Case Note & Summary
The case involved two Criminal Writ Petitions filed by accused persons challenging an order of the Additional Sessions Judge, Ahmednagar, dated 27 September 2018, which partly allowed the prosecution’s application under Section 311 of the Code of Criminal Procedure, 1973, to examine additional witnesses. The accused were facing trial in Sessions Case No. 394/2012 for various offences under the Indian Penal Code and the Arms Act. The prosecution initially proposed to examine 15 witnesses. On 31 July 2018, five witnesses were examined; however, two other witnesses present were not examined as they did not support the prosecution. The Additional Public Prosecutor (APP) filed an application to summon three other witnesses, which was allowed. On 16 August 2018, the APP filed a pursis stating that though summonses were served, the witnesses did not appear, and since four of the five examined witnesses turned hostile, the prosecution saw no use in examining further witnesses, and therefore closed its evidence. Subsequently, the trial court recorded the statements of the accused under Section 313 CrPC. On 15 September 2018, the prosecution filed an application under Section 311 to examine six new witnesses. The accused opposed the application, contending that after closure of evidence and examination under Section 313, such an application was impermissible. Relying on precedents including Mir Mohd. Omar v. State of West Bengal, the accused argued that allowing the application would nullify their defence and cause prejudice. The prosecution countered that Section 311 empowers the court to summon or recall any witness at any stage if essential for a just decision, and the names of the proposed witnesses appeared in the FIR and their statements were recorded during investigation. The trial court partly allowed the application to examine four of the six witnesses. Aggrieved, the accused filed writ petitions before the High Court. The High Court heard arguments from both sides, where the petitioners repeated their objection that Section 311 cannot be invoked after Section 313 examination, and the State reiterated that the provision is designed for a fair trial. The Court reserved judgment on 6 December 2018 and pronounced it on 11 December 2018. The final decision and reasoning are not included in the provided text.
Issue of Consideration
Whether, after examination of the accused under section 313 of the Code, an application under Section 311 of the Code of Criminal Procedure can be entertained and allowed for examination of such witnesses, which were not examined during the course of the trial.
Case Details
2018 LawText (BOM) (12) 28
Criminal Writ Petition Nos. 1432/2018 and 1436/2018
Mr. Rahul R. Karpe, Advocate for Petitioners in WP 1432; Mr. N.L. Jadhav, Advocate for Petitioners in WP 1436; Mr. S.P. Deshmukh, APP for Respondent-State
Popat S/o Nagnath Shinde, Jalindar S/o Navnath Moharkar, Sachin S/o Dnyandeo Pawar, Chetan S/o Mahadeo Galgate (WP 1432/2018); Satish S/o Nagnath Shinde, Chandrakant Dattatray Sapkal, Nitin Rohidas Ransingh, Santosh Machindra Goyakar (WP 1436/2018)
The State of Maharashtra, Through Police Station, Karjat, Tq. Karjat, Dist Ahmednagar
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Nature of Litigation
Criminal writ petitions challenging trial court's order allowing prosecution to examine additional witnesses under Section 311 CrPC after closure of evidence and recording of accused's statements under Section 313.
Remedy Sought
Petitioners sought quashing of the order dated 27-9-2018 below Exh.91 in Sessions Case No.394/2012, by which the Additional Sessions Judge permitted the prosecution to examine four witnesses, contending that it was illegal and prejudicial.
Filing Reason
The trial court allowed the prosecution's application under Section 311 CrPC filed after the prosecution had closed its evidence and the accused had been examined under Section 313 CrPC, which the petitioners argued was impermissible and violated their right to fair trial.
Previous Decisions
The Additional Sessions Judge, Ahmednagar, passed the impugned order on 27 September 2018 partly allowing prosecution's application Exh.91, permitting examination of Dadasaheb Pandharinath Barkade, Sanjay Nivrutti Giri, Balasaheb Dada Pawar, and Pandharinath Namdev Barkade. This order was challenged in the present writ petitions.
Issues
Whether, after examination of the accused under section 313 of the Code, an application under Section 311 of the Code of Criminal Procedure can be entertained and allowed for examination of such witnesses, which were not examined during the course of the trial.
Submissions/Arguments
Petitioners contended that after closure of prosecution evidence and recording of accused's statements under Section 313 CrPC, no application under Section 311 CrPC could be entertained. They argued that the prosecution deliberately closed its evidence and then sought to nullify the accused's defence.
Petitioners relied on Mir Mohd. Omar v. State of West Bengal, Johnson v. State of Kerala, and Cheeku Singh v. State of Rajasthan to support the proposition that such a course is impermissible and causes failure of justice.
Petitioners pointed out that two of the proposed witnesses (Subhash Kawale and Satish Dattu Pawar) were present in court on 31 July 2018 but were not examined, and the APP had scored their names, so they could not be summoned later.
Respondent-State argued that Section 311 CrPC grants wide powers to the court to summon or recall any person as a witness at any stage if his evidence appears essential to the just decision of the case, and this power can be exercised even after evidence is closed and statements under Section 313 are recorded.
Respondent relied on Mohan Lal Shamji Soni v. Union of India, Rajendra Prasad v. Narcotic Cell, and Singh v. CBI to assert that the court has a duty to ensure all relevant evidence is brought on record.
Respondent submitted that the names of the witnesses were mentioned in the FIR and their statements were recorded during investigation, and they were necessary to prove the prosecution case.
Judgment Excerpts
The issue, which has been raised in these petitions is, after examination of the accused under section 313 of the Code, whether an application under Section 311 of the Code of Criminal Procedure ( hereinafter referred to as the Code), can be entertained and allowed for examination of such witnesses, which were not examined during the course of the trial.
the powers under Section 311 of the Code can be exercised at any stage if the evidence of a witness appears to be essential to just decision of the case and it is duty of the court to summon or recall such person to be examined in the matter.
Procedural History
Charge framed against all 12 accused on 3 April 2017 by Additional Sessions Judge. Prosecution proposed to examine 15 witnesses. On 31 July 2018, five witnesses examined; two other witnesses present but not examined as they did not support prosecution; APP filed application for fresh summons to three other witnesses, which were issued. On 16 August 2018, APP filed pursis Exh.74 stating that though summonses were served, witnesses not present, and since four examined witnesses turned hostile, prosecution saw no use in examining further witnesses and closed its evidence. Trial court recorded statements of accused under Section 313 CrPC. On 15 September 2018, prosecution filed application Exh.91 under Section 311 CrPC to examine six witnesses. Accused opposed. Trial court partly allowed the application on 27 September 2018, permitting examination of four witnesses. Accused filed Criminal Writ Petitions Nos. 1432/2018 and 1436/2018 in High Court of Bombay, Bench at Aurangabad, which were heard on 6 December 2018 and judgment pronounced on 11 December 2018.
Acts & Sections
- Code of Criminal Procedure, 1973: 311, 313
- Indian Penal Code, 1860: 143, 147, 148, 149, 379, 395, 337, 427, 504, 506
- Arms Act, 1959: 3/25
