person present) of the Code of Criminal Procedure, 1973 (CrPC), should be invoked only for the ends of justice and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice.

The Bench, comprising Justices Ahsanuddin Amanullah and S.V.N. Bhatti, was hearing the present appeal which was filed against the impugned order passed by the High Court of Punjab & Haryana at Chandigarh. In its impugned order, the Court rejected appellant’s application under Section 311, (Power to summon material witness, or examine person present) of the Code of Criminal Procedure, 1973 (CrPC), for his recall to be further examined as a witness.

Case Background

In the present case, appellant made a complaint against the accused that they, being ex-employees of his company, had stolen company data and used such data to manufacture equipment, which was being manufactured by the appellant’s company. During trial, before the Report from the Central Forensic Sciences Laboratory, Chandigarh (CFSL) could come, the evidence of the appellant was recorded. However, when the CFSL expert who had prepared the Report was examined by the Court, though he described the data which was found on the hard disk(s) of the accused, but there was no reference as to whether they were comparable to/same in regard to what was allegedly stolen from the appellant’s company. Thus, under the circumstances, the appellant applied for his recall as a witness. The same having been rejected, by the Trial Court and the High Court, the matter is before this Court.

Contentions of the Parties

Counsel, appearing for the appellant, submitted that there was no previous occasion for him during the course of the trial to put any question with regard to comparison of data. It was further contended that the comparison of the two sets of data was the main essence of the complaint and without the same, the trial itself would be reduced to a farce.

On the other hand, counsel, appearing for the respondents, argued that the appellant cannot be, and should not be allowed to, fill up the lacunae left in the earlier round, at the current stage.

Court’s Observations

At the outset, the Court cited catena of judgments wherein it has been made clear that the discretionary power under Section 311 of the CrPC, can be invoked only to meet the ends of justice.

In Vijay Kumar v. State of U.P., (2011) 8 SCC 240, the Court while explaining scope and ambit of Section 311 has held as under:

“Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.”

In Zahira Habibullah Sheikh v. State of Gujarat (2006) 2 SCC (Cri) 8, the Court, while considering the concept underlying under Section 311, held:

“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.”

Further, in Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, the Apex Court emphasised that a discretionary power, like under Section 311of CrPC, is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328, wherein the Court held:

“It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.”

Based on these observations, the Court found that a case for interference has been made out.

“Under the peculiar facts of the present case, the request for recall of the appellant under Section 311, CrPC was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined.”

Further, the Court was also of the opinion that if opportunity is given for re-examination, respondents no.2 to 9 will not be prejudiced as they will have ample opportunity to cross-examine the appellant.

Therefore, allowing appellant’s recall application, the Court directed the trial Court to consider the same within six weeks from the date of order.

Case Title: Satbir Singh V. State of Haryana & Ors

Citation : 2023 LiveLaw (SC) 743; 2023 INSC 786

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