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An Analysis of 311 of Code of Criminal Procedure, 1973

In this Article we will endeavour to understand as to what are the powers that the Magistrate can exercise under 311 of the Code of Criminal Procedure 1973, under what circumstances the power can be exercised and when will the Court's refuse to exercise the power under Section 311 of the Code of Criminal Procedure 1973.

Bare Act Provision:
As per Section 311 of the Code of Criminal Procedure 1973 "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.

Let us now through illustrative Case-Law aim to understand the scope of this provision.
  1. Varsha Garg v/s State Of Madhya Pradesh (Criminal Appeal No. 1021 of 2022):
    Appellant was the spouse of an Advocate who had been brutally murdered outside his office by armed goons, Police had filed Chargesheet in this regard. The Prosecution sought to re-call certain cell phone tower officials, to ascertain location of Accused.

    The Trial Court and the High Court rejected the application preferred under Section 311 of the Code of Criminal Procedure, 1973. The matter reached the Supreme Court of India.

    The Court allowed the application under Section 311 of the Code of Criminal Procedure, 1973 and stated that as per the dictum laid down in Rameshdayal vs State of Uttar Pradesh, Zahira Habibullah Sheikh vs State of Gujrat and other cases the Court is vested with ample powers to do re-call material witness, in order to mete out justice.
  2. In the case of Rajaram Prasad Yadav vs State of Bihar the following principles were culled out vis a vis Section 311 of the Code of Criminal Procedure, 1973.

    The following principles were laid down:
    1. Whether new evidence is needed?
    2. Exercise of wide discretionary power under Section 311 of the Code of Criminal Procedure, 1973, judgement should not be rendered on speculative grounds.
    3. The exercise of power under Section 11 of the Code of Criminal Procedure, 1973 should only be resorted with the objective of finding out the truth.
    4. Court arrives at the conclusion that additional evidence is necessary, if there would be failure of justice, if not considered.

In the next case we will see how in a recent judgement the Honourable High Court of Judicare at Allahabad refused to re-call a Witness.

B. Bhim Singh vs State of Uttar Pradesh [ (2022) ALL LJ 304: - In the instant case the Petitioner moved an application for re-call of one of the witnesses to an attempted murder. The said application was rejected on the ground that the same was filed after a delay of four years, and that the said witness who was sought to be re-called was not even an eyewitness to the said crime.

We can therefore conclude that the Courts are usually willing to allow applications filed under Section 311 of the Code of the Criminal Procedure, 1973 , unless there is a long delay or similar reason, however the usual course is to allow the application filed under the said provision.

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