The Criminal Trial is conducted before the Trial Court per the Criminal Procedure Code, 1973 provisions. It is humanely possible that, while conducting any trial or proceedings under the law for that matter, Civil or Criminal Proceedings, it may arise that, key witness has not been examined or important evidence has not been tendered during the proceedings, which may ultimately prejudice the interest of justice or any party to the proceedings. Under the Criminal Procedure, in order to address such a situation, Section 311 of Cr. P.C acts as a panacea for such a situation. Below is the text of Section 311 of Cr.P.C.
Section 311 of the Criminal Procedure Code, 1973 :
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.
The jurisdiction under section 311 of Cr.P.C can be invoked by the Trial Cout itself or on an application made in this respect invoking jurisdiction with a prayer to produce any evidence or issue summon to any witness. In n Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, the Hon. Apex Court held that, at para 14 and 15 as follows:
“14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.The very use of words such as ‘any Court’, ‘at any stage’, or ‘or any enquiry’, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)”
It is pertinent to note that, the jurisdiction u/s 311 Cr.P.C has to be invoked very carefully, while ensuring that, none of party be negatively prejudiced. Certainly, the the power u/s 311 or Cr.P.C cannot be invoked to correct mistakes either by the prosecution or by the Defense. The Trial Court need to satisfy itself that, any application u/s 311 Cr.P.C is not made correct the lacuna in evidence, which was already pointed out by either side before the Trial Court.
Hon. Bombay High Court in Nayna Rajan Guhagarkar vs The State Of Maharashtra on 13 July, 2021 in Criminal Writ Petition:.1658 OF 2021 has held that at para 6 as follows:
6 No doubt, under Section 311 Cr.P.C, any Court may, at any stage of any inquiry, trial or other proceeding 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, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to filling up the lacunae in the case. It would also result in causing serious prejudice to the petitioner.
The jurisdiction and exercise of power u/s 311 of Cr.P.C cannot be exercised mechanically by the Trial Court. It must be borne in mind, that section 311 provides a pathway to depart from the regular course of trial and allow an opportunity to either party to bring in a witness or to produce any evidence. The onus is also cast upon the Court to ensure that when any production is allowed u/s 311 Cr.P.C, an adequate and fair opportunity must be accorded to the other side to refute the evidence or to cross-examine the witness.
