Case Note & Summary
The High Court of Judicature at Bombay dealt with a criminal application under Section 482 of the Code of Criminal Procedure, 1973, filed by the accused challenging an order of the Additional Sessions Judge that permitted the prosecution to examine a witness under Section 311 CrPC. The dispute arose from an incident on 6 January 2013, when the complainant, a secretary of a housing society, alleged that the accused, the chairman, abused, threatened and slapped her after a general body meeting resolved to supersede the managing body. An FIR was registered under Sections 354, 509, 504 and 506 of the Indian Penal Code, 1860. The charge-sheet cited four witnesses, including the complainant, investigating officer, and two eye witnesses, one of whom was Pushpa Baban Mhaske. Her statement under Section 161 CrPC was recorded on 22 January 2013, but despite summons issued on 3 August 2017 and 30 October 2017, they could not be served, and though informed on 19 December 2017 to remain present, she was not examined. The complainant moved applications on 12 July 2019 and 22 January 2020 under Section 311 CrPC to examine Pushpa Baban Mhaske as a prosecution witness, which the State supported. The trial court rejected the applications, noting that the witness had been summoned on five occasions but remained absent, the prosecution did not take appropriate steps to secure her presence, and the application was made at the stage of final arguments. The complainant carried the matter in revision before the Sessions Court, which allowed the revision and permitted the prosecution to examine the witness. The accused then approached the High Court under Section 482 CrPC. The High Court, after hearing the parties and perusing the orders and notes of evidence, observed that the object of Section 311 CrPC is to do justice from the point of view of the accused, prosecution and victim, but the power must be invoked only for strong and valid reasons with caution and circumspection. The court noted that the prosecution had not shown that the witness would bring fresh evidence; instead, her testimony would merely corroborate the complainant's evidence. The court also found that the application was moved at a belated stage, after the accused's statement under Section 313 CrPC was recorded and after written arguments were filed. Although there is no absolute bar to moving an application at that stage, the prosecution had not put forth strong and valid reasons. Consequently, the High Court quashed and set aside the impugned order of the Additional Sessions Judge permitting the prosecution to examine Smt. Pushpa Baban Mhaske, allowed the application under Section 482 CrPC, and made the rule absolute in terms of prayer clause (b).
Headnote
A) Criminal Procedure - Summoning of Witness - Exercise of Power - Code of Criminal Procedure, 1973, Section 311 - The court held that powers under Section 311 CrPC must be invoked only for strong and valid reasons with caution and circumspection, and although there is no bar to summon a witness at any stage including final arguments, the prosecution must show that the evidence is essential for a just decision - In this case, the proposed witness was cited as an eye witness but would only corroborate the complainant's testimony, and the application was moved at a belated stage without strong and valid reasons - Held that the order permitting examination was unsustainable and quashed (Paras 5-6). B) Criminal Procedure - Quashing of Revisional Order - Section 482, Code of Criminal Procedure, 1973 - High Court's inherent power - The High Court can quash a revisional court's order permitting examination of a witness under Section 311 if it was passed without considering the lack of strong and valid reasons and belated stage - Held that the Additional Sessions Judge's order was set aside and the application under Section 482 was allowed (Paras 3, 6-8).
Issue of Consideration
Whether the Additional Sessions Judge was justified in allowing the prosecution to examine Pushpa Baban Mhaske under Section 311 of the Code of Criminal Procedure, 1973, despite the trial court's rejection and the belated stage of trial, and whether the prosecution had shown strong and valid reasons for summoning the witness.
Final Decision
The High Court quashed and set aside the order of the Additional Sessions Judge permitting the prosecution to examine Smt. Pushpa Baban Mhaske under Section 311 CrPC, and allowed the application under Section 482 CrPC. Rule was made absolute in terms of prayer clause (b).
Law Points
- Powers under Section 311 CrPC must be exercised only for strong and valid reasons with caution and circumspection
- The court can exercise powers under Section 311 CrPC at any stage of trial including final arguments
- An application under Section 311 CrPC must be allowed if fresh evidence is being produced to facilitate a just decision
- Evidence that merely corroborates the complainant's testimony may not be essential for a just decision
- Belated stage combined with lack of strong reasons can justify refusal to summon witness
