Holding

Section 311 CrPC empowers a criminal court to summon and examine material witnesses, including the investigating officer, at any stage, and therefore the Sessions Judge must issue such summons and the High Court’s order restraining recall of the earlier order is set aside.

Summary

The appellant alleged that his mother was murdered and the accused were charged under Sections 148, 149, 323, 449 and 302 of the IPC. The Sessions Judge closed the prosecution evidence because the appellant did not request further examination of witnesses. After the case was transferred, a new Sessions Judge recalled that order and directed the appellant to produce witnesses, but the High Court set aside the recall, holding that a criminal court cannot revisit its earlier order. The State then filed an application under Section 311 of the CrPC to summon material witnesses, which was rejected, and the appellant’s criminal miscellaneous petition was also dismissed. The Supreme Court held that Section 311 gives the court wide power to summon and examine material witnesses, including the investigating officer, at any stage, and that the Sessions Judge has a duty to issue such summons. Consequently, the High Court’s order was set aside, the application under Section 311 was allowed, and the trial was directed to proceed with the proper summoning of witnesses.

Issues considered

Whether a criminal court can recall its earlier order closing prosecution evidence.
Whether Section 311 of the Criminal Procedure Code empowers the court to summon material witnesses, including the investigating officer, at any stage of the trial.
Whether the Sessions Judge has a duty to issue summons to the investigating officer when he fails to appear.
Whether the High Court erred in refusing the State’s application under Section 311.

Legislation cited

Code of Criminal Procedure, 1973s. 309, s. 311

Subjects

murder trialSection 311 CrPCsummons of witnessesinvestigating officerrecall of court ordercriminal procedureprosecution evidence

Judgment

SHAILENDRA KUMAR A
v.
STATE OF BIHAR AND ORS.

NOVEMBER 28, 2001

[M.B. SHAH, B.N. AGRAWAL AND ARIJIT PASAYAT, JJ.] B

Criminal Trial :

Trial ~f murder case-It is the duty of the Trial Judge to issue summons
to the Investigating Officer, if witnesses.failed to remain present during trial ~f
a case.
c
Criminal Procedure Code, I973 :

Section 3 I I-Powers under-It empowers the Court to summon material
witnesses though not summoned as witness and to examine or recall or re- D
examine if their evidence appears to be essential to the just decision of the
case-It is of very wide amplitude-Court could examine witnesses at any
stage.

Mother of the appellant was allegedly done to death by the accused E
armed with lethal weapons and forming unlawful assembly. FIR was lodged
against the accused persons. The case was taken up for trial and charges
for the offence punishable under Sections 148, 149, 323, 449 and 302 I.P.C.
were framed against the accused persons.
F
The Sessions Judge after examining the formal witnesses closed the
prosecution evidence on the ground that APP has not prayed for examin-
ing other witnesses. The prosecution tiled an application for transferring
the case from the Court of the said Sessions Judge, who had superannu-
ated and the case was transferred to the Court of another Sessions Judge,
who recalled the earlier order and directed the APP to produce the wit- G
nesses on the next date of hearing. The accused challenged it by tiling
Revision Petition. The High Court allowell it on the ground that a criminal
Court cannot recall its earlier order.

State filed an application under Section 311 of the Code of Criminal H
371
372 SUPREME COURT REPORTS [200 I] SUPP. 5 S.C.R.

A Procedure for examining the witnesses. The Additional Sessions Judge
rejected it. However, at the hearing, APP remained absent. The appellant-
informant preferred Criminal Misc. Petition which was dismissed by the
High Court.

In this appeal, the said Order passed by the High Court was chal-
B
lenged. The Officer-in-Charge of the Police Station submitted that he was
never served with notice or summon by any Court of law or any other
agency including APP. to bring the witness upto the trial Court.

Allowing the appeal, the Court
c HELD : 1.1. In a murder trial it is sordid and repulsive matter that
without informing the Officer-in-Charge of the Police Station, the matters
were proceeded by the Court and by the APP and tried to be disposed of as
if the prosecution has not led any evidence. It appears that accused wants to
frustrate the prosecution by unjustified means and the Additional Sessions
D Judge as well as APP have not taken any interest in discharge of their duties.
It was the duty of the Sessions Judge to issue Summons to the investigating
Officer if he failed to remain present at the time of trial of the case. It should
be well understood that prosecution cannot be frustrated by such methods
and victhn of the crime cannot be left in lurch. [374-G-H; 375-A-B]
E
1.2. Section 311, Cr. P.C. empowers the Court to summon material
witnesses though not summoned as witness and to examine or recall and
re-examine if their evidence appears to it, be essential to the just decision
or the case; that it is of very wide amplitude and if there is any negligence,
p !aches or mistakes by not examining material witnesses, the Courts func-
tion to render just decision by examining such witnesses at any stage is not,
in any way, impaired. [375-C-D-F]

Rajendra Prasad v. Narcotic Cell, [1999] 6 SCC 110, relied on.

G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1218
of 2001.

From the Judgment and Order dated 3.7.2000 of the Patna High·Court
in Cr!. M. No. 16453 of 2000.

H Ms. Kamakshi S. Mehlwal, for the appellant.
SHAILENDRA KUMAR v. STATE [SHAH, J.] 373

B.B. Singh and Shiva Pujan Singh for the Respondents. A

The Judgment of the Court was delivered by

SHAH, J. Leave granted.

This appeal has been filed against the judgment and order dated 03. 7 .2000
B
passed by the High Court of Patna in Cr!. Misc. No.16453 of 2000 confirming
the order dated 2.6.2000 passed by the Additional Sessions Judge, Gaya.

It is the contention of the appellant that his mother was done to death
by the accused by forming unlawful assembly who were armed with lethal C
weapons. FIR was lodged with Bodh Gaya police station on 9.10.1991 against
15 named accused and 25 to 30 unknown persons. On 27.8.1993 the case was
taken up for trial by the 5th Additional Sessions Judge, Gaya in Sessions Trial
No. 24 of 1993. Charges were framed against the accused persons on 27 .8.1993
for the offence punishable under Sections 148, 149, 323, 449 and 302 !PC. D

After examining two or three formal witnesses, the learned Sessions
Judge closed the evidence of prosecution on the ground that APP has not made
any prayer either oral or written for adjournment or for examining other
witnesses. The prosecution evidence was declared to have been closed and the
E
matter was fixed for recording the statement of accused.

Thereafter, the prosecution filed an application for transferring the case
from the Court of 5th Addi. Sessions Judge. However, the 5th Addi. Sessions
Judge was superannuated and the case was transferred to 2nd Addi. Sessions
Judge, Gaya, who by his order dated 20.9.1995 was pleased to recall order F
dated 3.9.1994 passed by the 5th Addi. Sessions Judge, Gaya by which the
prosecution evidence was directed to be closed. He also directed the APP to
produce the witnesses on the next date of hearing.

That order was challenged by the accused by filing Criminal Revision G
No. 530 of 1995 before the High Court of Patna. The High Court vide its order
dated 1.2.2000 allowed the revision application on the ground that "it is well
settled that criminal court can not recall his earlier order".

Again on 12.5.2000 the State filed an application under Section 311 of H
374 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A Code of Criminal Procedure before the Addi. Sessions Judge, Gaya for exam-
ining the witnesses. That application was rejected by order 2.6.2000 on the
ground that application by the State has no meaning in view of the order passed
by the High Court in revision application. At the time of hearing of that
application, APP remained absent. Thereafter, the appellant-informant pre-
B ferred Criminal Misc. No.16453 of 2000 before the High Court. That applica-
tion was also dismissed by impugned judgment on the ground that it was not
proper for the High Court to interfere with the order passed by the Sessions
Judge. That order is challenged by filing this appeal, wherein it has been
contended lhat the previous order passed by the High Court on dated 1.2.2000
C is on the face of it illegal, erroneous and against the provisions of Cr.P.C.

In counter filed by officer-in-charge of Bodh Gaya Police Station, Dis-
trict Gaya, it has been pointed out that the con:erned Investigating Officers,
at present, are not posted at Bodh Gaya Police Station and even in other police
stations within the District of Gaya. He specifically states, "it is submitted t'iat
D he was never served with notice or summon or in no way communicated by
the Court of law or any other agency including APP. to bring the witness up
to the trial court." He also staled that after perusing the entire relevant record
and registers at the office of Bodh Gaya police station, Gaya he has not found
any summon or any sort of notice concerning the case under reference received
E by his office. In paragraph no.9, he has clarified that after investigation it was
found that summons were issued against witnesses no. I to 3 through Nazir of
Civil Court, Gaya but surprisingly enough the said summons were never
moved to the police station Bodh Gaya. It is his further say that if opportunity
is given, the witnesses named in the charge-sheet could be brought before the
F court either by issue of notices or summons and he will make his best efforts
to produce the witnesses before the concerned court within reasonable time.

In our view, in a murder trial it is sordid and repulsive matter that without
informing the police station officer-in-charge, the matters are proceeded by the
G Court and by the APP and tried to be disposed of as if the prosecution has not
led any evidence. From the facts stated above, it appears that accused wants
to frustrate the prosecution by unjustified means and it appears that by one way
or the other the Addi. Sessions Judge as well as the APP have not taken any
interest in discharge of their duties. It was the duty of the Sessions Judge to
H issue summons to the investigating officer if he failed to remain present at the
SHAILENDRA KUMAR v. STATE [SHAH, J.] · 375
time of trial of the case. The presence of investigating officer at the time of trial A
is must. It is his duty to keep the witnesses present. If there is failure on part
of any witness to remain present, it is the duty of the Court to take appropriate
action including issuance of bailable/non-bailable warrants as the case may be.
It should be well understood that prosecution cannot be frustrated by such
methods and victims of the crime cannot be left in lurch. B

Learned counsel for the respondent-accused however submitted that in
. this case there is no question of referring to Section 3_11 Cr.P.C., in view of
earlier order dated 1.2.2000 passed by the High Court setting aside the order
dated 20.9.1995 passed by the Additional Sessions Judge recalling the order C
dated 3.9.1994 by which the prosecution evidence was declared to have been
closed. This ·submission is without any substance. Section 311 empowers the
Court to summon material witnesses though not summoned as witness and to
examine or recall and re-examine if their evidence appears to it to be essential
to the just decision of the case. It reads thus:- D
"3 l l.Po1ver.to summon material witness, or examine person present-
Any Court may. at any stage of any inquiry, trial or other proceeding
under this Code, sununon 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
E
and examine or recall and re:...examine any such person if his evidence
appears ·to it to be essential to the j'ust decision of the case:"

Bare reading of the aforesaid section reveals that it is of very wide
amplitude and if there is any negligence, !aches or mistakes by not examining F
material witnesses, the Courts function to render just decision by examining
such witnesses at any stage is not, in any way, impaired. This Court in Rajendra
Prasad v. Narcotic Cell, [1999) 6 SCC 110 observed, "After all, function of
the criminal court is administration of criminal justice and not to count errors
1--
I committed by the parties or to find ?Ut and declare who among the parties G
performed better".

In this view of the matter, appeal is allowed. Impugned order passed by
the High Court confirming the order dated 2.6.2000 of Additional Sessions
Judge, Gaya is set aside. Application filed by the State under Section 311 H
376 SUPREME COURI' REPOIITS [200 I) SUPP. 5 S.C.R.
A Cr.P.C. is allowed. The Sessions Judge is directed to proceed with the matter
on day to day basis by strictly adhering to Section 309 Cr.P.C., and directing
the officer-in-charge of police station Bodh Gaya to keep witnesses present in
the court for their examination.

S.K.S. Appeal allowed.

'·