I am again prompted by the argument in Salman Khan's bail application before Bombay High Court as to eye witness Kamaal Khan not examined. Nothing prevented him from applying for summoning Kamaal Khan as witness during the trial. Rather S. 311 CrPC mandates the court to summon and examine such person if his evidence appears to it to be essential to the just decision of the case. If Salman Khan believed he would be vindicated by evidence/examination of Kamaal Khan, he had a duty to the court to seek summons for his examination. Now after being convicted, raising the plea is strange.
Section 311 of the CrPC reads as follows:- " 311. Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though no summoned as a witness, or re-call 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.
In exercising the second part which is mandatory the Court is required to take the recourse of Section 165 of the Evidence Act as the person so called is a witness of Court and not a prosecution or defence witness and it is an impediment upon the prosecution to examine or cross-examine the witness prior to the Court.
Abdul Mannan vs State of WB http://indiankanoon.org/doc/125632071/
Kolkatta High Court at paras
14) The section is manifestly in two parts. Whereas the word used in the first part is 'may', the second part uses 'shall'. In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code
(a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.
15) The scope of exercise of powers under Section 311 of the Code of Criminal Procedure has fallen for consideration of the Hon'ble Supreme Court in the matter of Iddar and others Vs. Aabida and another reported in AIR 2007 SC 3029/2007 Cr.L.J. 4313 wherein the Hon'ble Supreme Court observed - " The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
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