In this article the author has brought into focus, section 311 and section 313 of the Code Of Criminal Procedure, 1973 chapter XXIV while throwing light on the constitutional and jurisprudential essence of the CrPC followed by the case laws. Section 311 of CrPC gives power to the court to summon the material witness, to examine the witness and circumstances in which the court can summon the witness for re-examination. Section 313 of the CrPC gives the power to examine the witness which gives the accused a just chance to speak in his case also section 313 gives the essence of natural justice.
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Constitutional Essence of CrPC
The idea of the constitutional essence infused in any law is based upon the fact of its relative connection with the core essence of the Constitution. The Constitution being the supreme document that no law can violate the essential principle of that Constitution or be devoid of those basic principles. The Constitution is based upon certain basic principles and elements e.g.:- Justice, Equity, reasonableness, non-arbitrariness, balancing of interest, a good conscience, etc.
These principles are omnipresent in the Constitution and are inseparable from the it therefore every law will have these principles embedded in it and no law can devoid of these principles. CrPC is also based upon principles of Justice, Equity, Reasonableness, Non-arbitrariness, etc., The ultimate goal of CrPC is to do balancing of interest to further ends of justice.
Jurisprudential Essence of CrPC
Every law does the act of balancing of interest either between the individuals or between the individual and the society. As far as the operation of CrPC goes., it has to be understood that a crime is to be considered to be wrong against society as it shakes the societal conscience and society hence the state represents the society in prosecuting in criminal matters. It is in the societal interest that the culprit should be found out, prosecuted, convicted, and punished. Thus during the process of prosecution any restriction on the accused has to be imposed which will be justified on the ground of societal interest and proportionality.
Section 311 of Cr. P.C.
Power to summon material witness, or examine a person present.
Under section 311 of CrPC the court has given the power to summon the material witness. Section 311 is divided into two parts. In the first part, the word “may” is written which gives the power to the court to decide whether they want to call the witness or not. In the second part the word “shall” has been written which makes it obligatory for the court to summon the witness if it is vital for the case. Usually, the prosecution or the defense calls for the witness but under section 311 the court has the power if it thinks fit that the witness is essential for the case or if it thinks that it can be a material witness. In any case, if the prosecution or the defense had already called him and examined him then the court still has the power under section 311 to re-examine the witness. Further, it depends on the facts and circumstances of the case, if it is so vital for any case then it becomes obligatory for the court to call the witness.
Section 311 can be well understood by the case laws, some of the case laws are discussed here below:-
Zaheera Habibullah H. Sheikh v. State of Gujarat
This case is pertaining to section 406 and section 311 of CrPC It is also known by the name of the best bakery case. There were riots and the bakery in the Hanuman tekri area in Vadodara Gujarat was burned and the aggressive mob made the Sheikh family target who ran that bakery and had taken shelter there. The workers and Zaheera Halibullah were scared as all of the witnesses became hostile. Also, all the accused were acquitted. After that Zaheera gave the statement as an eye witness. In the High Court, the party gave the application under sections 406 and 311. Section 406 is for the transfer of the case from one HC to another HC for a fair trial. After this, they go to the Supreme Court for a fair trial. In Bombay HC, the Zaheera said that she didn’t see anything. Then the SC took suo-moto action and punished Zaheera for forgery under section 193.
The court held that even if the allowing of the witness would amount to rectification of mistake, the witness shall be allowed for the just decision of the case.
Natasha Singh v. CBI (State)
The court held that the power to summon under Section 311 relates to the material witness and it can be exercised in any state with the purpose of the just decision. The power can be exercised judiciously and consciously.
Manju Devi v. Rajasthan
The SC held that in Section 311, the Court has the discretion that has to be exercised judicially and not in an arbitral manner. The court can do suo-moto also for the purpose of section 311 is to find out the proper proof of the relevant facts. Additional evidence shall not be received as it disguises for re-trial or for changing the nature of the trial to protect the trial. Section 311 can’t be used to fill up the lacuna of prosecution and defense. It cannot be used to cause an unfair advantage to the party or disadvantage to the opposite party. However, despite all the above if the court is satisfied the interest of justice is so required in that case then the court shall allow application but the right to rebuttal should be given to the opposite party.
Section 313 of Cr. P.C.
Power to examine the accused
CrPC is also a dimension of the rule of the best evidence and it enables the accused to personally explain to the court the justification that he has regarding the evidence which have been provided by the prosecution. It is a dimension of the principle of “natural justice” that the accused is given an opportunity to explain the circumstances i.e., evidence proved against him, it is expected that the examination of the accused under section 313 should be a purely personal examination without any interference of the lawyers. The purpose of the examination is to enable the accused to personally explain the circumstances appearing in the evidence against him and the court ‘may examine the accused under section 313(1)(a) at any stage of the proceedings were as under section 313(1)(b) it is mandatory to examine him at the stage after prosecution evidence and before defense evidence starts.’ In clause (1)(b) the word “shall” has been used, whereas in clause (1)(a) the word “may” has been used thus the examination under (1)(b) is mandatory.
Section 205 of the CrPC provides for dispense with personal attendance: Section 313 of Cr. P.C. dispense with examination there can be a situation where the dispense of appearance is given but dispense from the examination can not be given. It is the discretion of the court. In the proviso, it is provided that if the personal attendance of the accused has been dispensed with in a summon case [ 205 CrPC] then the court has a discretion which also dispenses with an examination of clause (b) but it is not mandatory, thus even if the court has dispensed with the personal attendance it may still summon the accused for the purpose of examination under clause (b). For exemption from examination it is essential that the accused must first have been dispensed with his personal appearance. Without such dispensation from appearance, dispensation from examination can not be obtained.
Oath not given to the accused
In the general rule the oath cannot be administered to the accused if oath is administered then that will amount to compelling the accused to be a witness were as accused can’t be compelled to be a witness he has freedom to speak or not to speak which also leads to the violation of Article 20(3) that states as no person accused of an offence shall be compelled to be a witness against himself. If the accused was administered oath then the opposite party would have gotten a right to cross examine which is not actually there in Section 313. Furthermore if any element of completion is brought in through the mechanism of oath the spontaneity of the statement of accused would be lost.
If the oath is used as evidence then every accused will create a self serving statement and that would be against the spirit of “nemo judex in causa sua” that literally means “no one is judge in his own case”. This is the principle of ‘natural justice’ .
Section 313(3) clearly gives the complete freedom to accused to refuse to answer the question and even to give false answers. By refusing to answer he will not be liable for section 179 I.P.C. The purpose of giving such freedom to make his answer spontaneous, there has to be harmony between clause (2) and (3) therefore oath can’t be made compulsory under clause.
Section 313(4) says that the answers given by the accused can not be considered in that case as evidence but can be considered as evidence in another trial or inquiry which deemed that he has committed. There are various case laws to understand this section, some of them are discussed here below :-
Keya Mukherjee v. Magma Leasing Ltd. & Anr.
In this case the appellant has first filed an application under Section 401 read with Section 482 of CrPC which was rejected by the court. The proceedings were for Section 138 of the Negotiable Instrument Act that had taken place for which she was granted bail. She further filed an application under Section 205 of CrPC for her dispense and under Section 313(1)(b) for dispense of examination. The learned magistrate accepted her application on the condition that she have to be present whenever she will be called and rejected the application for Section 313 (1)(b). The revision application was filed to Additional Session Judge which was again dismissed as they had focused on the proviso of 313 (1)(b) which states that “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).”which gives the judicial discretion to the Magistrate as the word “may” is written in the proviso, which states that the Magistrate “may or may not” allow the application for exemption from examination under section 313 of CrPC. Also he had stated that the appellant has filed the application under section 205 but not before the fixing of the examination u/s 313(1)(b) of CrPC After that the order has been challenged in the High Court. The High Court had also dismissed the application and stated the same reason as the Additional Session Judge and also said that the accused have permission under Section 205 CrPC to be represented by a pleader but he has no right to ask the Magistrate for exemption for his personal examination u/s 313 as it is not the spirit of law. Further in this case the court has given the reference of “Bibhuti Bhusan Das Gupta v. State of West Bengal” in which it was held that the pleader cannot represent the accused for the intent of Section 342 old Code ( now Section 313 CrPC).
Section 311 of Cr. P.C. the court has given the power to summon the material witness. The court has the power if it thinks fit that the witness is essential for the case or if it thinks that it can be a material witness. In any case, if the prosecution or the defense had already called him and examined him then the court still has the power under section 311 to re-examine the witness, also it depends on the facts and circumstances of the case, if it is so important for any case then it becomes obligatory for the court to call the witness. Section 313 is about ‘natural justice’ it has given right to the accused to speak on his behalf it indicates the maxim of “audi alteram partem”. In the first part it is not mandatory for the court but in (b) it becomes mandatory for the court to examine the accused. Section 205 of the CrPC provides for dispense with personal attendance: Section 313 of CrPC dispense with examination there can be a situation where the dispense of appearance is given but dispense from the examination can not be given. It is the discretion of the court. In the proviso, it is provided that if the personal attendance of the accused has been dispensed with in a summon case. The oath cannot be administered to the accused if the oath is administered then that will amount to compelling the accused to be a witness were as accused can’t be compelled to be a witness he has freedom to speak or not to speak which also leads to the violation of Article 20(3). Section 313(3) clearly gives the complete freedom to accused to refuse to answer the question and even to give false answers, it is so to make consonance between (2) and (3) of section 313. Section 313(4) says that the answers given by the accused can not be considered in that case as evidence but can be considered as evidence in another trial or inquiry which deemed that he has committed.
- The Code of Criminal Procedure,1973, s.311.
- 2004 (5) SCC. 353.
- (2013)5 SCC 741.
- 2019 (6) SCC 203.
- The Code Of Criminal Procedure,1973, s.313.
- 2008(8) SCC 447.
- The Code of Criminal Procedure, 1973, s.313.
- 1969 (2) SCR 104.
BY PRAKAMYA MAHESHWARI | LLOYD LAW COLLEGE GREATER NOIDA