Indian Penal Code, 1860
Section 302 & 201—Double murder—Capital punishment—Right to fair trial—To secure a fair trial, is not solitary responsibility—The Judge; the investigator; the investigating agency; and the counsel of either side, each have their own responsibility—Prosecutor in the present case seemed to have missed his duty as an officer of the court—Change of counsel; belated appointment of amicus curiae/defence counsel; closure of opportunity to cross-examine; recording of evidence in the absence of defence counsel are all factors that the prosecutor, in their solemn duty ought to have objected to and brought to the notice of the court, as contravening the principle of a fair trial—Summary rejection of application filed under Section 311 of CrPC—Improper—Principles regarding Section 313 CrPC summarized in Raj Kumar v. State (NCT of Delhi), 2023 SCC Online 609 were clearly not followed—Prosecution and the trial proceeded in casual manner—No explanation can be found for lackadaisical approach of the prosecution—Conviction set aside and matters are remanded to the trial court for deciding afresh in accordance with law.
[Paras 21, 24, 25, 31 & 32]
Criminal Procedure Code, 1973
Section 311—Examination of witnesses—Principles governing the application of Section 311 of the CrPC are :
(a) The Section is divided into two parts, the first being directory with the use of the word ‘may’ and the latter being mandatory with the use of the word ‘shall’.
(b) The power of the Court is couched in the widest terms possible with no express limitation thereon.
(c) The exercise of such power is not only the prerogative but also the duty of the Court, in connection with a witness who may be considered absolutely necessary, in the interest of justice.
(d) This power is to be used both for the benefit of the prosecution and the defence. To summon a witness because it serves the case of one of the parties and not the other, would be improper.
(e) This power can be exercised at any stage of proceedings, i.e. enquiry, trial or any other.
(f) Power is to be exercised judiciously since wider the power, greater the requirement of the application of a judicial mind.
(g) If a witness so-called under this power, gives evidence against the complainant, the latter should be given an opportunity to cross-examination. This power arises not under Section 311 but under the Indian Evidence Act, 1872.
(h) A witness cannot be recalled by the use of this power to simply fill up a lacuna in the case of the prosecution.
[Para 30.1]
Criminal Trial
Right to fair trial—To secure a fair trial, is not solitary responsibility—The Judge; the investigator; the investigating agency; and the counsel of either side, each have their own responsibility.
[Para 11]