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Synopsis

The Supreme Court has said that Section 311 of the Criminal Procedure Code gives discretionary power to the court to summon any person as a witness or to recall or re-examine the person already examined, but such a course of action is only permissible if the court is satisfied that the prayer to recall and re-examine the witness is not made to fill in the lacuna and that the non-summoning of the witnesses would cause serious prejudice to the accused. 

A bench of Justices P S Narasimha and Sandeep Mehta rejected a plea by Neha Begum and others, after finding that the prayer made by the petitioners in the application to recall and re-examine the witnesses was nothing but an attempt to fill in the lacuna. 

"There is nothing on record to suggest that non-summoning of the witnesses for further cross examination could cause grave prejudice the accused and that such a cause of action was essential for a just decision of the case," the bench said.

The special leave petition preferred on behalf of the accused petitioners took exception to the judgment and order of January 19, 2024 passed by the single judge of the Gauhati High Court.

The high court had dismissed the plea by the petitioners under Section 482 of the Code of Criminal Procedure, 1973, affirming the order of March 9, 2021, passed by the Sessions Judge, Dibrugarh.

The petitioners faced trial for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 before the Sessions Judge, Dibrugarh. 

The trial of the case had proceeded significantly, whereafter the petitioners filed an application under Section 231(2) read with Section 311 CrPC with a prayer to further cross-examine the prosecution witnesses No 1, 2, 3, 6, 7, and 8. The said application came to be rejected by order of March 9, 2021.

The counsel for the petitioners vehemently and fervently contended that the trial court as well as the high court proceeded on a totally wrong premise that the petitioners were simply praying for further cross-examination of the witnesses which could not be accepted as further cross-examination obviously follows re-examination and the prosecution had never re-examined the witnesses, thus, the defence could not be allowed to re-cross examine the prosecution witnesses.

The bench, however, said, "Having gone through the impugned order passed by the High Court, we find that the said submission is fallacious on the face of the record".

The court pointed out that it was true that the trial court had made a passing observation in the order that unless the witnesses had been re-examined by the prosecution, no opportunity of re-cross examination could be given to the defence.

"However, on going through the order passed by the High Court, we find that the High Court has duly considered the factual aspects in context to the statutory provisions and held that the prayer made on behalf of the petitioners by way of the application under Section 311 CrPC was to recall the witnesses and to permit the defence to conduct further cross-examination from them," court said.

Upon apropos examination of the entire material available on record, the high court held that the grounds set out in the application praying for an opportunity of further cross-examination of the witnesses were vague and unsubstantiated, the bench pointed out.

Court noted the thrust of the submissions made on behalf of the accused petitioners in support of the prayer to recall and allow further cross examination of the prosecution witnesses was that their erstwhile engaged lawyer had not properly cross examined the witnesses.

"We may note that Section 311 CrPC operates in two parts, the first part clothes the court with a power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandates that the court shall summon and examine or recall and re-examine such person, if his evidence appears to be essential to the just decision of the case," the bench said.

The bench also cited the judgment of Rajaram Prasad Yadav Vs State of Bihar and Anr (2013) wherein the top court culled out the principles to be borne in mind while exercising the power under Section 311 CrPC. 

After going through the subject application filed by the petitioners in the trial court by invoking the provisions under Section 231(2) read with Section 311 CrPC, the bench said, "We find that other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial court to invoke the power under Section 311 CrPC".

Court thus dismissed the petition, holding the impugned order did not suffer from any infirmity.

Case Title: Neha Begum & Ors vs. the State of Assam & Anr