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Rama Paswan And Others v. State Of Jharkhand .
Factual and Procedural Background
An FIR was lodged alleging that PW-4 (“the victim”) was raped on 30-5-1992, attracting Section 376 of the Indian Penal Code. A charge-sheet followed on 29-9-1994. Trial progressed slowly: prosecution witnesses were examined between 1994 and 2004, and when no further prosecution witnesses attended hearings on 18-5-2004, 28-5-2004 and 10-6-2004, the trial court closed prosecution evidence. Statements under Section 313 CrPC were recorded on 16-6-2004, defence evidence taken from 25-6-2004 to 13-12-2004, and the matter was listed for argument.
Before arguments, the accused moved an application under Section 311 CrPC to recall the victim for further cross-examination, asserting that the parties had privately “settled” the dispute and that darkness had prevented proper identification. On 1-4-2005 the trial court rejected the application, emphasising the ten-year pendency of the case and the discretionary nature of Section 311.
The accused then invoked Section 482 CrPC in the Jharkhand High Court, appending a “compromise petition.” The High Court dismissed the petition, noting that (a) rape under Section 376 IPC is non-compoundable, and (b) the victim had already been examined and cross-examined.
The present appeal challenged the High Court’s order.
Legal Issues Presented
- Whether, in the circumstances, the trial court erred in refusing to recall the victim under Section 311 CrPC for further cross-examination.
- Whether the High Court ought to have exercised its inherent powers under Section 482 CrPC to permit recall of the victim or otherwise give effect to a private “compromise” in a prosecution for an offence under Section 376 IPC, which is statutorily non-compoundable.
Arguments of the Parties
Appellants' Arguments
- The parties had settled their dispute privately; continuing the prosecution would therefore not serve the interests of justice.
- The High Court should have exercised its inherent jurisdiction under Section 482 CrPC to give effect to this settlement and allow further cross-examination of the victim.
State's Arguments
- Supported the orders of the trial court and High Court, contending that Section 376 IPC is non-compoundable and that the discretionary power under Section 311 CrPC had been properly exercised.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 | Explains that Section 311 CrPC empowers a court, in its discretion, to summon or recall witnesses; the right to cross-examine a witness called by the court arises from the Evidence Act. | Quoted to illustrate the breadth yet discretion-bound nature of Section 311, and the court’s duty to ensure justice while preventing misuse meant merely to fill “loopholes.” |
Court's Reasoning and Analysis
The Supreme Court reviewed the full text and purpose of Section 311 CrPC, noting its two-part structure: a discretionary “may” and a mandatory “shall” when evidence is essential to a just decision. The Court emphasised:
- Section 311 is framed in the “widest possible terms” but its discretion must be exercised judicially.
- The trial court had already weighed the necessity of recalling the victim and found it unwarranted after a decade-long trial and completed cross-examination.
- The supposed compromise could not override the statutory bar: Section 376 IPC is expressly non-compoundable under Section 320 CrPC.
- No exceptional circumstance was shown to make additional testimony of the victim “essential to the just decision of the case.”
Accordingly, neither the trial court’s refusal nor the High Court’s affirmation was found erroneous. The Supreme Court concluded that intervention under Article 136 was unwarranted.
Holding and Implications
Appeal Dismissed.
Immediate consequence: the trial proceeds on the evidence already recorded; the victim will not be recalled for further cross-examination. The Court reaffirmed that offences under Section 376 IPC cannot be compounded and that Section 311 CrPC cannot be invoked to facilitate private settlements. No new legal doctrine was articulated, but the decision reinforces existing limits on judicial discretion in such contexts.
Dr. Arijit Pasayat, J.— Leave granted.
2. The appellants call in question legality of the order passed by a learned Single Judge of the Jharkhand High Court dismissing the petition filed by the appellants.
3. Background facts, in a nutshell, are as follows:
Alleging that PW 4 (hereinafter referred to as “the victim”) was subjected to rape, attracting punishment under Section 376 of the Penal Code, 1860 (in short “IPC”) first information report (in short “FIR”) was lodged by the informant. The date of occurrence was stated to be 30-5-1992. The charge-sheet was filed on 29-9-1994. The examination of witnesses after framing of charges continued from 1994 to 2004. After examination of several witnesses on 18-5-2004 the trial court directed the production of further witnesses, if any. Since no prosecution witness was present on 18-5-2004, 28-5-2004 and 10-6-2004, evidence of prosecution was closed. On 16-6-2004 the statement of accused persons was recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short “the Code”). The evidence of the defence witnesses was recorded between 25-6-2004 and 13-12-2004. Thereafter the matter was placed for argument.
4. At this stage an application purported to be under Section 311 of the Code was filed for recalling of the victim for further cross-examination on the ground that the parties have settled the dispute outside the Court at the intervention of the well wishers and also the informant could not identify the persons who allegedly committed the offence due to darkness. The trial court rejected the application by order dated 1-4-2005. The trial court was of the view that in view of the circumstances indicated it would not be proper to allow the application of the accused for recalling the victim. The same was accordingly dismissed. It was noted that the case was pending for trial for more than ten years.
5. Application in terms of Section 482 of the Code was filed before the High Court which was dismissed by the impugned order. The High Court was of the view that the compromise petition which was annexed to the petition under Section 482 of the Code referred to purported compromise between the parties. The High Court noted that Section 376 IPC is not compoundable and when the victim was examined and cross-examined during trial, the prayer to recall the victim is not acceptable. Accordingly the petition was rejected.
6. In support of the appeal, learned counsel for the appellants submitted that when parties have settled the disputes, continuance of the proceeding would not be in the interest of the justice and the High Court should have exercised jurisdiction under Section 482 of the Code.
7. Learned counsel for the State on the other hand supported the orders passed by the trial court and the High Court.
8. The scope and ambit of Section 311 of the Code, which reads as follows, needs to be noted:
“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.”
9. “26. … 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. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
27. 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 of 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 the 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 any 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.
28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short ‘the Evidence Act’) are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be ‘filling of loopholes’. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178, 1968 Cri LJ 231.”
10. Considering the ambit of Section 311 of the Code, it does not appear to be a case where any interference is called for. What is the effect of evidence already recorded shall be considered by the trial court. Since Section 376 IPC is not compoundable in terms of Section 320 of the Code, the trial court and the High Court rightly rejected the prayer. We find no scope for interference in the appeal. Our non-interference shall not be construed as if we have expressed any opinion on the merits of the case.
11. The appeal is dismissed.
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