Court can use Power of Section 311 Cr.P.C re-examine the witness
Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. “Witnesses” are the eyes and ears of justice. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or under threat or ignorance or some corrupt collusion.
It is contended that under Section 311 of the Code the courts have wide discretion to recall any witness for re-examination any time prior to pronouncement of judgment, if it appears to the Court that such re-examination is essential for the just decision of the case. It is submitted that Section 311 of the Code does not put any limitation on the court in reexamining a witness, in case re-examination of a witness goes to the root of the case. It is also submitted that the complainant as well as Accused has a fundamental right to have a fair trial.
What is the Section 311Cr.P.C –
Section 311 CR.P.C
Power to summon material witness, or examine person present –
Any Court may, at any stage of any enquiry, 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.
When Recall or re-examine the witness by the Court –
The power under Section 311 of the Code, can be exercised by the court at any stage of any inquiry, trial or other proceedings under the Code, to summon any person as witness, examine any person in attendance, though not summoned as a witness or recall or re-examine any person already examined. The touchstone for exercise of powers under Section 311 of the Code, is the satisfaction of the Court that the evidence of any person, which comes to its notice, is essential for the just decision of the case. The intention of the Legislature is to empower and enable the court to come to a correct finding and for that reason, the court would be fully justified in permitting production of evidence, whether documentary or oral, where the court feels that the same is necessary for the just decision of the case. No fetters can be put in exercise of these powers of the court. The cause of justice is paramount and no impediment has, therefore, been intentionally put on the court by the Legislature to exercise the powers under Section 311 of the Code.
The aim of section 311 CR.P.C –
The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness.
Key words of Section 311 Cr.P.C Essential to the just decision of the case-
The second part of the Section uses the word `shall’. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words `essential to the just decision of the case’ are the key words. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide its exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.
View of the Supreme Court of India on Section 311 of the Code as under:-
“Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to sub serve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.”
The Court can recall or re-examination of the witness either Suo motu or on moving the application of any party of the case at any stage( before Pronouncement of order) to find out the truth, if required.