Section 311 of The Code of Criminal Procedure, 1973

Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a Presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. The Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest.

The Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a ‘just decision’.

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.

That the Court should be magnanimous does not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean ‘the liberal approach’ shall be the rule and all other parameters shall become exceptions.

In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, that is 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for a ‘just decision’ of the case or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions… It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the Court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction.”

–  Hon’ble Justice Dipak Misra, State of Haryana v. Ram Mehar, [Criminal Appeal No. 805 of 2016].

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