As per Section 311 of the Code of Criminal Procedure 1973 - “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 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 the case of Rajaram Prasad Yadav Vs. State of Bihar, (2013) 14 SCC 461, the following principles were culled out vis a vis Section 311 of the Code of Criminal Procedure, 1973 by the Hon’ble Supreme Court:

1. Whether new evidence is required?
2. Exercise of wide discretionary power under Section 311 of the Code of Criminal Procedure, 1973, judgment should not be rendered on inconclusive or speculative grounds.
3. The exercise of power under Section 311 of the Code of Criminal Procedure, 1973 should only be resorted with the object of finding out the truth.
4. Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
5. The Power under Section 311 of the Code of Criminal Procedure, 1973 should be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection.

The Division Bench of the Hon’ble Supreme Court recently in Satbir Singh Vs. State of Haryana & Others, 2023 SCC OnLine SC 1086 reiterated the established position of law that Section 311 of the Code of Criminal Procedure, 1973 should be invoked only for the ends of justice to be met and it should be exercised with caution and circumspection. The present appeal had been filed against the order passed by the Hon’ble High Court of Punjab and Haryana, by which the prayer for recall of the Appellant as a witness in the trial before the Court for further examination had been rejected.

Brief facts of the Case:

1. The Appellant made a complaint against the Accused that they, being ex-employees of his company, had stolen company data and used such data to manufacture equipment, which was being manufactured by the Appellant’s company.
2. During trial, before the report from the Central Forensic Sciences Laboratory, Chandigarh (hereinafter referred to as “CFSL”) could come, the evidence of the Appellant was recorded. However, when the CFSL expert who had prepared the report was examined on 20th August, 2021 by the Court, though he described the data which was found on the hard disks of the Accused, but there was no reference as to whether they were comparable to/same in regard to what was allegedly stolen from the Appellant’s company. Thus, under the circumstances, the Appellant was constrained to apply for his recall as a witness, whichh was done within five days of the evidence of the CFSL expert being recorded that is on 25th August, 2021.
3. The same was rejected before the Learned Trial Court and then before the Hon’ble High Court after which it was challenged before the Hon’ble Apex Court.

Arguments
The Learned Counsel for the Appellant submitted before the Hon’ble Court that there was no previous occasion for him to put any question with regard to comparison of data as the CFSL expert had clearly taken a stand that he had not submitted any report with regard to comparison of the two sets of data. It was further submitted that the comparison of the two sets of data was the main essence of the complaint and without the same, the trial itself would be reduced to a farce. The Learned Counsel for the Appellant further submitted that the Courts erred in reckoning the delay counting it from the date of first lodging of the complaint though the same should have been considered from the date of cause of action arose that is on 20th August, 2021 and the application was filled on 25th August, 2021.

The Learned Counsel for the Respondents argued that the Appellant cannot be, and should not be allowed to fill up the lacunae left in the earlier round, at the current stage and further added that the Appellant is only indulging in dilatory tactics as he has every opportunity to make submissions, as he deems fit, during arguments which were yet to be concluded.

Observations
The Hon’ble Bench while considering the appeal relied upon a few decisions of recent vintage including its own decision in Ratanlal Vs. Prahlad Jat, (2017) 9 SCC 340 in which the Hon’ble Apex Court held:

“In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the Accused and the prosecution but also from the point of view of any orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.”

The Hon’ble Apex Court further quoted its own decision in Manju Devi Vs. State of Rajasthan, (2019) 6 SCC 203, wherein the Hon’ble Court emphasized that a discretionary power like Section 311 of the Code of Criminal Procedure, 1973 is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring that no prejudice is caused to anyone.

In Harendra Rai Vs. State of Bihar, 2023 SCC OnLine SC 1023, a 3-Judge Bench of the Hon’ble Supreme Court was of the opinion that Section 311 of the Code of Criminal Procedure, 1973 should be invoked when ‘....it is essential for the just decision of the case.’

Held
The Hon’ble Supreme Court after having considered the present matter and after surveying the law, found that a case of interference had been made out. The Division Bench while allowing the appeal also allowed the application of the Appellant under Section 311 of the Code of Criminal Procedure, 1973 for his recall to be further examined as a witness. It was further observed that under the peculiar facts of the present case, the request for recall of the Appellant under Section 311 of the Code of Criminal Procedure, 1973 was justified, as at the relevant point of time in his deposition, there was no occasion for the Appellant to bring the relevant facts relating to similarity of data before the Trial Court, which arose after the CFSL expert was examined. The Hon’ble Bench further directed for the trial to be concluded within 9 months from the date of the receipt of this judgment.

By - Soumya Kamat