Holding

A witness who has been fully examined in‑chief and cross‑examined cannot be recalled and re‑examined merely because of inconsistent statements elsewhere; recall is permissible only if the new evidence is essential to the just decision of the case.

Summary

The accused (respondents 2 and 3) were tried for offences under Sections 147, 452, 364, 302/149 and 201/149 of the IPC. Two prosecution witnesses, PW‑3 (Bhopalaram) and PW‑5 (Nandaram), had been examined and cross‑examined in the trial court and later again as witnesses before a Juvenile Court, where they gave statements inconsistent with their trial testimony. The accused sought, under Section 311 of the CrPC, to have these witnesses recalled and re‑examined in the trial court with reference to their Juvenile Court statements. The trial court rejected the application, but the Rajasthan High Court allowed it. On appeal, the Supreme Court held that Section 311 confers a discretionary power to recall a witness only when new evidence is essential to a just decision; once a witness has been fully examined in‑chief and cross‑examined, he should not be recalled merely because of inconsistent statements elsewhere. The High Court’s order was therefore set aside and the appeal allowed.

Issues considered

The scope and object of Section 311 of the Code of Criminal Procedure, 1973 with respect to recalling and re‑examining a witness.
Whether a witness already examined in‑chief and cross‑examined can be recalled on the ground of inconsistent statements given before another court.
Whether the High Court erred in allowing the recall of PW‑3 and PW‑5 under Section 311.

Legislation cited

Code of Criminal Procedure, 1973s. 311, s. 397, s. 401
Indian Evidence Act, 1872s. 60, s. 64, s. 91
Indian Penal Code, 1860s. 147, s. 149, s. 201, s. 302, s. 364, s. 452

Subjects

Section 311 CrPCwitness recallre‑examination of witnesscriminal procedureevidence lawcross‑examinationjuvenile courtinconsistent statements

Judgment

[2008] 14 S.C.R. 348 I-

A HANUMAN RAM
II. """
ti ~

THE STATE OF RAJASTHAN AND ORS. ~

(Criminal Appeal No. 1597 of 2008)
OCTOBER 13, 2008
B
[DR. ARIJIT PASAYAT AND J.M. PANCHAL, JJ.]

~· \C
Code of Criminal Procedure, 1973 - s.311 - Scope and
object of - Recalling/re-examination of witness - Held: Once
the witness is examined in-chief and cross-examined fully, such ~~
c
witness should not be recalled and re-examined to deny the
evidence he had already given before Court, even though that
witness had given an inconsistent statement before any other
Court or forum subsequently - Penal Code, 1860 - ss. 147,
452, 364, 3021149 and 2011149.
D
Accused-Respondents 2 and 3 were facing trial u/
ss.147, 452, 364, 302/149 and 201/149 of IPC. Various wit-
nesses including ·PWs 3 & 5 were examined and cross-
y•
examined in the case. PWs 3 & 5 were subsequently ex-
E amined as prosecution witnesses before the Juvenile
Court as well in which one accused who claimed to be
minor was tried.
Respondents 2 and 3 filed application before the Trial r
Court in terms of s.311 CrPC praying that PW5 and PW3
F be re-called for cross-examination afresh with reference . :,Jo t

to their statements before the Juvenile Court. The appli- /i~
cation was rejected. Respondents 2 and 3 filed petition
under s.397 r/w s.401 of CrPC. The High Court allowed
the petition and directed the Trial Court to re-call and re-
G examine PWs 3 & 5. Hence the present appeal.
Allowing the appeal, the Court e
A-1-
HELD:1.1. Section 311 of CrPC is manifestly in two
parts. Whereas the word used in the first part is "may",
H 348
.. HANUMAN RAM v. THE STATE OF RAJASTHAN
AND ORS .
349

-...
- "'"
the second part uses "shall". In consequences, the first A
part gives purely discretionary authority to a Criminal
Court and enables it at any stage of ari enquiry, trial or
proceeding under the Code (a) to summon any one as a
witness, or (b) to examine any person present in Court,
or (c) to recall and re-examine any person whose evidence B
has already been recorded. On the other hand, the sec-
ond part is mandatory and compels the Court to take any
-.Jf_
of the aforementioned steps if the new evidence appears
to it essential to the just decision of the case. This is a
supplementary provision enabling, and in certain circum- c
stances imposing on the Court by duty of examining a
material witness who would not be brought before it. It is
couched in the widest possible terms and calls for no limi-
tation, either with regard to the stage at which the powers
of the Court should be exercised, or with regard to the
D
manner in which it should be exercised. It is not only the
prerogative but also the plain duty of a Court to examine
... '-r such of those witnesses as it considers absolutely nee-
essary for doing justice between the State and the sub-
ject. There is a duty cast upon the Court to arrive at the
truth by all lawful means and one of such means is the E
examination of witnesses of its own accord when for cer- .

.. "J.
tain obvious reasons either party is not prepared to call
witnesses who are known to be in a position to speak
important relevant facts. [Para 6] [354-C-G]
1.2. The object underlying s.311 of CrPC is that there
F
\ may not be failure of justice on account of mistake of ei-
ther party in bringing the valuable evidence on record or
leaving ambiguity in the statements of the witnesses ex-
amined from either side. The determinative factor is
G
whether it is essential to the just decision of the case. The
section is not limited only for the benefit of the accused,
·.,.s.\ 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 prosecu-
H
350 ·SUPREME COURT REPORTS
. '
[2008] 14 S.C.R.
'

A· tion· and nc:>t that of the accused ..The section is.·a general . ·:...I'
-
' section whieh applies 'to all: .proceedings; ·enquires' anc;f:: '' ':.:
7
~
trials under the Code ,~ild .empowers .Magistr~te t~>:issue: '" · ...
. summonsld ..any witness~~t:any'.stage~.()f sµch: pr;oc:eed- ·..· ''. ' r-
ings,'frial' or ·~nquhy. Jn 5~311.the signifi~ant expression
B that occur$ is nat anysta·ge C,)f inquir)t ortri~I o.r~other.J)ro;.: ·.. ·· · ·
ceeding under this Code·;~~ It' is, however,' to be··. borne .in
mind that Whereas the :.sectiott confers a very wide power
on .~he ,qoyrt.''oo summoning witnesses, the 'd.iscretion . '~Y:~
. collfert~d i$' to ~~:.~?C~r~:i$.ed ;judiciously, as the 'wide the.
c power.'the greater fs.tht!"ne't:essity for applfoa.tion of judi;.
'."
ciatmind. [Para 7][354.H, 3SSA·Cl ". ·· ·' · · · · ·,
.. .. ....
' . . ,

1.3. The:Section,·is wholly diScret.ionary. 'Th~e second ·
.part of»it imp~ses upon the Me1g1strate an obligation: it is;
.that the 'Court s~all summon and· exatrt,ine ·au :persons,
D Whose eyidence appeal'S to be ess·ential ~o the just dec;i". ..
sion Of the ca~e.:_it is a ·Cardinal rule ·in the I.aw of evidence
that the best available evidence should be brought before · . y
the Court. Ss.60, 64 and 91,of the 1ndian Evidence Act, 1872
are based on this rule. The Court.is not empowered under
· E the provisions of the Code to compel either the prosecu- · . I
tion or the defence .to examine any particular witness or ·
Witnesses on their' side. This must be left to the parties.
But in· weighing the evidence, the Cou·rt can take note of . ·
the fact that the best available evidence has not been given, ·
.F and can draw an. adverse· inference. The Court will often
..
have to depend on interc~pted allegations l)lade ·by the . :.1-4·
parties, ~r ()n inconclusive inference.from ·factS elicited in · -1--··:
the evidence. In such cases, the Court has to act under the
sec()hd part of the section. Sometimes the examination of
· witnesses as directed by the Court may resultin what is .
·G thought to be '.'filling of loopholes": That is purely a sub".· · .'
. sidiary .factor and c:annot be taken into account. Whether
is
the n'ew evidence .essential or not must of course de- .·~. ·
pend. on the facts of each case, and has to be determined
by the Presiding Judge. [Para 8] [355 D·H, 356 A]
H
HANUMAN RAM v. THE STATE OF RAJASTHAN 351
AND ORS.

1.4. The object of s.311 is to bring on record evidence A
~~ not only from the point of view of the accuseq and the
prosecution but also from the point of view of the orderly
society. If a witness called by Court gives evidence against
the complainant he should be allowed an opportunity to
cross-examine. The right to cross-examine a witness who B
is called by a Court arises not under the provision of s.311,
but under the Evidence Act which gives a party the right
..J ~- to cross-examine a witness who is not his own witness.
Since a witness summoned by the Court could not be
termed a witness of any particular party, the Court should c
give the right of cross-examination to the complainant.
[Para 9] [356 A-C]
1.5. Once the witness is examined in chief and cross-
examined fully, such witness should not be recalled and
re-examined to deny the evidence he had already given D
before Court, even though that witness had given an in-
consistent statement before any other Court or forum
subsequently. In the present case, the High Court's view
for accepting the prayer in terms of s.311 of CrPC does
not have any legal foundation. In the facts of the case, the E
High Court ought not to have accepted the prayer made
by the accused persons in terms of s.311 of CrPC. [Para
10, 11] [357 B, F-G]
Jagat Raviv. State of Maharashtra AIR (1968) SC 178;
Rama Paswan and Ors. v. State of Jharkhand (2007) 11 SCC F
,,
"-,
191; lddar and Ors. v. Aabida and Anr. (2007) 11 SCC 211 ;
\
Mishra/a/ and Ors. v. State of M.P & Ors. (2005) 10 SCC 701
- relied on.
CASE LAW REFERENCE
G
AIR (1968) SC 178 relied on Para 9
(2007) 11 sec 191 relied on Para 9
(2007) 11 sec 211 relied on Para 9
(2005) 1o sec 101 relied on Para 10 H
352 SUPREME COURT REPORTS . '[2008] 14 S.C.R.

·A CRiMINALAPPELLATE JURISDiCTION: Criminal Appeal 7.-
No. 1597 of 2008 ·
From the final Judgment and Order dated 25/10/2007 of
the High Court of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Revision Petition No. 912 of 2007
. B
Brij Bhusan for the Appellant. ·
Jatinder Kumar Bhatia and R.C .. Kohli for the Respondents. ~ l

·The Judgment of the Court was delivered by
C DR~ ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of the learned
Singie Judge of the Rajasthan High Court, allowing the applica-
tion filed by respondent nos.2 and 3. The said respondents had
D questioned the correctness ofthE? order dated 14.8.2007 passed
by' the learned Additional Sessions Judge, (Fast Track),
Parbatsar, rejecting the application made by the accused in ·
terms of Section 311 of the Code of Criminal Procedure, 1973
(in short 'Code').
E 3. A brief refer~nce to the factual aspects would suffice:
The respondent nos.2 and 3 are facing trial for the com-
mission of offences punishable under Sections 147, 452, 364,
- 302/149-and 201/149 of theJndian Penal Code, 1860 (in short
'IPC'). Various' witnesses were examined from time to time in-
F eluding Nandaram (PW-5) and Bhopalaram,(PW-3). Nandaram
was examined_ and cross-examined on 21st November, and
Bhopalaram was examined and cross-examined on 7th June, ·
2006. One of the accused Shrikant was claimed to be a minor
and because of thaf he Was tried before the Children's Court. In
G that case also Bhopalaram was examined as a witness on 9th
January, 2007. In his evidence Bhopalaram did not support the
prosecution version. Similarly, Nandaram was examined be- . ~·
fore the Children's Court sometime in November, 2006. An ap-
plication was filed by the accused persons before the Trial Court
H in terms of Section 311 of the Code with the prayer that
HANUMAN RAM v. THE STATE OF RAJASTHAN 353
AND ORS. [DR. ARIJIT PASAYAT, J.]
-"<:- Nandaram and Bhopalaram may be re-summoned for cross- A
examination with reference to their statements before the
Children's Court. The trial Court found the prayer to be not ac-
ceptable and rejected the same. An application under Section
397 read with Section 401 of the Code was filed before the
High Court questioning the correctness of the order dated B
14.8.2007 rejecting the application made. The High Court by
+...
• its impugned judgment allowed the petition and directed the
court below to recall and re""'examine Bhopalaram and.
Nandaram. The High Court for the purpose of accepting the
prayer recorded as follows: c
"In the present case, it is not in dispute- that Bhopalaram
and Nandaram were examined as prosecution witnesses
before the Children Court, Ajmer and their testimony in that
case is certainly relevant in the case relating to the
petitioners. The reliability of the witnesses is required to be D
examined by the Court after hearing the arguments and at
~ this stage it shall not be appropriate to apprehend that
witnesses Bhopalaram and Nandaram would have been
won over. In the peculiar facts and circumstances of the
case I am of considered opinion that the court below erred E
while rejecting the application preferred by the petitioners
under Section 311 Cr.P.C. The court should have recalled
Bhopalaram and Nandaram for cross examination afresh
by invoking powers under Section 311 Cr.P.C."
4. Learned counsel for the appellant submitted that the High F
"--._
i·
\
Court ought not to have accepted the prayer as made because
the parameters governing Section 311 of the Code had no ap-
plication to the facts of the case. Learned counsel for the State
supported the stand of the appellant. Learned counsel for the
respondent nos. 2 and 3 submitted that ultimately the best evi- G
dence has to be brought on record for doing justice and the
~
High Court's order, therefore, does not suffer from any infirmity.

5. Reference may be made to Section 311 of the Code
which reads as follows:
H
354 SUPREME COURT REPORTS [2008] 14 S.C.R.

A "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 any person as a witness
-'

or examine any person in attendance, though not summoned
8 as a witness or recall and re-examine any person if his evidence
appears to it to be essential to the just decision of the case." A _.,.

6. The section is manifestly in two parts. Whereas the word
used in the first part is "may'', the second part uses "shall". In
c consequences, the first part gives purely discretionary authority
to a Criminal Court and enables it at any stage of an enquiry,
trial or proceeding under the Code (a) to summon any one as a
witness, or (b) to examine any person present in Court, or (c) to
recall and re-examine any person whose evidence has already
D 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- ~
{

cision of the case. This is a supplementary provision enabling,
and in certain circumstances imposing on the Court by duty of.
examining a material witness who would not be brought before ;·

E 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
F as it considers absolutely necessary for doing justice between
the State and the subject. There is a duty cast 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 accord when for certain
obvious reasons either party is not prepared to call witnesses
G who are known to be in a position to speak important relevant
facts. -4W

7. 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 leaving
H (
HANUMAN RAM v. THE STATE OF RAJASTHAN 355
AND OR$. [DR. ARIJIT PASAYAT, J.]
iif·
ambiguity in the statements of the witnesses examined from ei- A
ther 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 prosecu- B
tion and not that of the accused. The section is a general section
~-
.
which applies to all proceedings, enquires and trials under the
Code and empowers Magistrate to issue summons to any wit-
ness at any stage of such proceedings, trial or enquiry. In Section
311 the significant expression that occurs is "at any stage of in- c
quiry or trial or other proceeding 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 con-
ferred is to be exercised judiciously, as the wide the power the
greater is the necessity for application of judicial mind.
D
8. As indicated above, the Section is wholly discretionary.
The second part of it imposes upon the Magistrate an obligation:
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 available E
evidence should be brought before the Court. Sections 60, 64
and 91 of the Indian Evidence Act, 1872 (in short 'Evidence Act'),
are based on this rule; The Court is not empowered under the
provisions of the Code to compel either the prosecution or the
"' '\ defence to examine any particular witness or witnesses on their F
side. This must be left to the parties. But in weighing the evi-
dence, the Court can take note of the fact that the best available
evidence has not been given, and can draw an adverse infer-
ence. The Court will often have to depend on intercepted allega-
tions made by the parties, or on inconclusive inference from facts
G
elicited in the evidence. In such cases, the Court has to act under
l-'' the second part of the section. Sometimes 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. Whether the new evidence is es-
H
356 SUPREME COURT REPORTS [2908] 14 S.C.R.

A sential or not m.ust of course depend on the facts of each case,
and has to be qetermined by the Presiding Judge.
9, The object of Section 311 is to bring on record evidence
not only from the point of view of the accused and the prosecu-
tion but c;ilso from the point of view of the orderly society. If a
8 witness called by Court gives evidence against the complain-
ant he should be allowed a.n opportunity to cross-examine. The ,....,-,~·
right to cross-examine a witness who i.s called by a Court arises
not under the provision of Section 311, but under the Evidence
Act which gives a party the right to cross-examine a witness.
C who is not his own witness. Since a witness summoned by the
Court could not be termed a witness of any particular party, the.
Court should give the right of cross-examination to the com-
plaina·nt. These aspects were highlighted in Jagat Raviv. State
of Maharashtra (AIR 1968 SC 178), Rama Paswan and Ors. v.
D State of Jharkhand (2007 (11) SCC 191) and lddar and Ors. v.
Aabida and Anr. (2007 (11) SCC 211).
10. In Mishra/a/ and Ors. v. State of M.P & Ors. (2005
(10) SCC 701 ), this Court observed inter alia as follows:

E "5. The learned counsel for the appellants seriously
attacked the evidence of PW 2 Mokam Singh. This witness
was examined by the Sessions Judge on 6.2.1991 and
cross-examined on the same day by the defence counsel.
Thereafter, it seems, that on behalf of the accused persons
F an application was filed and PW-2 Mokam Singh was
recalled. PW-2 was again examined and cross-examined
on 31. 7 .1991. It may be noted that some of the persons
who were allegedly involved in this incident were minors
and their case was tried by the Juvenile Court. PW 2
Mokam Singh was also examined as a witness in the
G
case before the Juvenile Court. In the Juvenile Court, he
gave evidence to the effect that he was not aware of the
persons who had attacked him and on hearing the voice
of the assailants, he assumed that they were some
Banjaras. Upon recalling, PW-2 Mokam Singh was
H
HANUMAN RAM v. THE STATE OF RAJASTHAN 357
AND ORS. [DR. ARIJIT PASAYAT, J.]
-{ confronted with the evidence he had given later before the A
Juvenile Court on the basis of which the accused persons
were acquitted of the charge under Section 307 IPC for
having made an attempt on the life of this witness."
6. In our opinion, the procedure adopted by the Sessions
Judge was not strictly in accordance with law. Once the witness 8
was examined in-chief and cross-examined fully; such witness
should not have been recalled and re-examined to deny the evi-
dence he had already given before the court, even though that
witness had given an inconsistent statement before any other
court or forum subsequently. A witness could be confronted only C
with a previous statement made by him. At the tim·e of examina-
tion of PW-2 Mokarn Singh on 6.2.1991, there was no such pre-
vious statement and the defence counsel did not confront him
with any statement alleged to have be:en made previously; This
witness must have given some other vers"tori before the Juvenile D
Court for extraneous reasons·.and he should.not have been given
a further opportunity at a later stage to completely efface the evi-
dence already given by him under oath. The courts have to follow
the procedures strictly and cannot allow a witness to escape the
legal action for giving false evidence before the court on mere E
explanation that he had given it under the pressure of the police
or some other reason. Whenever the witness speaks falsehood
in the court, and it is proved satisfactorily, the court should take a
serious action against such witnesses."

11. The factual scenario in Mishri Lal'§. case (supra) has F
great similarity with the facts of the present case. The High
Court's view for accepting the prayer in terms of Section 311 of
the Code does not have any legal foundation. In the facts of the
case, the High Court ought not to have accepted the prayer made
by the accused persons in terms of Section 311 of the Code. G
Above being the position, we set aside the impugned order of
the High Court.

12. The appeal is allowed accordingly.

B.B.B. Appeal allowed. H