Section 311 of Code of Criminal Procedure says:
“311. Power to summon material witness, or examine person present. – Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine 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.”[1]
Besides the above specific provision under the Cr. P.C. empowering the criminal and civil Courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani v. State of Maharashtra[2], these two sections between them confer jurisdiction on the Judge to act in aid of justice.
Section 165 of Indian Evidence Act 1872 says:
“The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India[3] this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.”[4]
Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words ‘to be’ before the word ‘essential’ occurring in the old Section. This section is manifestly in two parts. Whereas the word used in the first part is ‘may’ the word used in the second part is ’shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it ‘at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely,
(1) to summon any person as a witness, or
(2) to examine any person in attendance, though not summoned as a witness, or
(3) to recall and re-examine any person already examined.
The second part which is mandatory imposes an obligation on the Court-
(1) to summon and examine, or
(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
The very usage of the words such as, ‘any Court’, ‘at any stage’, or of ‘any enquiry’, trial or other proceedings, ‘any’ person and any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.
The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The exercise of jurisdiction under Section 311 Cr.P.C. for examining the witnesses can be in the interest of justice only. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India[5] this Court has observed, while considering the scope and ambit of Section 311, Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. [6]
Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading ‘General Provisions as to Enquiries and Trials’.
This section leaves a very wide discretion with the Court to summon and examine any witness at any stage of the proceedings, yet these are required to be exercised with caution and only when the exigency of justice require that too with circumspection and consistent with the provisions of the Code.
Fazal Ali, J. in Rameshwar Dayal V. State of U. P.[7] while expressing his views about the careful exercise of its power by the Court has stated:
“It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise…………….. The words, “Just decision of the case” would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play”.
In State of West Bengal v. Tulsidas Mundhra[8] it was observed:
“It would be noticed that this section confers on criminal Courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.”
It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution (as was held in Mohd. Iqbal Ahmad v. State of Andhra Pradesh[9]) or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The basic requirement in his regard would remain the `just decision’ and the discretion of the court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.”[10]
Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory – according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. [11]
The powers under Section 540 of the old Code, wide though they may be, must not be exercised to the disadvantage of the accused particularly after his defence is over. Hon’ble Supreme Court observed that it is difficult to limit the powers under the Code to the cases which involve something ex improviso which no human ingenuity could foresee in the course of the defence. Hon’ble Supreme Court further observed that our Code does not make this a condition of the exercise of powers and that it would not be right to embark on judicial legislation. As per the Hon’ble Supreme Court, it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris case obtains, the powers of the Courts have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision.
In the case of Sasi Thomas v. State, (SC)[12] it was held that the Trial Court even is not powerless. It, if a case is made out, can exercise its discretionary jurisdiction under Section 311 of the Code of Criminal Procedure as also Section 391 thereof. In the event of open marshalling of the evidence, it comes to the opinion that a case has been made out for alteration of charge, it indisputably can do so in exercise of its power under Section 311 of the Code of Criminal Procedure.
The question which arose in Rameshwar Dayal’s case[13] was whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under S. 540 and this court answered that question:
“It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under S. 540, Cr. P. C. This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice. Section 540 itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem…………. A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under S. 540 of the Cr. P. C.”
This view was taken by various High Courts such as in Channu Lal v. R[14], Rengaswami Naicker v. Muruga Naicker[15], Shugan Chand v. Emperor[16], and The Queen v. Assanoollah[17]. The views expressed in the judgments of the various High Courts have been approved by this Court in Rameshwar Dayal’s’case (AIR 1978 SC 1558). Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity, to rebut that evidence brought on record against him.
A decision of this Court in Mir Mohd Omar v. State of West Bengal[18] was relied upon to show that after the examination of the accused under S. 313 of the new Code (corresponding to S. 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under S. 272 of the Code and that decision does not deal with the ambit of S. 540 of the Code.
[1] Hari Singh v. State of Haryana, (P&H)
[2] (1967) 3 SCR 415 : (AIR 1968 SC 178)
[3] 1991(Sup1) S.C.C. 271
[4] Mahavir v. State of Haryana, (P&H) 2005(1) R.C.R.(Criminal) 75
[5] 1991(3) RCR(Criminal) 182 : (1991 Supp (1) SCC 271)
[6] Himanshu Singh Sabharwal v. State of M.P. , (SC)
[7] (1978) 2 SCC 518 : (AIR 1978 SC 1558)
[8] (1963) 2 SCJ 204 at 207 : (1964 (1) Cri LJ 443 at p. 446)
[9] AIR 1979 Supreme Court 677
[10] Harnam Singh v. M/s. Bhushan Metallics Ltd., (P&H) 2007(1) R.C.R.(Criminal) 992
[11] Himanshu Singh Sabharwal v. State of M.P. , (SC)
[12] 2007(1) R.C.R.(Criminal) 695
[13] (AIR 1978 SC 1558)
[14] AIR 1949 All 692
[15] AIR 1954 Mad 169
[16] AIR 1925 Lahore 531
[17] 13 SWR (Cri) 15
[18] 1989(2) RCR(Cri.) 346 : (1989) 4 SCC 436 : (AIR 1989 SC 1785)
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