In CRM-M-21341-2022-PUNJ HC- Sec.311 CrPC is to be used liberally but Court has to be cautious in invoking its power and should examine if application u/s 311 is filed to delay trial: P&H HC Justice Rajesh Bhardwaj [18-05-2022]

Read Order: Sahib Singh v. State of Punjab & Another 

Monika Rahar

Chandigarh, June 6, 2022: The Punjab and Haryana High Court has recently held that there is no dispute regarding the provisions of Section 311 Cr.P.C. to be used liberally, however, the Court has to be cautious in invoking its power under Section 311 and examine if the application under this Section has been filed to delay the trial. 

The Bench of Justice Rajesh Bhardwaj asserted, “Besides this, Section 311 Cr.P.C can be invoked if it appears to be essential to the just decision of the case and not for plugging the loopholes in the case. There is no gainsaying that the court has  been granted ample power under Section 311 Cr.P.C to prevent the injustice. However, in view of the law settled, it is apparent that the Hon’ble Supreme Court has laid down that the power under Section 311 Cr.P.C should be invoked only to meet the ends of justice.”

The Court was approached by the petitioner by way of filing the present petition impugning the order of the Addl. Sessions Judge, Fast Track Special Court, Patiala, whereby the application filed by the petitioner under Section 311 Cr.P.C in respect of an FIR registered under sections 354, 354-A, 506 IPC (section 8 of POCSO Act was added later on) at Police Station, Kheri Gandian, Patiala district Patiala, for recalling three prosecution witnesses for further cross examination, was dismissed. 

The main thrust of the arguments of the petitioner’s counsel was that the petitioner was being represented by some other counsel at the time of cross-examination of the aforementioned three witnesses. He submitted that thereafter he engaged a new counsel who inspected the file and found that certain material questions regarding the occurrence, mobile phone etc. were not put to the witnesses and hence filed the present application under Section 311 Cr.P.C. for recalling the witnesses. 

It was his case that provisions of Section 311 Cr.P.C. is liberal in nature and that the Trial Court failed to appreciate the same. Lastly, the Counsel added that the provisions of section 311 Cr.P.C allow summoning of the witnesses at any stage and hence the Trial Court committed error in declining the same and hence the impugned order deserved to be set aside. 

The Court, from a perusal of the record, opined that the victim (a minor) along with two other witnesses sought to be recalled, were cross-examined by the counsel for petitioner at length on earlier occasions also and that the present application under Section 311 Cr.P.C. was filed three months after examination of these three witnesses. 

The main contention of counsel for the petitioner for justifying the filing of application under Section 311 Cr.P.C was the engagement of a new counsel. 

From this, the Court concluded that the application filed under Section 311 Cr.P.C was filed deliberately and that it sensed every chance of the victim being pressurized and thus prejudice being caused to the trial. 

Thus, against this backdrop, the Court opined that undisputedly, the provisions of section 311 Cr.P.C. are to be used liberally, however, the court has to be cautious in invoking its power under Section 311 Cr.P.C and it should examine whether the application under Section 311 Cr.P.C has been filed to delay the trial. 

Besides this, Justice Bhardwaj added that Section 311 Cr.P.C can be invoked if it appears to be essential to the just decision of the case and not for plugging the loopholes in the case. 

Thus, while holding that the court has been granted ample power under Section 311 Cr.P.C to prevent the injustice, the Bench added, 

“However, in view of the law settled, it is apparent that the Hon’ble Supreme Court has laid down that the power under Section 311 Cr.P.C should be invoked only to meet the ends of justice. The power should be exercised for strong and valid reasons and it should be exercised with great caution and circumspection.”

Taking into consideration the arguments raised by counsel for the petitioner on the anvil of the law settled, the Court was of the opinion that the impugned order was hereby dismissed.