Every criminal trial is a voyage of discovery in which truth is the quest.

Introduction

The right to a free and fair trial is a human right, and therefore, is a sin qua non of Article 21 and Article 14 of the Constitution of India. The very objective of the Criminal Procedure is to ascertain the truth and dispense justice through an impartial and fair trial. The concept of a fair trial is not exclusive to the accused in a case, but also equally entails the interest of the victim and society at large. Therefore, a trial is considered fair when it is conducted in a manner that does not exhibit injustice, favouritism, prejudice, and dishonesty towards either of the parties.

Section 311 of the Criminal Procedure Code, 1973, which is verbatim of Section 540 of the old Criminal Procedure Code, reflects the ideology towards the indispensability of fair trial. It reads as :

“Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceedings 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.”

It has been observed by the SC in Iddar v. Aabida & Anr., that the underlying objective of the Section is to prevent failure of justice preventing the failure of parties to submit valuable evidence or by preventing ambiguity is a crucial statement of a witness, which is essential to reach a just decision of the case. The Section also derives its authority from the principle that best available evidence should be presented before the Court to prevent the judgment from being rendered as inchoate, inconclusive, and based on speculative facts.

In pursuance of the object, the Section is divided into two parts. Wherein, the first part provides the judges with the wide discretionary power to allow any application to summon or recall any witness; the second part creates an obligation upon the Court to summon for evidence which it thinks is necessary for a just decision. The power under the provision is not limited and exclusively available to the advantage of the accused but also caters to the interest and benefit of prosecution.

However, the power under the Section is unbridled and undefined under the Code and has to be applied considering the facts and circumstances of each case.  Further, it can be used at any stage of the trial. Therefore, the Section is prone to be misused. To be specific, it is contended that many lawyers tend to misuse the provision to elongate or delay the trials, thus steering away from the concept of fair and speedy trial, leading to injustice. Hence, it becomes vital for the Courts to separate the grain from the chaff, in the sense that the power under this Section has to be applied on some acceptable principles that help in retrieving the truth of the case.

The jurisprudence of the Section in the absence of defined rules has to be traced through the judicial decisions which from time to time have defined the principles on which the wide discretionary power has to be exercised by the Courts, thus, striking a balance between the views that enlarge and constrain the scope of the provision, to curtail the abuse of the law and reach the ultimate objective of determining the truth.

In this context, the author aims to trace the conundrum attached with the Section, and the judiciary’s innovation to prevent the misuse of this remedy. For this purpose, the author aims to analyse the various judgments and guidelines formed by the Courts, that the parties must keep in mind while invoking the Section.

Misusing the Section to Fill the Lacuna

Firstly, the application under the provision cannot be used by the parties to fill up the lacuna in the case. The SC in Rajendra Prasad v. Narcotic Cell, has defined the lacuna “to be an inherent weakness in case matrix of either party which is irreparable, and one which causes prejudice to any parties by providing an unfair advantage to the opposite party, but it does not include an oversight in management.”

The same definition was approved in the case of Natasha Singh v. CBI. An example of filling up of lacuna is the inclusion of new evidence which substantially changes the nature of trial or presses for a retrial, and therefore, should not be allowed. In UT of Dadra & Nagar Haveli v. Fateh Singh Chauhan, interpreting the Rajendra Prasad judgment, the Court held that recalling of a witness by the prosecution for cross-examination cannot be held to be filling up of lacuna when the defence has kept behind the best available defence, who in that case was an eyewitness. The prosecution can apply under the provision even if the evidence on both sides is closed, if the evidence is material, and essential for justice to be dispensed with.

However, an obligation is placed on the Court to ensure that the prosecution must not act as the defence counsel and any application for cross-examination is to be made within a reasonable time, for neither the witness nor the accused must not suffer due to the lethargy of the prosecution or the State. Therefore, in Swapan Kumar Chatterjee v. CBI, the SC, while rejecting the prosecution’s plea to summon a handwriting expert as a witness whose attendance has not been recorded for a decade, after several successive applications, held that successive applications to recall a witness should not be encouraged.

It was further observed that wherein the prosecution, before closing its evidence, has not examined a particular witness and the reasons therein are not satisfactory, calling the witness under the provision at a later state causes great prejudice to the accused and should not be allowed. Similarly, in a recent case, MPHC rejected the application of the prosecution under the provision to substitute a witness who was more favourable for the prosecution’s case, and thus, would substantially prejudice the accused, noting that such application, if successful could open a floodgate in future and possibly subterfuge the principle of speedy trial.

Balancing the Rights of the Accused vis-à-vis the Rights of the Victim

Secondly, it has been noted that in an adversary system, a trial is basically for the prisoners,  and therefore, the accused should be given the fairest opportunity to prove his defence and innocence. In P Sanjeeva Rao v. State of Andhra Pradesh, “though it was recognised that delay takes a heavy toll on the memory of the witness, it was held that granting of opportunity to cross-examine a witness by the defence was sacrosanct of justice and cannot be denied even at a possible cost of prejudice to the prosecution.”

It has been further held in various judgements that the Courts should adopt a magnanimous approach while taking in applications under the Section. As such, in Manju Devi v. State of Rajasthan, it was observed that an application under Section 311 could not be declined only on the basis that proceedings have been pending for an inordinate period which was 10 years in that case. These judgments, therefore, have enlarged the scope of the provision, and in all possibilities bear the capabilities of being misused in the garb of a fair trial, causing serious prejudice to the victim whose cries remain unheard.

However, at the same time, recognising the agony faced by the witnesses, in Vinod Kumar v. State of Punjab, the Court observed that despite the statutory command of Section 309, which compels for cross-examination of a witness on the same day, unnecessary procrastination and adjournments are applied by the counsels for delaying the trial. Developing on this, in Gurnaib Singh v. State of Punjab, the Court observed that it is the sincere duty of the Courts to ensure that advocates should not violate the principles of a fair trial “by taking recourse to the subterfuges for procrastinating the same.”

In furtherance of this, it was observed by the Apex Court that the application by the defence to examine or cross-examine a witness should be made in reasonable time and any delay has to be explained with substantial and tangible reasons. Therefore, in State of Haryana v. Ram Meher, wherein application was made by the defence under Section 311 citing the illness of previous defence counsel was rejected, reasoning that the principle of magnanimity does not find its basis on any fanciful notion but has to be applied on judicially accepted principles. The Court in this case emphasised upon the doctrine of balance while dealing with the application under the Section.

Similarly, in AG v. Shiv Kumar, the defence’s petition was rejected on the ground of mere change in counsel, reasoning that the defence cannot take make the plea of incompetency of previous counsel when he was appointed by the defence himself. In a recent judgment by Madras High Court, the Court, noting the importance of a fair trial, observed that the defence counsel cannot cross-examine the witness at his whims and fancies, because due to passage in time, a discrepancy in the evidence of witness can be observed which can provide undue advantage to the accuse. Therefore such calling of witness in a casual manner should be discouraged.

Call for Additional Evidence

Thirdly, the second part of the provision, which places an obligation on the Court to call additional evidence, is also based on the sound judgment of the Court. This part works in conjunction with Section 165 of the IEA. In Mohanlal Shamji Soni v. Union of India, it was observed that the Court does not have the power to compel either the prosecution or defence to produce best available evidence or witness before the Court, however, if it considers in the interest of justice, it can summon a witness, which is then called as a witness of the Court.

It was further held in Rajaram Prasad v. State of Bihar, that power under the second part should be exercised only if the Court feels without that additional evidence, there would be a failure in achieving justice, and not because it would be difficult to pronounce the judgment of the case. In UT of Dadar & Nagar Haveli case, it was observed that in the case, whenever the Court finds that any evidence which is essential for this has not been examined and admits it, “what is sometimes thought to be the filling of loopholes, is a purely subsidiary factor and cannot be taken into account.”

In pursuance of a fair trial, it has been held when a Court admits additional evidence within the second part, a right of rebuttal has to be given to the opposite party. Further, in Jamatraj Kewalji case, it was held that “the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court’s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.”

A Way Forward

The power under Section 311 of CrPC is not based on a rigid and straight jacket formula. Rather, it is based on abstract judicial principles. Although the Section, due to its fluid students, is prone to misuse, it forms the core instrument in the pursuit of finding justice through the medium of a fair trial.

The centripetal purpose of the Section is to ensure injustice is avoided when a trial is conducted. Nonetheless, it has been observed by the Courts time and again that, “fair trial cannot be limitlessly stretched to have no boundaries so that systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged.”

The Courts, hence, bear a huge obligation that powers under the Section are exercised cautiously, and judiciously. Hence, the misuse of the remedy by counsels makes the task of delivering justice extremely difficult for the Courts. A solution to this conundrum could be more involvement of the Judges in a trial, and considering India has both inquisitorial and adversarial qualities, the same should flow smoothly.

One could also infer the same from the case of Ram Chander v. State of Haryana, where it was held that to deliver justice effectively, a Judge must cease to be a mute spectator, and participate in the trial by putting questions before the counsels and witness. The discretionary power under the Section comes with the responsibility on the Court to ensure neither the prosecution nor the accused play truancy with the trial by conducting themselves in a manner, that results in a miscarriage of justice, such as delaying the trials under the garb of the “finding the truth,” and as a consequence, the trial becomes a farcical one.


About the Author, Ujjwal Sharma [2019-24] is pursuing BALLB from Jindal Global Law School, O.P. Jindal Global University, Sonipat. His interest lies in Criminal and Environmental Law.

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