SC Allows Section 311 Application, Says Power Of Court Not Constrained By Closure Of Evidence

The Supreme Court of India, on August 8, allowed an appeal against a judgment of Madhya Pradesh High Court whereby application for summoning under Section 311 of the Criminal Procedure Code 1973 (Cr.P.C.) came to be dismissed. 

Bench of Justices DY Chandrachud and AS Bopanna observed, “The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar.”

Facts

The appellant’s husband (an advocate) was brutally murdered in 2015. An FIR under Sections 302 and 34 of the Indian Penal Code 1860 (IPC) came to be registered.

The post-mortem report confirmed that the death occurred due to firearm injury. Five accused persons were arrested. After investigation, charge sheet was filed before the court.

Documents from the cellular companies like Vodafone, Airtel, Idea and Reliance were enclosed with the chargesheet. Nodal officers of the cellular companies were examined before the court and their statements were recorded. The concerned Station House Officer (SHO) also filed a disc which contained call data records of the accused persons. 

The CD could not be recorded as evidence as it was corrupted. Several opportunities were given to the SHO to produce the CD in court but to no avail.

An application under Section 311 of the Cr.P.C. was filed and the Court ordered for the production of the CD. Thereafter as many as three more applications under Section 311 and 91 were filed to summon nodal officers of cellular companies. 

The application moved to produce decoding register was dismissed by the court. The High Court had agreed with the position of the Trial Court.

Contentions

Senior Advocate Ramakrishnan Viraraghavan appeared on behalf of the appellant and argued that there was no bar on filing application under Section 311 Cr.P.C even after closing of evidence.

Advocate Shreeyash U Lalit appeared on behalf of the state of MP and supported the appellant’s case.

Senior Advocate SK Gangele and Advocate Bansuri Swaraj appeared on behalf of the accused-respondents and opposed the plea of the appellant. It was argued that Section 301 of the Cr.P.C barred the spouse of the deceased to pursue these proceedings. It was further argued that evidence had been closed long back and now application under Section 301 could not be entertained.

Observations

The Court noted that, “The objection which has been raised by the respondents on the basis of the provisions of Section 301 CrPC lacks substance. Sub-section (1) of Section 301 stipulates that the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear without written authority before any court in which the case is under inquiry, trial or appeal.  Sub-section (2) of Section 301 postulates that if any such case, any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. 27 In the present case, the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way.”

The Court held Section 301 inapplicable to the instant appeal. 

On Section 311, the Court observed that, “The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.”

The Court rejected the arguments advanced on behalf of the accused-respondents and stated that, “The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar.”

Decision

The Court held the orders of the Trial Court and the High Court as unsustainable and allowed the application of the appellant for the production of decoding register and summoning of witnesses was allowed.