Section 311 CrPC Application Cannot Be Dismissed Merely On The Ground That It Will Lead To Filling In Loop Holes Of Prosecution Case: Supreme Court

The Supreme Court observed that an application under Section 311 CrPC cannot be dismissed merely on the ground that it will lead to filling in the loop holes of the prosecution's case. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case and is not constrained by the closure of evidence, the bench comprising Justices DY Chandrachud and AS Bopanna observed. An advocate was found brutally murdered outside his office on 18 November 2015. Five accused were arrested. The Sessions Court rejected an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of accused on the following grounds: (i) The document which the prosecution desired to summon does not form a part of the investigation; and (ii) The document has not been obtained during the course of the investigation. The trial court also recorded that the evidence of the prosecution stood closed. The High Court upheld this order. The spouse of the deceased lawyer approached the Apex Court challenging these orders.Before the Apex Court, the accused raised objections regarding maintainability of the appeal at the behest of spouse of the deceased. In this regard the court noted that the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way, the court held.The court then examined the scope of Section 311 CrPC which provides that the Court "may" (i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine any person who has already been examined. It made the following observations:"This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person " if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall" summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.The broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifestThe bench thereafter dealt with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. The court observed:In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence... ...The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty...

Section 311 CrPC Application Cannot Be Dismissed Merely On The Ground That It Will Lead To Filling In Loop Holes Of Prosecution Case: Supreme Court

Ashok KM

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