RECALLING OF WITNESSES: A BOON OR A BANE FOR THE CRIMINAL JUSTICE SYSTEM?

INTRODUCTION

The general bias in India towards the adversarial decision-making system is evident. We have a neutral judge that decides a particular case by listening and weighing the arguments presented by both sides. On the other hand, in an inquisitorial decision-making system the judge is actively involved with the lawyers in an attempt to get justice; the judge in this system is not just a decision-maker but is also involved with the purpose of finding the truth. Even though India doesn’t have a full-fledged inquisitorial system, our criminal procedure code has inserted some aspects of it into our criminal judicial system. One such element is seen under Section 202 of the criminal procedure code, which deals with private complaints. Through this section whenever there is a doubt, the judge can ask the police to further investigate the matter, this is an inquisitorial initiative. Another one of such inquisitorial tools can be seen when we take a look at Section 311 of the criminal procedure code, which allows the trial court to call independent witnesses, i.e., the witnesses that haven’t been listed either by the prosecution or the defence. These witnesses can be called if the judge feels that their contribution is essential in deciding the outcome of the case. This section allows the judge to take an initiative and expand his decision-making capabilities by going beyond the witness list that has been presented by the defence and the prosecution. So, in the larger adversarial system that India has there is an injection of an inquisitorial tool such as 311 and due to this reason, this section can be regarded as one of the most integral sections in the criminal procedure code. This section also encourages judges to take more part in the procedural part of the case by involving themselves deeper into the case.

Section 311 of the CrPC states that,

“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.”

In essence this section seeks to highlight that a judge has the power to summon or examine a material witness. A Court may summon any person to be a witness or examine any person attending, who is not a witness, at any stage of the investigation, trial or other procedure under this Code.

ANALYSIS OF THE SECTION THROUGH INDIAN CASE LAWS

The Supreme Court in several cases while examining Section 311 has in essence stated that the aim of section 311 is to discover the truth which is the predominant beauty of the criminal procedure code. One such example can be seen in Hanuman Ram Vs State Of Rajasthan & Ors on 13 October, 2008 the Honourable Supreme Court stated that,

“The object underlying Section. 311 of the Code 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 examined from either side. The determinative factor is whether it is essential to the just decision of the case.”

Further the case also sheds light on the extent to which Section 311 can be interpreted, by stating that,

“The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In 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 been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.”

It can clearly be seen that the Supreme Court has explained in great detail how the section is to be implemented and what meaning the section carries with it. The distinction between the first and second part of this section relies on just two mere words, “may” and “shall” as highlighted by the supreme court which goes on to show how integral each and every word is in determining the rationale behind any section in the criminal procedure. This judgement is important as it provides a standalone elongated explanation of Section 311.

The procedure of the trial once the independent witnesses summoned is by the court is that the court examines the witness and then gives a chance to the prosecution and the defence to examine the witness too. Technically here, the chief examination is done by the court then followed by the examinations by the prosecution and the defence. The procedure brought in by section 311 is what makes it an integral tool for India’s criminal judicial system. However, section 311 doesn’t serve this one and only purpose which makes it a double-edged sword.

To see how section 311 act as a double-edged sword we will have to look at an example. Let’s assume that two witnesses are contradicting each other and due to this reason, the judge can’t comprehend the reality of the matter and hence, calls back one of the witnesses through the powers given to him under section 311. This re-examination of a witness is known as recalling of a witness. If there is a genuine blockage or a doubt in the chain of circumstances, then re-examination of witnesses is a genuine solution. However, this provision can be enforced using two pathways, firstly the court can do it Suo Moto and secondly the parties can also seek the permission of the court. Heeralal Alias Nimma vs State Of M.P. also saw the supreme court take stand for the Suo Moto aspect of Section 311 by stating that,

“It is settled in law, if the conditions under this provision are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence, but it can do so on its own motion.”

The same ratio is also highlighted in the case of Mohan Lal Shamlal Soni vs Union Of India where the Supreme Court states that,

“At the risk of repetition it may be said that Section 311 (then Section 540) allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition.”

At times the defence or the prosecution can make an argument to re-call a witness on the grounds that his/her statement has casted doubts in the mind of the court or maybe is conflicting in nature as section 311 allows the lawyers of the parties to make such an application to the court. There is no limitation on the purposes on which recalling can be done, however this reason must be genuine in nature. Depending on the judge’s discretion the witnesses can be recalled, however, section 311 provides flexibility for the parties to revisit in case of any mistakes made in the initial phase of the trial. The Supreme Court expanded on the same in Hanuman Ram Vs State Of Rajasthan by stating that,

“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 essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge.”

Now, the part in which lawyers request re-examination of witnesses is often misused by lawyers and even more by defence lawyers to delay the trial as you’re essentially going back to examining a witness that has already been examined. A witness examination can take a long period of time and requires a lot of initial procedure such as issuing of summons, a delay can be caused due to personal reasons of the witness and further unavoidable reasons. So, the defence might use section 311 not just to recall the witness for substantive reasons of genuine doubt but to also put a hold to the trial or delay the trial to some extent. These concerns have been clarified by the Supreme in Natasha Singh V CBI (State), where the Supreme highlights that the provisions under Section 311 must not be misused; the court stated that,

“Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties.”

These clever tactics on part of the defence can easily be resolved if the judge identifies frivolousness of the application by the defence and decides the merit of the section 311 application purely on genuine substantive doubts. The Supreme Court in Rajaram Prasad Yadav Vs State Of Bihar & Anr (2013) expanded on how a 311 application should be looked at by stating that,

“The paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.”

Many defence lawyers don’t examine the prosecution witnesses in the initial stages of the trial just to ask for a re-examination of witnesses under section 311, however, a sensible judge wouldn’t allow such application just because he/she would sense what a frivolous reason is and to some extent would also be able to identify the genuine intentions of the defence lawyer. The part of section 311 that can be misused makes it an extremely important provision and also highlights how it is at the crux of it, a double-edged sword.

CONCLUSION

Section 311 even though put as an inquisitorial initiative in our Criminal Procedure Code is regularly being misused by lawyers to delay trials, however, this problem has a very simple solution which calls for an alert and active judge. The double-edged nature of this section can very easily be addressed if a judge can identify the intention through a witness is being re-called by the defence or the prosecution. It is essential that the through the help of the judicial system, Section 311 gets the positive recognition that it very rightly deserves.

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