Section 311 CrPC: Judicious Exercise of Power to Summon Witnesses in Criminal Proceedings

Introduction

The criminal justice system in India is fundamentally built upon the discovery of truth and delivery of justice through fair and transparent proceedings. Within this framework, the Code of Criminal Procedure, 1973 (CrPC) provides various tools to ensure that courts can access all material evidence necessary for rendering a just decision. Among these provisions, Section 311 CrPC stands as a crucial instrument that empowers courts to summon or recall witnesses at any stage of criminal proceedings. However, recent judicial pronouncements have emphasized that this power, while wide in scope, must be exercised with restraint and only when evidence is truly indispensable for arriving at the truth.[1]

The Supreme Court of India, in the recent judgment of Mayankkumar Natwarlal Kankana Patel v. State of Gujarat (2025), reinforced the principle that Section 311 CrPC should be invoked sparingly and only when the evidence sought is essential for a just decision.[2] This judgment, delivered by Justices Vikram Nath and Augustine George Masih on December 19, 2025, has once again brought into focus the delicate balance between the court’s power to ensure truth and the rights of the accused to a fair and expeditious trial.

Legislative Framework: Understanding Section 311 CrPC

Textual Provision of the Law

Section 311 of the Code of Criminal Procedure, 1973, constitutes a fundamental procedural provision that grants courts extraordinary powers during criminal proceedings. The provision reads: “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.”[3]

The language employed in this provision is deliberately expansive. The use of terms such as “any Court,” “at any stage,” “any inquiry, trial or other proceeding,” and “any person” demonstrates the legislature’s intention to confer broad discretionary powers upon the judiciary. This expansive formulation ensures that courts are not handicapped by procedural technicalities when seeking to uncover the truth in criminal matters.

Dual Nature of the Provision

Section 311 CrPC is structured in two distinct parts, each serving a different function. The first part grants discretionary authority to the court, using the permissive term “may.” This allows courts the flexibility to summon witnesses, examine persons present, or recall witnesses for re-examination based on the circumstances of each case. The discretionary nature of this part recognizes that courts are best positioned to assess whether additional evidence is necessary.

The second part of the provision, however, is mandatory in nature, employing the word “shall.” This creates an obligation upon the court to summon or examine any person whose evidence appears essential to the just decision of the case. This mandatory component ensures that courts cannot remain passive when critical evidence is missing, thereby preventing miscarriage of justice due to procedural oversights or errors by either party.

The Recent Supreme Court Ruling: Mayankkumar Natwarlal Kankana Patel Case

Factual Background of the Case

The case arose from tragic circumstances involving the death of a young woman on November 5, 2017, in Gujarat. Her father lodged a First Information Report on December 1, 2017, alleging that his daughter had committed suicide due to persistent harassment and cruelty related to dowry demands by her husband (the appellant) and his family members. The FIR invoked serious provisions including Sections 498A (cruelty by husband or his relatives), 306 (abetment of suicide), 323 (voluntarily causing hurt), 504 (intentional insult), 506(2) (criminal intimidation), and 114 (abettor present when offence is committed) of the Indian Penal Code, along with provisions of the Dowry Prohibition Act.

The deceased had married the appellant in 2010, and the couple had a daughter named Aashvi, who was born in 2013. At the time of her mother’s death, Aashvi was approximately four years and nine months old. The trial proceeded with the examination of prosecution witnesses, and after twenty-one witnesses had already testified, the prosecution filed an application under Section 311 CrPC on September 6, 2023, seeking permission to examine the minor child as a witness. The application claimed that the child was present in the house at the time of the incident.

Trial Court’s Reasoned Rejection

The Sessions Judge, after careful consideration, rejected the application on March 30, 2024. The trial court observed several critical factors that influenced its decision. First, at no earlier stage had the complainant disclosed that the minor child was present at the time of the alleged incident. Second, neither the FIR nor the statements recorded during investigation, including the complainant’s own statement, contained any mention of the child’s presence. Third, despite a delay of nearly one month in lodging the FIR, no such fact was disclosed. Fourth, the child’s tender age at the time of the incident raised serious concerns about the reliability of her testimony after such a prolonged period. The trial court concluded that examining the child at such a belated stage would be unreliable and prejudicial to the accused.

High Court’s Intervention

The Gujarat High Court, by its order dated November 27, 2024, set aside the trial court’s decision. The High Court reasoned that the minor child could be a competent witness under Section 118 of the Indian Evidence Act and directed her examination with appropriate safeguards. The High Court emphasized that competency of a witness and admissibility of evidence are distinct considerations, and procedural protections could address concerns about the child’s welfare while preserving the accused’s right to cross-examination.

Supreme Court’s Reasoning and Decision

The Supreme Court, after thorough examination of the facts and legal principles, found the High Court’s decision to be erroneous. Justice Vikram Nath, authoring the judgment, identified three fundamental grounds for setting aside the High Court’s order. First, there was absolutely no material on record to substantiate the claim that the minor child was present at the time of the incident. The FIR, investigation statements, and the complainant’s testimony were all silent on this crucial aspect. The assumption that the child was an eyewitness was purely speculative, based merely on the assertion that she was somewhere in the house.

Second, the Court noted that the child was only four years and nine months old at the time of the incident in November 2017. By the time the application was filed in September 2023, nearly six years had elapsed. Expecting a child of such tender age to have reliable memory of events after such a prolonged period was unrealistic. The Court observed that the child had been residing with her maternal grandparents since the incident, raising reasonable apprehension of tutoring or memory distortion. The Court stated: “At the time of the incident, the child was only 4 years and 9 months old. Expecting her to have a reliable memory of the events after nearly seven years is unrealistic. Moreover, she has been residing with the maternal grandparents since the incident, raising a reasonable apprehension of tutoring or memory distortion.”

Third, the application was filed at an advanced stage of the trial, after the examination of twenty-one prosecution witnesses. The Court emphasized that the power under Section 311 CrPC, though wide, must be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The bench categorically stated: “Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The present case does not satisfy this requirement. Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused.”[2]

Judicial Interpretation of Section 311 CrPC Through Case Law

Foundational Principles Established by Supreme Court

The judicial interpretation of Section 311 CrPC has evolved through numerous landmark judgments that have established guiding principles for its application. In Zahira Habibullah Sheikh v. State of Gujarat (2006), commonly known as the Best Bakery case, the Supreme Court articulated the fundamental purpose underlying Section 311 CrPC. The Court held: “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.”[4] This judgment emphasized that courts must take a participatory role in trials and are not expected to be mere tape recorders. Section 311 CrPC, along with Section 165 of the Evidence Act, confers vast powers on presiding officers to elicit all necessary materials by playing an active role in the evidence-collecting process.

The Zahira Habibullah Sheikh case arose from the horrific communal violence in Gujarat in 2002, where the Best Bakery in Vadodara was attacked. The prime witness, Zahira, initially testified against the accused but later retracted her statement, leading to acquittals. When she subsequently claimed intimidation and coercion, the Supreme Court took suo motu cognizance and ordered a retrial, demonstrating how Section 311 powers must be exercised to prevent subversion of justice.

Exercise of Discretion with Caution

In Swapan Kumar Chatterjee v. Central Bureau of Investigation (2019), the Supreme Court sounded a note of caution regarding the exercise of power under Section 311 CrPC. The Court observed: “It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case.”[5]

This judgment established that while Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power can be invoked only for the ends of justice. The power must be exercised consistently with the provisions of CrPC and the principles of criminal law, and should not be arbitrary or capricious.

Essential Evidence Test

The test of essentiality has been consistently emphasized by courts in determining whether to invoke Section 311 CrPC. In Manju Devi v. State of Rajasthan (2019), the Supreme Court clarified that a discretionary power like that under Section 311 CrPC is meant to enable the court to keep the record straight and to clear any ambiguity regarding the evidence, while ensuring no prejudice is caused to anyone.[6] The Court emphasized that an application under Section 311 could not be rejected solely on the ground that the case had been pending for an inordinate amount of time. Rather, the focus should be on whether the evidence is essential for a just decision. The Court noted that the length or duration of a case cannot displace the basic requirement of ensuring a just decision after taking all necessary and material evidence on record.

Prevention of Filling Lacunae

Courts have been vigilant in ensuring that Section 311 CrPC is not misused as a tool to fill gaps in prosecution evidence. The power cannot be invoked to cure defects in the prosecution’s case that arose from its own negligence or oversight. In various judgments, the Supreme Court has made it clear that while the provision exists to prevent failure of justice, it should not become a means for the prosecution to bolster a weak case by introducing evidence that should have been produced in the first instance.

Balancing Judicial Discretion and Rights of the Accused

The Right to Fair and Speedy Trial

The exercise of power under Section 311 CrPC must be balanced against the fundamental right of the accused to a fair and speedy trial, as guaranteed under Article 21 of the Constitution of India. When courts invoke this provision at advanced stages of trial, particularly after extensive evidence has been recorded, it can significantly prolong proceedings and cause prejudice to the accused. The accused has a legitimate interest in knowing the case against them and in not being subjected to prolonged uncertainty.

In the Mayankkumar Natwarlal Kankana Patel case, the Supreme Court explicitly recognized this concern. The Court noted that allowing the examination of the child witness at such a belated stage would not only protract the trial but would also cause tangible prejudice to the accused, who had already defended themselves against the evidence of twenty-one prosecution witnesses.

Prejudice to the Accused

The concept of prejudice in the context of Section 311 CrPC extends beyond mere delay. It encompasses the disadvantage that may be caused to the accused when witnesses are recalled or new witnesses are introduced after the case has substantially progressed. The accused may have already cross-examined witnesses, formulated their defense strategy, and presented their case based on the evidence available. Introduction of fresh evidence at a late stage can disrupt this carefully constructed defense and place the accused at a disadvantage.

Courts have therefore held that before invoking Section 311 CrPC, particularly at advanced stages, the presiding judge must carefully weigh whether the proposed evidence is truly indispensable and whether any prejudice to the accused can be adequately addressed through procedural safeguards such as adjournments or opportunities for additional cross-examination.

The Principle of Finality

Criminal trials must have an element of finality to serve the interests of justice effectively. While the search for truth is paramount, it cannot be an endless process. Section 311 CrPC, if used indiscriminately, could result in perpetual reopening of evidence, defeating the very purpose of structured trial procedures. The Supreme Court has therefore emphasized that the power must be exercised only when the evidence is truly essential and indispensable, not merely desirable or potentially useful.

Specific Considerations in Cases Involving Child Witnesses

Competency and Reliability Issues

The examination of child witnesses in criminal proceedings presents unique challenges that courts must carefully navigate. While Section 118 of the Indian Evidence Act provides that all persons are competent to testify unless the court considers them incapable of understanding questions or giving rational answers due to tender age, extreme old age, disease, or other causes, competency alone does not resolve concerns about reliability.

In the Mayankkumar case, the Supreme Court addressed these concerns directly. The Court recognized that while a child may be competent to testify, the reliability of testimony from a child who was less than five years old at the time of witnessing an event, and who is being examined six to seven years later, is highly questionable. Memory fades with time, particularly in young children whose cognitive development is still ongoing. The Court noted that expecting such a child to have reliable memories after such a prolonged period was unrealistic.

Risk of Tutoring and Memory Distortion

A significant concern highlighted by the Supreme Court was the risk of tutoring and memory distortion when child witnesses are examined after substantial delay. The Court observed that the minor child in question had been residing with her maternal grandparents since the incident. Given this living arrangement and the passage of time, there existed a reasonable apprehension that the child’s testimony might be influenced, whether intentionally or unintentionally, by the adults around her.

Children are particularly susceptible to suggestion and may internalize narratives repeatedly told to them, eventually believing these narratives to be their own memories. This phenomenon, well-documented in psychological research, poses serious challenges to the reliability of delayed testimony from young children. Courts must therefore be especially cautious when considering applications to examine child witnesses at belated stages of trial.

Procedural Safeguards for Child Witnesses

While the law recognizes the vulnerability of child witnesses and provides for various procedural safeguards during their examination, these protections cannot overcome fundamental concerns about reliability arising from tender age and prolonged delay. The Protection of Children from Sexual Offences Act, 2012, and various guidelines issued by the Supreme Court mandate special procedures for recording testimony of child victims and witnesses, including examination in camera, presence of support persons, frequent breaks, and simplified questioning.

However, as the Supreme Court indicated in the Mayankkumar case, procedural safeguards alone cannot cure the inherent unreliability of testimony from a very young child examined after a gap of several years. The court must assess whether, despite all safeguards, the testimony would still possess sufficient reliability to be considered indispensable for arriving at the truth.

Practical Guidelines for Invoking Section 311 CrPC

Timing and Stage of Proceedings

One of the critical factors courts consider when deciding whether to invoke Section 311 CrPC is the stage at which the application is made. Applications made early in the proceedings, when only a few witnesses have been examined, are generally viewed more favorably than those made at advanced stages of trial. The Mayankkumar judgment emphasized this principle by noting that the application was filed after twenty-one prosecution witnesses had already been examined, making it a belated request that would unnecessarily prolong the trial.

Burden of Establishing Indispensability

The party seeking to invoke Section 311 CrPC bears the burden of demonstrating that the proposed evidence is indispensable for a just decision in the case. Mere assertion that a person is a material witness is insufficient. The applicant must explain why the evidence could not have been produced earlier, what specific gaps in the existing evidence the new testimony would fill, and why the case cannot be justly decided without this evidence.

In the Mayankkumar case, the Supreme Court found that the prosecution had failed to meet this burden. There was no explanation for why the child’s presence at the scene was not mentioned in the FIR or during the investigation. No cogent reasons were provided for why her examination became essential only after twenty-one witnesses had testified. The Court held that such unexplained delay and absence of justification demonstrated that the evidence was not truly indispensable.

Material on Record

Courts must examine whether there is any material on record to support the claim that the proposed witness possesses relevant knowledge. Speculative assertions are insufficient. In the Mayankkumar case, the prosecution claimed the child was an eyewitness, but there was no documentary or testimonial evidence to establish that she was even present at the scene of the incident. The Court held that treating the child as an eyewitness based on mere assertion, without any corroborative material, was purely speculative.

Alternative Available Evidence

Before invoking Section 311 CrPC, courts should consider whether the same facts can be established through alternative evidence already on record or through less problematic means. If the essential facts are already adequately covered by existing evidence, there may be no need to recall witnesses or summon new ones. The test is not whether additional evidence might strengthen the case, but whether it is indispensable for arriving at a just decision.

Regulatory Framework and Procedural Aspects

Relationship with Other Provisions

Section 311 CrPC does not operate in isolation but must be read harmoniously with other provisions of the Code and the Indian Evidence Act. Section 165 of the Evidence Act empowers judges to ask any questions to witnesses or parties in any form and at any time about any fact relevant or irrelevant. This provision complements Section 311 CrPC and reinforces the court’s duty to discover truth. Similarly, Section 540 of CrPC (now replaced by Section 311) dealt with similar powers, and the jurisprudence developed under the old provision continues to guide interpretation of the current law.

Distinction from Defense Rights

It is important to distinguish the power under Section 311 CrPC from the rights of the accused under Section 233 CrPC (now Section 256 under the Bharatiya Nagarik Suraksha Sanhita, 2023), which deals with the accused’s right to enter upon defense. Section 311 confers power upon the court itself, to be exercised in the interest of justice, whereas Section 233 protects the rights of the accused. The two provisions serve different purposes and must not be conflated.

Suo Motu Powers of the Court

Section 311 CrPC empowers courts to act suo motu, without any application from either party, if the court finds that certain evidence is essential for just decision of the case. This suo motu power reinforces the court’s role as a seeker of truth rather than a passive umpire. However, even when acting suo motu, courts must ensure that their intervention is truly necessary and does not cause prejudice to either party.

Conclusion

The recent Supreme Court judgment in Mayankkumar Natwarlal Kankana Patel v. State of Gujarat serves as a timely reminder that while Section 311 CrPC is a powerful tool for ensuring justice, it must be wielded with caution and restraint. The provision’s purpose is to prevent miscarriage of justice by enabling courts to access essential evidence, not to allow endless reopening of proceedings or to help parties cure deficiencies in their cases.

The judgment establishes several important principles. First, the power under Section 311 CrPC must be exercised sparingly and only when the evidence sought is truly indispensable for arriving at the truth. Second, applications made at advanced stages of trial must face stricter scrutiny, particularly when they involve witnesses whose reliability is questionable due to factors such as tender age and prolonged delay. Third, there must be material on record to support claims about a witness’s knowledge rather than mere speculation. Fourth, unexplained delays in seeking to examine witnesses weigh against granting such applications. Fifth, the court must consider the prejudice that late examination of witnesses may cause to the accused.

These principles apply with particular force in cases involving child witnesses. While children can be competent witnesses, their examination after significant delay raises serious concerns about reliability, susceptibility to influence, and memory distortion. Courts must carefully balance the need for their testimony against these concerns and the rights of the accused.

The legislative intent behind Section 311 CrPC was to serve justice, not to create opportunities for endless litigation. As the Supreme Court observed, allowing examination of witnesses at belated stages without strong justification would only protract trials and cause prejudice to accused persons who have a right to know the case against them and to have their matters decided within a reasonable time. The criminal justice system functions effectively only when there is finality to proceedings within a reasonable timeframe.

Moving forward, trial courts must apply these principles carefully when faced with applications under Section 311 CrPC. The test should always be whether the proposed evidence is indispensable for a just decision, not merely whether it might be useful or might strengthen one party’s case. High Courts, in their supervisory jurisdiction, should be slow to interfere with trial courts’ reasoned decisions on such applications, recognizing that trial judges are best positioned to assess the necessity of additional evidence in the specific context of the case before them.

The judgment reinforces that the search for truth, while paramount in criminal proceedings, must be pursued within the framework of procedural fairness and respect for the rights of all parties. Section 311 CrPC remains a vital instrument for courts to fulfill their duty of discovering truth, but its exercise must always be guided by judicial wisdom, restraint, and consideration of all relevant circumstances. Only through such balanced application can the provision serve its intended purpose of ensuring that justice is not just done, but is manifestly seen to be done.

References

[1] Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr., Criminal Appeal(s) arising out of SLP (Crl.) Nos. 1167–1168/2025, Supreme Court of India (December 19, 2025). Available at: https://www.livelaw.in/supreme-court/s-311-crpc-power-to-be-invoked-sparingly-only-when-evidence-is-indispensable-to-find-truth-supreme-court-514086

[2] Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr., 2025 INSC 1475, Supreme Court of India. Available at: https://www.caseciter.com/mayankkumar-natwarlal-kankana-patel-vs-state-of-gujarat-2025-insc-1475-s-311-crpc-minor-witness-recall/

[3] Code of Criminal Procedure, 1973, Section 311. Available at: https://www.latestlaws.com/bare-acts/central-acts-rules/crpc-section-311-power-to-summon-material-witness-or-examine-person-present

[4] Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2006) 3 SCC 374, Supreme Court of India. Available at: https://indiankanoon.org/doc/1067991/

[5] Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328, Supreme Court of India. Available at: https://www.livelaw.in/know-the-law/scope-of-section-311-crpc-supreme-court-recalling-of-witnesses-170824

[6] Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, Supreme Court of India. Available at: https://www.livelaw.in/know-the-law/scope-of-section-311-crpc-supreme-court-recalling-of-witnesses-170824

[7] V.N. Patil v. K. Niranjan Kumar, Criminal Appeal No. 267 of 2021, Supreme Court of India (March 4, 2021). Available at: https://www.livelaw.in/know-the-law/scope-of-section-311-crpc-supreme-court-recalling-of-witnesses-170824

[8] Mohanlal Shamji Soni v. Union of India, (1991) 1 SCC 271, Supreme Court of India. Available at: https://blog.ipleaders.in/section-311-crpc/