Discretionary Power U/s. Section 311 CrPC Exercisable If Recall Is Not To Fill In Lacuna, To Avoid Serious Prejudice To Accused: Apex Court
The Supreme Court has held that the power under Section 311 of the Code of the Criminal Procedure, 1973 (‘CrPC’) is a discretionary power of the Court and is only permissible if the Court is satisfied that the prayer to recall and re-examine the witness is not made to fill in the lacuna.
The Bench of Justice Pamidighantam Sri Narasimha and Justice Sandeep Mehta held, “Thus, first part of section gives a discretionary power to the Court to summon any person as a witness or to recall or re-examine the person already examined. Such a course of action is only permissible if the Court is satisfied that the prayer to recall and re- examine the witness is not made to fill in the lacuna and that the non-summoning of the witnesses would cause a serious prejudice to the accused.”
AOR Kaushik Choudhary appeared for the Petitioners whereas AOR Shuvodeep Roy appeared for the Respondents.
A Special Leave Petition was preferred on behalf of the Accused challenging the order passed by the Gauhati High Court whereby a petition under Section 482 of the CrPC was dismissed affirming the order passed by the Sessions Court. The Sessions Court had rejected an application under Section 231(2) read with Section 311 CrPC seeking further cross-examine the prosecution witnesses.
The Accused(s) were facing trial for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’). They submitted before the Court that the trial Court as well as the High Court proceeded on the wrong premise that the petitioners were simply praying for further cross-examination of the witnesses which prayer could not be accepted as further cross-examination obviously follows re-examination and the prosecution had never re-examined the witnesses, thus, the defence could not be allowed to re-cross examine the prosecution witnesses.
While finding the above submission of the Accused as fallacious, the Court said, “It is true that the trial Court has made a passing observation in the order dated 9th March 2021 that unless the witness(s) have been re-examined by the prosecution, no opportunity of re-cross- examination can be given to the defence. However, on going through the order passed by the High Court, we find that the High Court has duly considered the factual aspects in context to the statutory provisions and held that the prayer made on behalf of the petitioners by way of the application under Section 311 CrPC was to recall the abovementioned witnesses and to permit the defence to conduct further cross-examination from them. Upon apropos examination of the entire material available on record, the High Court held that the grounds set out in the application praying for an opportunity of further cross-examination of the witnesses were vague and unsubstantiated.”
The Court added that Section 311 of the CrPC operates in two parts, the first part clothes the Court with the power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandates that the Court shall summon and examine or recall and re-examine such person if his evidence appears to be essential to the just decision of the case.
The Court referred to its judgment in Rajaram Prasad Yadav vs State of Bihar and Anr. (2013), wherein it culled out the principles to be borne in mind while exercising the power under Section 311 CrPC.
The Court observed, “We find that other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial Court to invoke the power under Section 311 CrPC…Apparently thus, the prayer made by the petitioners in the application to recall and re-examine the witnesses was nothing but an attempt to fill in the lacuna. There is nothing on record to suggest that non summoning of the witnesses for further cross examination could cause grave prejudice the accused and that such a cause of action was essential for a just decision of the case.”
Accordingly, the Court upheld the decision of the High Court and dismissed the petition.
Cause Title: Neha Begum and Ors. v. The State of Assam and Anr.
Appearances:
Petitioners: AOR Kaushik Choudhary, Advocates Sidhant Dutta, Saksham Garg and Jyotirmoy Chatterjee.
Respondents: AORs Shuvodeep Roy and Krishanu Barua.