Case Note & Summary
The petitioner, original accused No. 2 in Sessions Case No. 69/2015 pending before the Additional Sessions Judge, Jalgaon, was facing prosecution for offences punishable under Sections 302, 201 read with 34 and 120-B of the Indian Penal Code, 1860 for the murder of one Balu. During the trial, the prosecution examined Dagdu (PW-1), the brother of the deceased. In his examination-in-chief, PW-1 deposed that the petitioner had hired respondent Nos. 2 and 3 (original accused Nos. 1 and 3) to commit the murder. The petitioner sought to cross-examine PW-1 on certain new facts that emerged during his examination-in-chief, but the trial court rejected the application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) on 21/09/2016, solely on the ground that the application was filed belatedly and that the witness had already been cross-examined. Aggrieved, the petitioner filed the present criminal writ petition before the Bombay High Court. The High Court, after hearing the parties, held that the trial court had not considered the necessity of the evidence and had mechanically rejected the application. The court observed that the power under Section 311 CrPC is wide and can be exercised at any stage to secure a just decision. The court further noted that if new facts emerge during examination-in-chief, the accused has a right to cross-examine the witness on those facts. Accordingly, the High Court set aside the impugned order and directed the trial court to permit the petitioner to re-examine PW-1 on the points raised in the application, subject to payment of costs of Rs. 1,000 to the State.
Headnote
A) Criminal Procedure - Re-examination of Witness - Section 311 CrPC - The court held that the power under Section 311 CrPC is wide and can be exercised at any stage to secure just decision. The trial court rejected the application solely on the ground of delay and that the witness was already cross-examined, without considering the necessity of the evidence. The High Court set aside the order and allowed the application, directing the trial court to permit re-examination of PW-1 on the points raised by the accused. (Paras 4-6) B) Criminal Procedure - Right of Accused - Cross-Examination - Section 311 CrPC - The court observed that if new facts emerge during examination-in-chief, the accused has a right to cross-examine the witness on those facts. Denying such opportunity may prejudice the defence. The court emphasized that the object of Section 311 is to bring on record all relevant evidence for a just decision. (Paras 5-6)
Issue of Consideration
Whether the trial court erred in rejecting the application under Section 311 of the Code of Criminal Procedure, 1973 filed by the accused for re-examination of a prosecution witness (PW-1) on the ground that the application was filed belatedly and that the witness had already been cross-examined.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 21/09/2016, and directed the trial court to permit the petitioner to re-examine PW-1 on the points raised in the application under Section 311 CrPC, subject to payment of costs of Rs. 1,000 to the State.
Law Points
- Section 311 CrPC grants wide discretion to summon and examine any person as a witness at any stage of inquiry
- trial
- or other proceeding
- the power under Section 311 CrPC is to be exercised to secure just decision and to prevent failure of justice
- the court must consider whether the evidence sought to be brought on record is essential for just decision
- the right of accused to cross-examine a witness cannot be denied if new facts emerge during examination-in-chief.
