SECTION 311 of CRPC: When recall of witnesses are permitted

The criminal trial entails meticulous examination and cross examination of witnesses both in F.I.R cases or in complaint cases. It is so, because, on the premise of the testimony of witnesses, the fate of the case hangs in balance. The procedure is detailed in the Criminal Procedure Code (Cr.PC and now under Bhartiya Nagrik Suraksha Sanhita (BNSS). As we are currently concerned with section 138 of Negotiable Instruments Act complaints, therefore, the discussion in the context shall revolve around that. The parameter of applying section 311 of Cr.PC (Correspond to Section 348 of BNSS) is however similar. After the order of summoning of accused by the Magistrate, accused enters appearance and the complainant in summon cases shall have to present himself for examination and cross examination. After the examination of complainant and cross examination concludes and after the closure of complainant evidence, the statement of accused u/s 313 shall have to be undertaken, followed with defence evidence, if at all, the accused seeks to examine some defence witnesses and present such witnesses for cross examination. It is often seen however that during examination of defence witnesses, the accused seeks recall of complainant witness or witnesses for further examination. The need arises owing to variety of reasons that however shall be deliberated later. The moot point is when and in what manner the complainant witness could be recalled for cross examination. It is also observed that even complainant at alter stage seeks to examine their witnesses again. Though, there is no embargo in that regard, still, that is unusual.

Before going further, the provision as contained in section 311 Cr.PC is reproduced as under:

“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 ambit of section 311 of Cr.PC and circumstances when it could be invoked is being dealt with herein. The Delhi High Court, recently in a matter reported as Rahul Darbari v. Arun Kumar Khobragade and Ors. (2024) ibclaw.in 272 HC (CRL.M.C. 1171/2022 & CRL.M.A. 5067/2022).

Without detaining on the facts of the case, the petitioner/complainant filed the application under Section 311 of the Cr.P.C. wishing to place on record copies of the petitions filed by the accused/respondents herein under Section 482 of the Cr.P.C. before the High Court, along with the documents filed therein; the counter affidavit(s) and the rejoinder(s) filed in those proceedings; copy of the Order dated 18.02.2019 passed by the High Court passed in the said petitions; and e-mail correspondences between the complainant and the accused, which, to the own assertion of the petitioner, formed part of the counter(s) filed to the petitions by the respondents herein before the High Court.

The trial court had dismissed the application u/s 311 of Cr.PC and the said order was Impugned before the high court. It was contended that the documents that are now sought to be produced on record, are one of the petitions filed earlier by the respondent, between the same parties along with the counter affidavit(s) and the rejoinder(s) filed therein; and the Order dated 18.02.2019 passed by the high court. It was further contended that the same being matter of record, should be allowed to be placed on record and should be considered by the learned Trial Court in order to have a complete and fair adjudication of the complaint filed by the petitioner. It was the case of the complainant that the best available evidence should be allowed to be brought before the Court, and even if mistakes crept in, the opportunity of curing that should be permitted. Further, it was submitted that Section 311 of the Cr.P.C. needs to be read along with Section 165 of the Indian Evidence Act, 1872, and it is the duty of the court to seek production of documents, in order to discover or to obtain proper proof of the relevant facts

RELIANCE BY THE COMPLAINANT/PETITIONER

1. U.T. of Dadra & Nagar Haveli and Anr v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529;

2. Varsha Garg v. The State of Madhya Pradesh and Ors. 2022 SCC OnLine SC 986;

3. Iddar and Ors v. Aabida and Anr. (2007) 11 SCC 211;

4. Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19;

5. Central Bureau of Investigation v. Abhishek Verma, 2023 SCC OnLine Del 724.

6. Fatehsinh Mohansinh Chauhan v. Union Territory of Dadra and Nagar Haveli, 2003 SCC OnLine Bom 207 ( Bombay High Court);

7. Boby @ Sanjeev Singh v. State of Madhya Pradesh and Anr., 2010 SCC OnLine MP 582 ( Madhya Pradesh High Court);

Further reliance was placed on Inayat v. Rex 1949 SCC OnLine All 110 (Allahabad High Court) to the effect that even if the first application filed by the petitioner under Section 311 of the Cr.P.C. was withdrawn or was even rejected on merits, it would not bar the filing of the second/subsequent application for the same relief. The scope of Section 311 of the Cr.P.C. is wide and is to be exercised in the interest of justice; it could be both in favour of and against the accused. Moreover, even if some evidence is inadvertently left out, such evidence should be allowed to be brought on record to find out the truth. Reliance in the context was placed on Smt. Fatima Hyder v. State of M.P. & Ors. Misc.Cri.C.No. 2812 of 1992, Judgment dated 08.09.1992 Madhya Pradesh High Court), Kesava Pillai and Ors. v. Emperor, 1929 SCC OnLine Mad 111 (Madras High Court) & State of Sikkim v. Pemba Sherpa, 1980 SCC OnLine Sikk 7 (Sikkim High Court).

RESPONDENTS/ACCUSED PLEA

(1) That the petitioner had earlier also filed an application under Section 311 of the Cr.P.C., seeking leave to place on record the very same documents, except the Order dated 18.02.2019 of the High Court, that are now sought to be placed on record by the application in question. The said application was withdrawn by the petitioner,

(2) Only on the conclusion of the evidence, and when the complaint cases were fixed for final hearing before the learned Trial Court, that the petitioner again moved the present application seeking to place on record the very same documents.

(3) The trial in the above complaint cases has been pending since the year 2015 and the petitioner wishes to re-open the whole trial.

RELIANCE BY THE RESPONDENT

(i) Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461;

(ii) Natasha Singh v. CBI, (2013) 5 SCC 741;

(iii) Nayna Rajan Guhagarkar v. The State of Maharashtra 2021 SCC OnLine Bom 1054; (Bombay High Court);

(iv) Karthik S Nair v. State of Kerala and Anr., 2023 SCC OnLine Ker 6847, (Kerala High Court)

It was thus contended that the application cannot be allowed at this stage.

It is held by the Delhi High Court in Rahul Darbari (Supra):

“25. Section 311 of the Cr.P.C. is a salutary provision which empowers the Court to 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 his evidence appears to it, to be essential to the just decision of the case. It is aimed at empowering the Court to find out the truth and to render a just decision. The object of the provision is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. Having said that, it is to be kept in mind that this power is discretionary, and is to be exercised only for strong and valid reasons, and with caution and circumspection. Recall of a witness cannot be a matter of course. Recently, in Satbir Singh v. State of Haryana, 2023 SCC OnLine SC 1086, the Supreme Court carried out a study on the precedents on Section 311 of the Cr.P.C., as under:

“9. Section 311 of the Criminal Procedure Code, 1973 (hereinafter referred to as the “CrPC”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v. Prahlad Jat, (2017) 9 SCC 340: ’

17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons 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. Therefore, the reasons for exercising this power should be spelt out in the order”.

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

“17. 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.”

19. In Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court has considered the concept underlying under Section 311 as under : “27. 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. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”

20. In State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402, it was held thus :

“… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including un-called for hardship to the witnesses and un-called for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.”

In Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 the Supreme Court had held as under:

’10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. 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.

The Delhi High Court in Rahul Darbari (Supra) has held as under:

“However, the question before this Court is whether the said proposition of law in any manner supports the plea of the petitioner in the facts of the present case. The answer, in my view, has to be in the negative.

27. As is evident from the above narration of facts, the petitioner seeks to place on record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr.P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr.P.C., sought to bring on record the documents that are now being sought to be brought on record by way of the application in question. The said application was withdrawn by the petitioner on 23.10.2019. The petitioner has not sought to explain the reason for withdrawing the said application, nor submitted any change in circumstances that would justify a new application with the same prayer to be filed afresh.

 29. Similarly, in Boby @ Sanjeev Singh (supra), the High Court of Madhya Pradesh, in fact, reiterated that successive applications for recall of a witness under Section 311 of the Cr.P.C. are not maintainable”.

The Delhi High Court, therefore, in Rahul Darbari (Supra) has held as under:

30. Coming back to the facts of the present case, after the dismissal of the first application filed by the petitioner under Section 311 of the Cr.P.C., the evidence of the petitioner got concluded and was closed on 03.03.2020 by the learned Trial Court. The statement of the respondents under Section 313 of the Cr.P.C. was recorded on 10.12.2021, and as they did not wish to lead any evidence in defence, the Complaint Cases were fixed for final hearing. It is only at this belated stage, that the petitioner filed the application in question. There is absolutely no justification given in the application for the delay in filing the same.

31. The application in question in the present case has been, admittedly, filed at a belated stage. It appears to be an afterthought. It only makes vague averments, and is also bereft of any explanation with regard to such delay. The learned Trial Court has also correctly observed that the petitioner has failed to file such documents with the complaint(s) itself or at an earlier and appropriate stage, even after being in possession of the said documents. There is also no explanation in the application in question with regard to the withdrawal of the earlier application seeking similar relief”.

The Delhi High Court in Rahul Darbari (Supra) has further held as under:

32. It is to be kept in mind that the accused also has a right to an expeditious conclusion of the trial, for mere pendency of a case accusing a person of a criminal offence can attach stigma and cause embarrassment. Reference in this regard can be made to the judgments of the Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352 and Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291. The right of the accused cannot be defeated with the complainant choosing to appear as a witness and file documents at his own terms and only when it is convenient to him.

33. It is also to be kept in mind that the proceedings in a complaint case under Section 138 of the NI Act are ordinarily to be conducted as a summary trial. The object of the provision being expeditious disposal of such cases, allowing the application of the petitioner to place on record the said documents would amount to re-opening the trial and would derail the proceedings which have already been dragged on for over seven years and will defeat the very purpose and object of the provision. Reference in this regard can be made to directions issued by the Supreme Court in its judgment in Expeditious Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC 116.

34. Another important consideration which weighs with this Court is that, as held by the Supreme Court in P. Mohanraj v. Shah Bros. Ispat (P) Ltd., (2021) 6 SCC 258, an offence under Section 138 of the NI Act is almost in the nature of a civil wrong which has been given criminal overtones. It can be said to be a ‘civil sheep‟ in a ‘criminal wolf’s clothing’, as it is the interest of the complainant/victim that is sought to be protected, the larger interest of the State being subsumed in the complainant/victim alone moving a court in cheque bouncing cases. It was further observed that it is really a hybrid provision to enforce payment under a bounced cheque. The Supreme Court has clarified that the gravity of proceedings under Section 138 of the NI Act cannot be equated with an offence under the Indian Penal Code, 1860, or other Criminal Statutes. If that be the nature and intent of the provision, with the complainant running the prosecution rather than the State, Section 311 of the Cr.P.C. should be more strictly applied against the Complainant. If the documents were in the possession and control of the Complainant, and the Complainant still chooses not to file the same at the earliest opportunity (if not with the complaint itself), the same should not be allowed to be filed at such a belated stage. This would protract the Complaint Case(s) endlessly and would defeat the rights of the accused, who, instead of or in addition to civil proceedings, is facing a criminal prosecution. Even under the Commercial Courts Act, 2015, such a belated application to file additional documents in a Commercial Suit, would be liable to be dismissed only on the ground of delay”.

The petition u/s 482 of Cr.PC seeking setting aside of application u/s 311 of Cr.PC was therefore dismissed by the High Court in Rahul Darbari (Supra).

Section 311 Cr.PC (Analogous to Section 348 of BNSS) has been a salutary provision with  a view to do complete justice and the documents if left out in the course of examination of witnesses, earlier, due to the fact that it was not in power and possession of a party who were to produce it earlier and that the documents being vital shall be necessary to be put on record for just decision in case and still further no prejudice is to be caused to the other party and there is no unreasonable delay in preferring the application that the application under section 311 of CR.PC could be taken recourse to and not otherwise. The application in mala fide pursuit and with a view to cause delay and gaping the holes of the case cannot be permitted.

It is to be borne in mind that the provision as contained in section 311 Cr.PC (Analogous to Section 348 BNSS) is a necessary clog in the wheel of criminal trial and may act as necessary adjunct with a view to ensure complete justice , but invocation of the application ritualistically and as an afterthought and to cause further delay with a view to inflict misery on the other party cannot be allowed.

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                             Anil K Khaware

Founder & Senior Member

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