Case Note & Summary
The High Court of Judicature at Bombay heard a criminal writ petition filed by four accused persons challenging an order of the Additional Sessions Judge, Kalyan, which directed the Magistrate to record the evidence of the complainant after the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 had already been recorded. The petitioners were being prosecuted in Criminal Case No. 164 of 1995 under Sections 325 and 506 of the Indian Penal Code. Charges were framed on 30 September 1998. The prosecution examined four witnesses between 6 January 1999 and 26 April 2000, but despite repeated summons, the complainant did not appear. The Magistrate, on 6 September 2000, directed the prosecution to produce the complainant. Summonses were served, but the complainant failed to appear. An application for a non-bailable warrant was rejected on 8 November 2000, and that order was not challenged. The matter then proceeded, and the statements of the accused under Section 313 CrPC were recorded. Surprisingly, on 15 March 2001, the complainant appeared in court without any summons. The prosecution sought leave to examine him, but the Magistrate rejected the application. The prosecution then filed Criminal Revision Application No. 25 of 2001 before the Sessions Court, Kalyan. The Additional Sessions Judge, on 22 June 2003, allowed the revision, set aside the Magistrate’s order, and directed the Magistrate to examine the complainant. Aggrieved, the accused filed the present writ petition. The central legal issue was whether a criminal court could invoke Section 311 CrPC to permit the examination of a witness after the recording of the accused’s statement under Section 313 CrPC. The petitioners argued that once the defence was placed on record via Section 313, allowing further prosecution evidence would defeat the purpose of that provision and that the power under Section 311 must be exercised before the 313 stage. They also contended that the prosecution had shown no cause for the earlier non-examination and that the earlier order refusing a warrant had attained finality. They relied on Rajendra Prasad v. Narcotic Cell and State of Maharashtra v. Anand Namdeo Patil. The State countered that fair trial required the examination of the material witness; Section 311 empowers the court to summon a witness at any stage; the accused would have the opportunity to cross-examine and a further 313 statement could be recorded; and the earlier order refusing a warrant did not bar the prosecution from examining a witness who appeared voluntarily. Reliance was placed on Zahira Habibulla H. Sheikh v. State of Gujarat. The Court analyzed Section 311 CrPC, noting it consists of two parts: the first confers a wide discretionary power to summon, examine, or recall a witness at any stage, while the second part makes it mandatory when the evidence appears essential for a just decision. The Court emphasized that the phrase “at any stage of any inquiry, trial or other proceeding” is broad and that a criminal trial does not conclude until final arguments and, if desired, the accused’s examination under Section 315. The procedural provisions are meant to assist the court in arriving at a just decision, and interpreting Section 311 to exclude its application after Section 313 would defeat that purpose. The Court drew support from Mohanlal Shamji Soni v. Union of India and other Supreme Court decisions holding that the power under Section 311 should be exercised judiciously to prevent injustice. It distinguished Rajendra Prasad, noting it related to a special statute. The Court held that the earlier order refusing a warrant did not foreclose the prosecution’s right to examine the complainant when he appeared voluntarily. It found no prejudice to the accused, as they would have the right to cross-examine and have a further 313 statement recorded. Consequently, the impugned order was justified, and the writ petition was dismissed. The rule was discharged.
Headnote
A) Criminal Procedure - Summoning of Witnesses - Section 311 CrPC - Power exercisable at any stage, including after recording of statement under Section 313 - Held that phrase "at any stage of any inquiry, trial or other proceeding" is wide and trial does not conclude until final arguments and defence evidence; thus Section 311 can be invoked even after 313 statement to ensure just decision (Paras 7-9). B) Criminal Procedure - Fair Trial - Triangulation of interests - Fair trial includes interests of accused, victim and society; not only accused - Held that procedural provisions must be interpreted to further the just decision and fair trial, and denial of examination of material witness would cause injustice (Paras 5, 6, 9). C) Criminal Procedure - Examination of Witness Voluntarily Appearing - Earlier rejection of warrant for witness not a bar - Section 311 CrPC - Held that order refusing issuance of warrant against a witness does not preclude the court from allowing examination of the same witness if he appears voluntarily before the court; such order does not attain finality regarding the right to examine (Paras 5, 6, 9).
Issue of Consideration
Whether the criminal court can exercise power under Section 311 of the Code of Criminal Procedure, 1973 to allow examination of a prosecution witness after the statements of the accused under Section 313 have been recorded.
Final Decision
The High Court dismissed the writ petition and discharged the rule, holding that the Sessions Court's order directing examination of complainant was justified. The Court held that Section 311 CrPC allows summoning of witness at any stage, including after Section 313 statement, to ensure just decision. No prejudice would be caused to accused as they would get opportunity to cross-examine and have further 313 statement recorded. The earlier order refusing warrant did not bar examination of a witness who appears voluntarily. The petition was disposed of accordingly.
Law Points
- Legal points not extracted
- Section 311 CrPC empowers court to summon material witness at any stage of trial
- including after recording statement under Section 313
- to ensure just decision
- fair trial encompasses interests of accused
- victim and society
- interpretation of procedural provisions should not defeat object of just decision
- power under Section 311 is wide and discretionary in first part
- mandatory in second part when evidence appears essential
- failure to secure warrant does not bar examination of witness appearing voluntarily.
