Section 311 of Cr.P.C. is one of the significant features of criminal law, empowering courts to perform its duty in cases where calling any person or recalling any of the witnesses is crucial in order to answer some questions that are left unanswered during the proceedings of the Court.
[Section 311. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine 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.]
Sec. 311-A was inserted in the CrPC by the Amendment Act of 2005. It deals with power of a Magistrate of the First Class to direct any person including an accused to give specimen signature. However, the proviso suggests that no such order shall be passed unless the person has been arrested in connection with the investigation or proceeding.
[Section 311A Power of Magistrate to order person to give specimen signatures or handwriting.
If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.]
Section 311 upholds the sanctity of the ‘innocent until proven guilty’ rule.
The rule of ‘audi alteram partem’ is one of the principles of natural justice, which means ‘hear the other side’. Section 311, by providing a mechanism for recalling the witnesses, ensures that this rule is being followed in the criminal procedure.
Any person can be summoned under this Section at the following stages:
- Stage of inquiry- The term ‘inquiry’ has been defined under Section 2(g) of the Criminal Procedure Code, 1973 as “inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court”. An inquiry is done in order to extract information that is important for the case at hand.
- Stage of trial- It is essential for the system of justice that a fair trial be conducted in a court of law. For this, the summon is issued to the accused and other persons whose presence is valuable for the case.
- Other proceedings- The scope of Section 311 has been enlarged with the use of the term ‘other proceeding’. It is applicable to any proceeding that is carried out under the Criminal Procedure Code. In the case of Mohanlal Shamji Soni v. Union of India (1991), the appellant contended that the decision regarding the examination of witnesses by the Union of India was incorrect since the case was pending for a considerable amount of time and the defense arguments were also concluded. The Supreme Court observed that there is no limitation with regard to the stage of the trial and hence, the focus should be to obtain the evidence which is essential for a just decision in a case. Therefore, in order to ensure justice, the examination and re-examination of the witnesses were permitted.
Another important aspect of Section 311 of the 1973 Code is the suo moto power of the court to call or recall witnesses. The court may be dealing with some cases where the parties have not shown any will to call the witnesses whose evidence could be instrumental in making a just decision. In those cases, the court can exercise this power in its own motion.
An application under Section 311 can be filed at the stage of inquiry, trial, or other proceedings. It can be invoked if the summoning and examination of the witnesses are essential for the just decision of the case. If this requirement is fulfilled, the court has to accept the application under Section 311.
In this post we will learn how to draft an application under section 311 of Code of Criminal Procedure, 1973 for summoning and examination of witness in the cheque bounce case.
DRAFT OF APPLICATION UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE, 1973 FOR SUMMONING AND EXAMINATION OF WITNESS, IN THE INTEREST OF JUSTICE
IN THE COURT OF SH. _______________, JMIC, GURUGRAM
N.I. ACT/………./2017
VK …Complainant
Versus
RK …Accused/Applicant
APPLICATION UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE, 1973 FOR SUMMONING AND EXAMINATION OF WITNESS, IN THE INTEREST OF JUSTICE
Respected Sir,
- That the above noted case is pending before this Hon’ble court and the said matter is listed for today.
- That two material witnesses i.e. Concerned Manager – RR Bank Ltd., Branch At ……………… DL, Delhi-110037– along with record of A/C No. …………………….. Authorized signatory of this A/C or Sigh Verify for this A/C and Handwriting Expert with the permission of this Hon’ble Court are required to be examine for the proper adjudication of the present complaint. The mentioned witness is material and necessary witness to prove the case.
- That the said witness is important and crucial witness for the proper adjudication of the case and due to some inevitable circumstances, the respondent could not examine the said witness.
- That in order to prove the present case, the examination of the above mentioned witness is very much essential.
PRAYER:
Therefore this Hon’ble court may graciously be pleased to allow the present application and thereby issue summons to the witness above mentioned for examination, in the interest of justice.
Any other order/directions which this Hon’ble court may deem fit may also kindly be passed in favour of the applicant/accused, in the interest of justice.
Date:- Applicant
Through Counsel
Draft of Affidavit
IN THE COURT OF SH. _______________, JMIC, GURUGRAM
N.I. ACT/………./2017
VK …Complainant
Versus
RK …Accused/Applicant
AFFIDAVIT IN SUPPORT OF APPLICATION
I, RK S/O Sh. _________ aged about _____ years R/O ______, Delhi-32, do hereby solemnly affirm and declare as under:-
- That I am the respondent/applicant and am well conversant with the facts of the case and hence competent to depose to this affidavit.
- That I have gone through the contents of the accompanying application under Sec. 311, CR.P.C. and the contents of the same are true and correct to the best of my knowledge and nothing material has been concealed therein.
DEPONENT
VERFICATION:
Verified at Gurugram, this Day of October , 2023 that the contents of the above affidavit are true to my knowledge, no part of it is false and nothing material has been concealed therein.
DEPONENT