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SECTION 311, 313 AND 319 – INTRICACIES AND CASE LAW
INTRODUCTION:
The provisions under sections 311, 313 and 319 of Criminal Procedure Code
important provisions which invoked in the process of criminal trial. The
provision under section 311 of Code of Criminal Procedure is used to summon
or recall any witness if his evidence is necessary to come to a just decision by
the court. The provision under section 313 Code of Criminal Procedure is an
important mandatory provision where incriminating circumstances in the
prosecution evidence are to be put the accused to enable him to explain the
said circumstances appearing against him. But such examination can be
dispensed with if there are no incriminating circumstances appearing against
him (Like in cases where all the witnesses turn hostile). The provision under
section 319 of Code of Criminal Procedure is an enabling provision where the
court is empowered to add third parties as accused in the case basing the
evidence given by the witnesses at the time of trial. Now, let us discuss the
the above provisions in detail along with relevant case law.
SECTION 311 – CRIMINAL PROCEDURE CODE, 1973
Section 311 of the Code of Criminal Procedure (CrPC) gives courts the power
to summon or recall witnesses at any stage of a trial, inquiry, or other
proceedings. The purpose of this section is to ensure that justice is not
compromised due to mistakes made by either party in presenting evidence.
DEFINITION:
Sec 311 Criminal Procedure Code,1973 / Sec 348 Bharatiya Nagarik
Suraksha Sanhita, 2023 : Power to summon material witness, or
examine person present.
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Any Court may, at any stage of any inquiry, trial or other proceeding under
this Code, summon 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.
The court can summon any person present, even if they were not originally
examined as a witness. The court can also recall and re-examine any person
who has already been examined. The court can also order people to provide
specimen signatures or handwriting. But, the court should only exercise this
power when it is essential to ensure a just decision. The power to summon a
witness or recall a witness shall be exercised only if it essential for the court
to reach to a just decision by exercising its judicial discretion to meet the
ends of justice.
CASE LAW:
1. Anurag Srivastava Vs. State of U.P. 2010 (71) ACC 504 (All), In the
above decision it was held as follows:
Summoning of Witnesses u/s 311 CrPC - Application for recall of witness for
further cross examination when not to be allowed: where an application u/s
311 CrPC was moved by the accused on the ground that the Witness has to
be cross examined on some important points, but the important points where
not mentioned in the application, the revision against order rejecting the
application by trial court u/s 311 CrPC was dismissed.
2. Vinod Kumar Vs. State of Punjab, (2015) 3 SCC 220.
Re-examination of witness u/s 137 & 138 Evidence Act is not limited to
ambiguities in cross-examination. If Public prosecutor feels that certain
answers require more elucidation from witness, he has the freedom and right
to put such question as he deems necessary for that purpose, subject of
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course to control of court in accordance with other provisions. But the court
cannot direct him to confine his questions to ambiguities alone which arose in
cross-examination. SEE ALSO Rammi Vs. State of MP, (1999) 8 SCC 649.
3. Supreme Court guidelines for exercising powers u/s 311 CrPC: In the case
reported in Rajaram Prasad Yadav Vs. State of Bihar, AIR 2013 SC
3081 (para 23), the Hon'ble Supreme Court has laid down following
guidelines and governing principles for exercising powers u/s 311 CrPC to
summon, recall or reexamine any person as witness:
(i) Whether the Court is right in thinking that the new evidence is needed by
it? Whether the evidence sought to be led in under Section 311 is noted by
the Court for a just decision of a case?
(ii) The exercise of the widest discretionary power under Section 311, CrPC
should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice
would be defeated.
(iii) If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and reexamine any such person.
(iv) The exercise of power under Section 311, CrPC should be resorted to
only with the object of finding out the truth or obtaining proper proof for such
facts, which will lead to a just and correct decision of the case.
(v) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing
serious prejudice to the accused, resulting in miscarriage of justice.
(vi) The wide discretionary power should be exercised judiciously and not
arbitrarily.
(vii) The Court must satisfy itself that it was in every respect essential to
examine such a witness or to recall him for further examination in order to
arrive at a just decision of the case.
(viii) The object of Section 311, CrPC simultaneously imposes a duty on the
Court to determine the truth and to render a just decision.
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(ix) The 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.
(x) Exigency of the situation, fair play and good sense should be the
safeguard, while exercising the discretion. The Court should bear in mind that
no party in a trial can be foreclosed from correcting errors and that if proper
evidence was not adduced or a relevant material was not brought on record
due to any inadvertence, the Court should be magnanimous in permitting
such mistakes to be rectified.
(xi) The Court should be conscious of the position that after all, the trial is
basically for the parties and the Court should afford an opportunity to them in
the fairest manner possible. In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a
discretionary power, may lead to undesirable results.
(xii) The additional evidence must not be received as a disguise or to change
the nature of the case against any of the party.
(xiii) The power must be exercised keeping in mind that the evidence that is
likely to be tendered, would be germane to the issue involved and also
ensure that an opportunity of rebuttal is given to the other party.
(xiv) The power under Section 311, CrPC must therefore, 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
Court should bear in mind that fair trial entails the interest of the accused,
the victim and the society and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured being a
constitutional goal, as well as a human right.
5. Calling witness for cross examination after long gap deprecated by the
Supreme Court: It is not justified for any conscientious trial Judge to ignore
the statutory command, not recognize "the felt necessities of time: and
remain impervious to the cry of the collective asking for justice or give an
indecent and uncalled for burial to the conception of trial, totally ostracizing
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the concept that the civilized and orderly society thrives on the rule of law
which includes "fair trial" for the accused as well as the prosecution.
Adjournments are sought on the drop of a hat by the counsel, even though
the witness is present in court, contrary to all principles of holding a trial.
That apart, after the examination-in-chief of a witness is over, adjournment is
sought for cross examination and the disquieting feature is that the trial
courts grant time. The law requires special reasons to be recorded for grant
of time but the same is not taken note of. In the instant case the cross-
examination has taken place after a year and 8 months allowing ample time
to pressurize the witness and to gain over him by adopting all kinds of
tactics. In fact, it is not at all appreciable to call a witness for cross-
examination after such a long span of time. It is imperative if the
examination-in-chief is over, the cross-examination should be completed on
the same day. If the examination of a witness continues till late hours the
trial can be adjourned to the next day for cross-examination. It is
inconceivable in law that the cross-examination should be deferred for such a
long time. It is anathema to the concept of proper and fair trial. The above
legal position was laid down in a decision reported in Vinod Kumar Vs.
State of Punjab, (2015) 3 SCC 220.
SECTION 313 – CRIMINAL PROCEDURE CODE, 1973
The provision Section 313 of the CrPC has its root in the principal of natural
justice i.e., Audi Altera, Partem. It is based on the one of the most
fundamentals to be observed in the process of criminal trial that the accused
should be called upon to explain the incriminating circumstances appearing
against him from the prosecution evidence and should thus be given an
opportunity of stating his own case.
The object of Section 313 of the Code is to establish a direct dialogue
between the court and the accused. The whole object of Section 313 CrPC is
to afford the accused a fair and proper opportunity of explaining
circumstances which appear against him. The questioning must therefore be
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fair and must be in such a form which an ignorant or illiterate person will be
able to appreciate and understand. Questioning an accused under Section
313 CrPC is not an empty formality.
The requirement of Section 313 CrPC is that the accused must be explained
the circumstances appearing in the evidence against him so that accused can
offer an explanation. After an accused is questioned under Section 313 CrPC,
he is entitled to take a call on the question of examining defence witnesses
and leading other evidence. If the accused did not explain the incriminating
circumstances appearing against him in the evidence on which his conviction
is sought to be based, the accused will not be in a position to explain the said
circumstances brought on record against him. He will not be able to properly
defend himself.
DEFINITION
Section 313 Criminal Procedure Code,1973/Section 351 Bharatiya
Nagarik Suraksha Sanhita, 2023: Power to examine the accused.
(1)In every inquiry or trial, for the purpose of enabling the accused personally
to explain any circumstances appearing in the evidence against him, the
Court –
(a) may at any stage, without previously warning the accused, put such
questions to him as the Court considers necessary;
(b)shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the
personal attendance of the accused, it may also dispense with his
examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under
sub-section.
(3)The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them.
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(4)The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry
into, or trial for, any other offence which such answers may tend to show he
has committed.
(5)The Court may take help of Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the accused and the Court may
permit filing of written statement by the accused as sufficient compliance of
this section.] [Inserted by Code of Criminal Procedure (Amendment) Act,
2008 (5 of 2009), Section 22.]
Under Section 313 the following things need to be considered while
examining the accused
1. The statements given under this section do not have evidentiary value.
Accused is not entitled to punishment even if he has given a false answer to
the questions.
2. Accused has the right to remain silent and cannot be compelled to speak.
Accused is free to answer or refuse to answer the question asked.
3. Language of Section 313 of CrPC is easily comprehensible so that it leaves
no place for misapprehension for the purpose of the section.
4. The scope and purpose of the question to be asked is limited i.e. the object
of the section is to enable the accused to explain the circumstances that are
being used against him as evidence. There is a statutory obligation on courts
to put forward questions to the accused while the accused do not have any
obligation to answer them.
5. While questioning the accused on any point that is incriminating or
significant which can result in injustice or prejudice shall not be left out. Any
such point cannot be used against the accused if it is left out while
questioning.
6. While examining the deaf and dumb accused proper care has to be taken.
The court is duty-bound to take the help of an interpreter or someone who
can comprehend the signs of the accused for knowing the criminal nature of
the act done by the accused, whether the accused is deaf or mute. Ashraf
Ali v. State of Assam 2008 AIR SCW 5608
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The Court deliberated on the objective of Section 313. It stated the objective
of Section 313 was to initiate a dialogue between the court and the accused.
It is proper and logical to question the accused about a point of evidence if it
is an important piece of information against the accused, and his/her
conviction is to be based on the same. State of Nagaland v. Lipok Ao;
2007 Cr.L.J. 3395 (DB)
Ajai Singh v. State of Maharashtra; AIR 2007 SC 2188
Under section 313, Cr.P.C. (1)(b), it is mandatory for the trial Judge to put to
the accused every such piece of evidence which appears incriminating
against him and reply of the accused shall be sought thereto.
Mohan Singh v. Prem Singh AIR 2002 SUPREME COURT 3582
If the prosecution evidence does not inspire confidence to sustain the
conviction of the accused, the inculpatory part of his statement under Section
313 of Criminal Procedure Code cannot be made the sole basis of his
conviction.
In INDRAKUNWAR V. THE STATE OF CHHATTISGARH, CRIMINAL
APPEAL No.1730 OF 2012
Citing extensive thread of precedents, the Top Court penned down the
following principles.
1. The object, evident from the Section itself, is to enable the accused to
themselves explain any circumstances appearing in the evidence against
them.
2. The intent is to establish a dialogue between the Court and the accused.
This process benefits the accused and aids the Court in arriving at the final
verdict.
3. The process enshrined is not a matter of procedural formality but is based
on the cardinal principle of natural justice, i.e., audi alterum partem.
4. The ultimate test when concerned with the compliance of the Section is to
enquire and ensure whether the accused got the opportunity to say his piece.
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5. In such a statement, the accused may or may not admit involvement or
any incriminating circumstance or may even offer an alternative version of
events or interpretation. The accused may not be put to prejudice by any
omission or inadequate questioning.
6. The right to remain silent or any answer to a question which may be false
shall not be used to his detriment, being the sole reason.
7. This statement cannot form the sole basis of conviction and is neither a
substantive nor a substitute piece of evidence. It does not discharge but
reduces the prosecution's burden of leading evidence to prove its case. They
are to be used to examine the veracity of the prosecution's case.
8. This statement is to be read as a whole. One part cannot be read in
isolation.
9. Such a statement, as not on oath, does not qualify as a piece of evidence
under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory
aspect as may be borne from the statement may be used to lend credence to
the case of the prosecution.
10.The circumstances not put to the accused while rendering his statement
under the Section are to be excluded from consideration as no opportunity
has been afforded to him to explain them.
11.The Court is obligated to put, in the form of questions, all incriminating
circumstances to the accused so as to give him an opportunity to articulate
his defence. The defence so articulated must be carefully scrutinized and
considered.
12.Non-compliance with the Section may cause prejudice to the accused and
may impede the process of arriving at a fair decision.
Section 319 in The Code of Criminal Procedure, 1973
In law, there are two competing principles – “dubio pro reo” which means
that, when in doubt, the judge must rule in favour of the accused and “judex
damnatur cum nocens absolvitur” which means that “a judge is condemned
when a guilty is unpunished”. These maxims underscore the complexities of
ensuring justice and demand efforts from legislature as well as the judiciary
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to strike a balance and ensure that a fair trial is conducted. And thus, to
uphold the constitutional mandate as provided under the Constitution of
India, 1950 vide Article 20 which provides protection for individuals with
respect to conviction for offences and Article 21 which speaks about right to
life and personal liberty. Therefore, keeping that in mind, the legislature
incorporated Section 319 of Code of Criminal Procedure,1973 (Hereinafter
referred to as CrPC) to ensure justice.
DEFINITION
SECTION 319 CRIMINAL PROCEDURE CODE, 1973/SECTION 358
BHARATIYA NAGARIK SURAKSHA SANHITHA,2023: Power to proceed
against other persons appearing to be guilty of offence.
(1)Where, in the course of any inquiry into, or trial of, an offence, it appears
from the evidence that any person not being the accused has committed any
offence for which such person could be tried together with the accused, the
Court may proceed against such person for the offence which he appears to
have committed.
(2)Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose
aforesaid.
(3)Any person attending the Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of the inquiry into,
or trial of, the offence which he appears to have committed.
(4)Where the Court proceeds against any person under sub-section (1), then
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(a)the proceedings in respect of such person shall be commenced afresh, and
the witnesses re-heard;
(b)subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the Court took cognizance of the
offence upon which the inquiry or trial was commenced
Case law:
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Hardeep Singh v State of Punjab 2014 (3) SCC 92
In this case, the court delved into the nuance interpretation and application
of Section 319 of CrPC, and it clarified several questions surrounding Section
319.
(a) It was held that Section 319 can be invoked at any stage if compelling
evidence demonstrates a person’s involvement in the offence. Further, the
court emphasized that the evidence under Section 319 not only includes
cross- examination but also those made during examination-in-chief.
(b) A person not named in FIR or person though named but dropped out and
not chargesheeted may also be summoned under 319 Cr.P.C.
(c) If the accused was discharged after considering of all the material
brought on record, then he cannot be summoned u/s 319 Cr.P.C.
Brindaban Das v State of WB AIR 2009 1248 SC para 20 –
There should be some substantial evidence against the individual to summon
him. If there is no direct evidence, hearsay evidence cannot be the basis for
issue of summons u/s 319 Cr.P.C. There is no difference between direct and
circumstantial evidence for invoking power u/s 319 Cr.P.C.
Shankar v State of UP 2024 SCC Online SC 730 – Standard of material
required to invoke the discretionary powers u/s 319 Cr.P.C. - only when the
evidence is strong and reliable, power may be exercised.
Sukhpal singh kaira v State of Punjab 2023 (1) SCC 289
➢ Guidelines that the competent court must follow while exercising power u/s
319 Cr.P.C. – 12 golden rules -
(i) If the competent court finds evidence or if application under Section 319
of CrPC is filed regarding involvement of any other person in committing the
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offence based on evidence recorded at any stage in the trial before passing
of the order on acquittal or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise to summon
the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under Section 319 of
CrPC and summon the accused, such summoning order shall be passed
before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed, depending on
the stage at which it is passed, the Court shall also apply its mind to the fact
as to whether such summoned accused is to be tried along with the other
accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only
after securing the presence of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on
such order being made, there will be no impediment for the Court to continue
and conclude the trial against the accused who were being proceeded with.
2023 INSC 794 Between Asim Akthar Vs State of West Bengal – Not
Mandatory to decide application U/s 319 Cr.P.C before cross examination.
Under section 319 Cr.P.C, though test of prima facie case is same, Degree of
satisfaction that is required is much stricter.
2024 INSC 130 – N.Manogar and Anr. Vs The Inspector of Police and
Others -
What is the test to apply 319 Cr.P.C ? More than a prima facie, as exercised
at the of framing of charge but short of evidence that if left unrebutted would
lead to conviction.
2023 INSC 652- YASHODHAN SINGH And Others Vs The State of Uttar
Pradesh and Anr.
Whether the accused summoned as per section 319 of Cr. P.C has right to be
heard before in the trial? NO
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Whether the discharge application under section 227 of Cr.P.C preferred by
accused is maintainable, who is summoned under section 319 Cr.P.C.? NO
2023 INSC 654- SANDEEP KUMAR Vs THE STATE OF HARYANA AND
ANR.
WHETHER A PERSON CAN BE SUMMONED AS PER SECTION 319 OF Cr.P.C
THOUGH THERE IS NO MATERIAL AGAINST HIM IN THE FINAL REPORT AND HE
IS FOUND INNOCENT DURING INVESTIGATION? YES
CONCLUSION:
Sections 311, 313 and 319 of CrPC are provisions that aid the principles of a
fair trail by giving opportunity to the accused to ascertain the value,
conditions and circumstances lying beside any evidence. The sections are of
great importance and are pillars that support the desire for equity in judicial
scrutiny and to meet the ends of justice.
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