Section 311 in The Code of Criminal Procedure, 1973 reads as:-

Power to summon material witness, or examine person present:

Any Court may, at any stage of any inquiry, trial or other proceeding 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.

In Mohan Lal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate.”

Thus Section 311 of Crpc is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the code, (a) to summon anyone as a witness, or (b) to examine any person in the court , or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part appears to be mandatory and requires the court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. Kewal Gupta v State of H.P., 1991 CrLJ 400: 1989 (2) Crimes 635 (HP)

This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. [Zahira Habibullah Sheikh & Anr v State of Gujarat & Ors, (Crl. Apl No. 446-449 of 2004]

In Iddar & Ors. v Aabida & Anr. – AIR 2007 SC 3029, the object underlying under Section 311 Cr. P.C. has been stated as under in paragraph 11:

“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ‘at any stage of inquiry or trial or other proceedings under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind”

The logic placed before the Court by the Court that the grievance can be made before the appellate Court after final conclusion of the trial by the aggrieved party and if the appellate Court finds that during the process the trial Court has committed a grave error and the same has resulted in the case of VC Shukla (Supra) should be read in correct perspective and till date, the Apex Court has not categorically propounded that each interim order passed after initiation of the criminal proceedings and between the institution of prosecution and its final conclusion, should be termed as an interlocutory order.

In Rajaram Prasad Yadav vs State of Bihar & Anr on 4 July, 2013 the court held that:

“A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained.

In Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, the Court stated the position under paragraph 14:

“An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.

Few Case Laws which established the position on Section 311:

Biswanath Ghosh v. State of W.B., 1987

It has been held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by the prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. [Biswanath Ghosh v. State of W.B., (1987) 2 SCC 55]

Bhikari Charan Bhoi v State of Orissa, 1992

The Court has a duty to see that the witnesses are examined for just decision of the case and the court has to call and examine a witness as Court witness even if prosecution does not produce him when it finds that the evidence of the witness had an important bearing on the case. [Bhikari Charan Bhoi v State of Orissa, 1992 CrLJ 2592]

State of U.P. V. Shambu Nath Singh, 2001

It is the duty of the court to examine all material witnesses for the just decision of the case. [State of Gujarat v Senma Savabhai Bhikabhai, 1995 CrLJ 3061] If a witness is present in court he must be examined on that day. [State of U.P. V. Shambu Nath Singh, (2001) 5 SCC 667]

State of A.P. v. Gian Chand, 2001

Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court. [State of A.P. v. Gian Chand, (2001) 6 SCC 71]

Amar Singh v. Balwinder Singh and Ors, 2003

In a case based upon direct eyewitness account, the testimony of the eyewitnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court and acquits the accused without considering or examining the testimony of the eyewitnesses, it will be a clear infraction of Section 386 CrPC. [Amar Singh v. Balwinder Singh and Ors., (2003) 2 SCC 518]

State of Harayana v Ram Parshad, 2006

Where the examination and re-examination of the witnesses is essential for the just decision of the case, it is obligatory for the Court to summon such a witness. [State of Harayana v Ram Parshad, 2006 CrLJ 1001 (1003)]

State of Madhya Pradesh v. Bhura Kunjda, 2009

It was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eyewitnesses and has rejected their evidence on general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice so as to invoke extraordinary jurisdiction of the Supreme Court under Article 136 of the Constitution. [State of U.P. v. Sahai, (1982) 1 SCC 352] The said view was reiterated by a three-Judge Bench in the case of State of Madhya Pradesh v. Bhura Kunjda. [(2009) 17 SCC 34]

CONCLUSION

From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.