Holding

The trial court ought to have permitted the re‑examination of the witnesses; Section 311 empowers a court to recall and re‑examine a witness when the evidence is essential to the just decision of the case.

Summary

Godrej Pacific Tech Ltd. applied to the trial court for re‑examination of certain witnesses under Section 311 of the Code of Criminal Procedure, 1973. The trial court rejected the application, and the Punjab and Haryana High Court upheld that rejection. On appeal, the Supreme Court examined the scope and object of Section 311, noting that its first part confers discretionary power while the second part imposes a mandatory duty to recall and re‑examine a witness if the evidence is essential to a just decision. The Court held that, in the facts of the case, the evidence of the witness was essential and the trial court should have allowed the re‑examination. Consequently, the appeal was allowed and the trial court was directed to fix a date within three months to re‑examine the witnesses, giving the accused an opportunity to cross‑examine. The judgment underscores the wide‑ranged but judiciously exercised power of courts to prevent failure of justice.

Issues considered

Whether the trial court was correct in rejecting the application for re‑examination of witnesses under Section 311 CrPC.
What is the scope and object of Section 311 CrPC, particularly the interplay of its discretionary and mandatory components?
When does a court have a duty to recall and re‑examine a witness under Section 311?

Legislation cited

Code of Criminal Procedure, 1973s. 311, s. 313
Indian Evidence Act, 1872s. 60, s. 64, s. 91

Subjects

Section 311 CrPCre‑examination of witnesscriminal procedurediscretionary powermandatory dutyevidencetrial courtappeal

Judgment

[2008] 11 S.C.R. 571

.. GODREJ PACIFIC TECH. LTD. A
v.
COMPUTER JOINT INDIA LTD.
(Criminal. Appeal No. 1181 of 2008)
JULY 30, 2008
B
[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]

Code of Criminal Procedure, 1973- s. 311 - Object, na-
ture and scope of - Re-examination of witness sought - re-
;ected by courts below - On appeal, held: In the facts of the c
case, re-examination of the witness should have been allowed
- The object of the provision is to save failure of justice on
accou!Jf of mistake of either party in bringing the valuable evi-
dence - The provision gives vety. wide powers and applies to
all the proceedings, enquiries and trials under Cr.PC.
D
Appellant filed an application seeking re-examination
' ,;( of the witnesses in terms of s. 311 Cr.P.C. Trial court re-
jected the application. High Court upheld the rejection.
Hence the present appeal.
Allowing the appeal, the Court E

HELD: 1. In view of the facts of the case, trial court
ought to have permitted the prayer of the appellant. High
Court should not have declined to interfere with the or-
der of the trial court. [Para 12] [577 8-C] F
2.1 The object underlying Section 311 Cr.P.C. 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 exam-
ined from either side. The determinative factor is whether it is G
essential to the just decision of the case. The object is to bring
on record evidence not' only from the point of view of the ac-
cused and the prosecution but also from the point of view of
the orderly society. [Paras 8 and 10] [575 E-F 576 F-G]
571 H
572 SUPREME COURT REPORTS [2008) 11 S.C.R.

A 2.2 Section 311 Cr.P.C. is manifestly in two parts.
Whereas the word used in the first part is "may", the sec-
ond part uses "shall". In consequence, the first part gives
purely discretionary authority to a criminal court and en-
ables it at any stage of an enquiry, trial or proceeding un-
B der Cr.P.C. (a) to summon anyone as a witness, or (b) to
examine any person present in the court, or (c) to recall
l
I
and re-examine any person whose evidence has already
been recorded. On the· other hand, the second part is man-
datory and compels the court to take any of the aforemen-
C tioned steps if the new evidence appears to it essential to
the justdecision of the case. [Para 7] [574 G- 575-B]
2.3 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 other-
D wise brought before it. It is couched in the· widest pos.:
sible terms -and calls Jor no limitation, either with regard
to the ;~tage .at which the powers of the court should be > ,,
exercis~d, or with regard to the manner in-which it should
be exercised. The Section is a general Section which ap-
E plies to all proceedings, enquiries and trials under Cr.P.C.
and empowers the Magistrate to issue summons to any
wit~ess at any stage of such proceedings, trial or.enquiry.
In. the Section, the significant expression that occurs is
"at any stage of any inquiry or trial or other proceeding .
F 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 discretion conferred
is to ;be exercised judiciously, as the wider the power, the
grea.ter is the necessity for application of judicial mind.
G [Paras 7 and sj [515 B-H 576-A] _- ·
2.4 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. There is a duty cast upon the
H. _court to arrive at the truth by all lawful means and one of
GODREJ PACIFIC TECH. LTD. v. COMPUTER 573
JOINT INDIA LTD. [DR ARIJIT PASAYAT, J.]
. .. such means is the examination of witnesses of its own A
accord when for certain obvious reasons either party is
not prepared to call witnesses who are known to be in a
position to speak important relevant facts. Whether the
,
-
new evidence is essential or not must depend on the facts
of each case, and has to be determined by the Presiding B
Judge. [Paras 7 and 9] [575 C-D 576-F] ·
~

Jamatraj Kewalji Govani v. State of Maharashtra 1967
(3) SCR 415; Zahira Habibullah Sheikh and Anr. v. State of
Gujarat and Ors. 2006 (3) SCC 374 - relied on.
c
Case Law Reference
1967 (3) SCR 415 Relied on Para 10
·'
2006. (3) sec 374 Relied on Para 11
<;RIMINALAPPELLATE JURISDICTION: Criminal Appeal D
No. 1181of2008
... ~. From the Judgment and Order dated 10.8.2006 of the High
Court of Punjab and Haryana at Chandigarh in Crl. Misc. No.
19213-M of 2005
E
Raman K. Sharma, Rajesh K. Sharma and Shalu Sharma
for the Appellants.

Biswajeet Bhattacharya, Ranjan Mukherjee for the Respon-
dent.
F
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court, rejecting the G
petition filed by the appellant. Before the High Court challenge was
to the order passed by the learned Judicial Magistrate, Chandigarh,
rejecting the application of the appellant seeking re-examination
of the witnesses already examine,d in terms of Section 311 of the
Code of Criminal Procedure, 1973 (in short 'Code').
H
I

~·
574 SUPREME COURT REPORTS [2008] 11 S.C.R.
I
i-

A 3. The application was rejected by the Trial Court primary
..,
on the ground that the complaint was filed on 19.12.1996. The '~

evidence was closed.on 11.3.2004. Under Section 313 Cr.P.C. ~
t
examination was over on 12.7.2004. The High Court concurred
with the view. of the Trial Court. ~
B 4. lri support of the appeal learned counsel for the appel-
lant submitted that the examination in chief of the witness Shri )'.

Deepak Jotshi was done on 29.7.2003. On that particular date,
the counsel for the accused had taken an objection that the r
applicants counsel was asking misleading questions. Hence
c the trial Court had directed the witness to give his statement
and as a layman, he gave his statement. But inadvertently he
had not proved the relevant documents i.e. cheques, cheque
returning memos, legal notice, courier receipt, letter from com- '-

plainan't bank, whereas, some of the above said documents
r
D h?d already been proved by other witness, other than the com-
.;
plainant.
5. Learned counsel for the respondents supported orders
)' ,,.
;
of the court below.

E 6. In this context, reference may be made to Section 311
of the Criminal Procedure Code which reads as follows:
"311. 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 r-
F 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
G to the just decision of the case." ~
I

7. The section is manifestly in two parts. Whereas the word
used in the first part is "may", the second part uses "shall". In
consequence, the first part gives purely discretionary authority -r
to a criminal court and enables it at any stage of an enquiry, trial
H
GODREJ PACIFIC TECH. LTD. v. COMPUTER 575
JOINT INDIA LTD. [DR. ARIJIT PASAYAT, J.]

or proceeding under the Code (a) to summon anyone as a wit- A
ness, or (b) to examine any person present 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 is manda-
tory and compels the court to take any of the aforementioned
.(
steps if the new evidence appears to it essential to the just de- B
cision of the case. 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 c
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. There is a duty cast D
upon the court to arrive at the truth by all lawful means and one
of such means is the examination of witnesses of its own ac-
cord when for certain obvious reasons either party .is not pre-
pared to call witnesses who are known to ·be in a position to
speak important relevant facts.
E
8. The object underlying Section 311 of the Code is that
there may not be failure of justice on account of mistake of ei-
ther party in bringing the valuable evidence on record or leav-
ing ambiguity in the statements of the witnesses examined from
either side. The determinative factor is whether it is essential to F
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 exer-
cise of the powers of the court to summon a witness under the
section merely because the evidence supports the case of the
prosecution and no, that of the accused. The section is a gen- G
eral section which applies to all proceedings, enquiries and tri-
als under the Code·and empowers the Magistrate to issue sum-
mons 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 any inquiry or trial or other proceeding under H
576 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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 discretion conferred is to be exercised judiciously,
as the wider the power the greater is the necessity for applica-
tion of judicial mind.
B 9. As indicated above, the section is wholly discretionary. ).

The second part of it imposes upon the Magistrate an obliga-
tion: it is, that the court shall summon and examine all persons
whose evidence appears to be essential to the just decision of
the case. It is a cardinal rule in the law of evidence that the best
C available evidence should be brought before the court. Sec-
tions 60, 64 and 91 of the Evidence Act, 1872 (in short "the
Evidence Act") are based on this rule. The court is not empow-
ered under the provisions of the Code to compel either the pros-
ecution or the defence to examine any particular witness orwit-
D nesses on their side. This must be left to the parties. But in
weighing the evidence, the court can take note of the fact that
the best available evidence has not been given, and can draw
an adverse inference. The court will often have to depend on
intercepted allegations made by the parties, or on inconclusive
E inference from facts elicited in the evidence. In such cases, the
court has to act under the second part of the section. Some-
times the examination of witnesses as directed by the court
may result in what is thought to be "filling of loopholes". That is
purely a subsidiary factor and cannot be taken into account.
F Whether the new evidence is essential or not must of course
depend on the facts of each case, and has to be determined by
the Presiding Judge.
10. The object of Section 311 is to bring on record evi-
dence not only from the point of view of the accused and the
G prosecution but also from the point of view of the orderly soci-
ety. If a witness called by the court gives evidence against the
complainant, he should be· allowed an opportunity to cross-ex-
amine. The right to cross-examine a witness who is called by a
court arises not under the provisions of Section 311, but under
H the Evidence Act which gives a party the right to crass-examine
.GODREJ PACIFIC TECH. LTD. v. COMPUTER 577
JOINT INDIA LTD. [DR ARIJIT PASAYAT, J.]

a witness who is not his own witness. Since a witness sum- A
maned by the court could not be termed a witness of any par-
ticular party, the court should give the right of cross-examina-
tion to the complainant. These aspects were highlighted in
Jamatraj Kewalji Govani v. State of Maharashtra (1967 (3) SCR
415). B
11. The above position was highlighted in Zahira
Habibullah Sheikh & Anr. v. State of Gujarat & Ors. [(2006) 3
sec 374].
12. In the background facts of the case we are of the view c
that the trial court ought to have permitted the prayer of the ap-
pellant. That being so, the rejection of the prayer by trial court
was not proper and the High Court should not have declined to
interfere.
13. The appeal is allowed. The Trial Court shall fix a date D
within three months and call the witnesses in question and ac-
cord opportunity to the accused persons and thereafter pro-
ceed with the trial.
K.K.T. Appeal allowed .

...... ..