Introduction
Courts possess major powers to achieve justice through having access to all important evidence. An essential power of this authority allows judges to request additional trial witnesses upon need. Decisions to call material witnesses and examine individuals present or order production come from the intersection of section 311 CrPC and Evidence Act section 165. The judicial authority possesses two parallel authority powers that it may exercise on its own initiative (suo-moto) or after receiving requests from either or both parties.
Background
The debate regarding court powers to summon additional witnesses occurs within a Supreme Court decision about the murder of an inter-caste married couple named Murugesan-Kannagi through an honor killing in 2003 Tamil Nadu. The murderers of S Murugesan who belonged to the Dalit Community and D Kannagi who belonged to the Vanniyar community carried them out through a horrendous killing. Their secret wedding was discovered by Kannagi’s family which resulted in their murder by forced insecticide consumption until they died. Their bodies were subsequently burned. The case is recognized as one of the initial instances of “Honour Killing” in Tamil Nadu. The government passed the investigation to CBI because they determined initial police work lacked professionalism.
When the trial began the court encountered complications regarding PW-49 (step-mother of Murugesan) who was never mentioned as a witness during the initial CBI chargesheet process. Under Section 311 CrPC the prosecution submitted an application to get her declared as an additional witness to appear in court. This was challenged on the ground that she should have been called as a ‘Court witness’ rather than a prosecution witness due to concerns she might turn hostile and benefit the accused.
Key Points
Several overarching legal principles guide the court’s discretion under Section 311 CrPC, often read with Section 165 of the Evidence Act:
- Necessity for a Just Decision and Access to Valuable Evidence: A fundamental principle is that the court should not be deprived of the benefit of any valuable evidence. The power is exercised when the court feels the evidence of a person is necessary for a just decision. The necessity is determined by the Court based on the facts of the particular case. The object is to ensure the court is apprised of the best evidence available.
- Rectifying Omissions and Oversights: The court can allow the examination of a witness who ought to have been examined as a prosecution witness but was omitted from the list due to oversight, mistake, or for any other reason.
- Wide Discretionary Power: The language of Section 311 CrPC indicates that there is a wide discretion with the Courts.
- Complementary Nature of Powers: The powers under Section 311 CrPC and Section 165 of the Evidence Act are complementary. The court can invoke its power under Section 311 read with Section 165 to call a person as a Court witness.
- Exercise at Any Stage: The power under Section 311 CrPC can be invoked at any stage of the trial, even after the closing of the evidence.
- Suo-Moto or Upon Application: These powers can be exercised suo-moto by the Court or on an application moved by either side. While the court cannot compel either party to call a witness, it can call one as a Court witness under these provisions.
The Supreme Court drew a distinction between summoning a person as an ‘additional witness’ (e.g., an additional prosecution witness) and as a ‘Court witness’. Summoning an additional witness allows for a lot of discretion. When a person is allowed to be examined as a prosecution witness because they were omitted earlier, the normal course of examination-in-chief, cross-examination, etc., would follow. However, when the Court calls a person as a Court witness, there are some restrictions regarding cross-examination. No party can claim cross-examination of a Court witness as a matter of right, though it must be allowed with the leave of the Court, especially if the witness says something prejudicial to any party.
Recent Developments
In the instant case, the Supreme Court dismissed the appeals filed by eleven convicts and two policemen, upholding the Madras High Court’s judgment which had confirmed the life sentences for ten convicts and commuted a death sentence to life for one. The Court specifically addressed the challenge regarding PW-49 being summoned as a prosecution witness. The Supreme Court held that there was nothing wrong with the Trial Court summoning the witness as a Prosecution Witness. This decision was in line with the principle that if a person ought to have been examined as a prosecution witness but was omitted, the court can allow their examination as such under Section 311 CrPC. The Court clarified that the trial court allowing the prosecution’s application to summon PW-49 as an additional witness was a valid exercise of discretion, distinct from the rules governing the examination of a Court witness.
Additionally, the Supreme Court directed the grant of Rs 5 Lakhs compensation jointly to the father and step-mother of Murugesan.
Conclusion
The power of the court to summon additional witnesses under Section 311 CrPC, complemented by Section 165 of the Evidence Act, is a crucial tool for ensuring that trials are conducted fairly and that all necessary and valuable evidence is brought before the court. This power, guided by the principle of achieving a just decision, can be exercised with wide discretion at any stage of the trial, either suo-moto or upon application. The court can rectify omissions in witness lists and facilitate the examination of individuals crucial for uncovering the truth. While there is a distinction in the procedural rights related to cross-examination depending on whether a witness is called as an additional party witness or a Court witness, the core principle remains the court’s ability to seek out evidence necessary for justice. The Supreme Court’s recent decision in the Kannagi-Murugesan case reaffirms the trial court’s broad discretion in allowing additional witnesses to be examined as prosecution witnesses when deemed necessary due to prior omission.
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WRITTEN BY ABHINAV VERMA
