In CRL.M.C. 6089/2019-DEL HC- Provisions of Sec 311 of CrPC cannot be used to delay proceedings or cause inconvenience to other party, rules Delhi High Court
Justice Swarana Kanta Sharma [21-12-2023]

Read Order: ADITYA SARDA v. ARJUN SINGH

Tulip Kanth

New Delhi, December 29, 2023: The Delhi High Court has dismissed a petition challenging the dismissal of an application under section 311 of CrPC while observing that ample opportunities were available to the petitioner/complainant for summoning additional witnesses but the application u/s 311 was preferred only at the stage of final arguments.

The Single-Judge Bench of Justice Swarana Kanta Sharma was considering a petition filed under Section 482 of the Criminal Procedure Code, 1973 on behalf of the petitioner against the impugned order dated 23.11.2019 passed by the Additional Chief Metropolitan Magistrate, Rohini Courts, New Delhi whereby the application under Section 311 of Cr.P.C. preferred by the complainant was dismissed.

The petitioner, in this case, had filed a complaint under Section 499 and 500 of Indian Penal Code against the respondent. Thereafter, notice under Section 251 of Cr.P.C. was served to the respondent in the year 2012. The examination-in-chief of the complainant had commenced on 24.04.2018. The right of the respondent to further cross-examine the complainant was closed. Thereafter, the respondent had filed an application under Section 311 of Cr.P.C. before the Trial Court for recalling of witness which was allowed, after which the complainant was partly cross-examined and finally discharged on 14.12.2018.

The petitioner had moved an application for summoning of additional witnesses which was allowed by the Trial Court. Thereafter, it came to the knowledge of the petitioner that there were certain witnesses that might have had records which were relevant to the case and an application under Section 311 of Cr.P.C. was filed before the Trial Court which was dismissed vide order dated 23.11.2019.

It was argued from the petitioner’s side that the mandate of Section 311 of Cr.P.C. is to bring to light the relevant facts that may be important for proper adjudication of trial. The complainant had filed the application under Section 311 of Cr.P.C. before the Trial Court for summoning of witnesses as the records in relations to letter which were written by the accused were relevant to the facts of the present case and essential for establishing the case of the prosecution.

On the contrary, the respondent submitted that the application under Section 311 of Cr.P.C. was filed by the complainant to delay the trial and the complainant had taken ample time to record his evidence.

After placing reliance upon Vijay Kumar v. State of U.P. [LQ/SC/2011/1003] ; State (NCT of Delhi) v. Shiv Kumar Yadav [LQ/SC/2015/1198] ; Ratanlal v. Prahlad Jat [LQ/SC/2017/1391], the Bench reaffirmed that the recall of witness is not a matter of course and power under Section 311 of Cr.P.C. has to be exercised judiciously, with caution and circumspection, and not arbitrarily or capriciously, on the basis of facts and circumstances of each case.

It was further reinstated that the discretionary power has to be balanced carefully with considerations such as uncalled for hardship to the witnesses and uncalled for delay in trial.

Coming to the merits of the case, the Bench held that complaint in the present matter was filed in the year 2011 and the trial had been delayed for a fairly long period. It was further noted that the complainant's evidence commenced on 26.07.2013 and due to one reason or another, the evidence of the complainant was deferred and it was finally concluded after a period of more than six years.

The Bench took note of the fact that an application under Section 311 of Cr.P.C. was filed by the present petitioner/complainant for summoning of additional witnesses on 18.01.2019, which was allowed by the Trial Court, but no record could be produced. The complainant was then required to take appropriate steps for locating the relevant record and get the same produced before the Trial Court but the petitioner failed to do so.

The application under Section 311 of Cr.P.C. was filed by the petitioner before the Trial Court at the stage of final arguments which was dismissed. The present petition had also been filed at a stage when the judgment was already reserved in the matter and it was put up for pronouncement by the Trial Court.

Noting that ample opportunities were available to the petitioner/complainant for summoning of additional witnesses and the application under Section 311 of Cr.P.C. was preferred only at the stage of final arguments, the Bench held, “…this Court is of the opinion that the provisions of Section 311 of Cr.P.C. cannot be used to delay the proceedings or to cause inconvenience to the other party as that also amounts to miscarriage of justice by delaying the trial, or for abuse of process of law.”

Thus, without finding any merit in the petition, the Bench dismissed the same.