Free Judiciary Notes · BNSS Notes
S.348 BNSS / S.311 Cr.P.C. POWER TO SUMMON MATERIAL WITNESS, OR EXAMINE PERSON PRESENT
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S.348 BNSS / S.311 Cr.P.C. Power to summon material witness, or examine person present
Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
Q. Power under Section 348 of BNSS can be exercised by the Court:
a. to recall any witnesses already examined
b. to summon any witness who has been cited as a witness but not produced or examined before the evidence is closed
c. to summon any witness who has not been cited as a witness
d. all the above
Ans.(d)
Q. Under Section 348 of BNSS a witness can be called:
a. on the motion of the prosecution
b. on the motion of the defence
c. on its own motion by the court
d. All these
Ans. (d)
Q. Under Section 348 of BNSS a witness can be called:
a. on the motion of the prosecution
b. on the motion of the defence
c. on its own motion by the court
d. All these
Ans. (d)
Q. Power to recall any witness(es) under Section 348 of BNSS, can be exercised:
a. Even after the evidence of both the sides is closed
b. After the evidence of the prosecution is closed, but before the evidence of defence is closed
c. Before the evidence of the prosecution is closed, if the witness is to be called on the motion of the prosecution
d. After the evidence of the prosecution is closed if the witness is called on the motion of the defence
Ans. (a)
NOTES
In a criminal case, the fate of the proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not so far as reasonably possible, left unanswered. The provisions of Section 348 BNSS / 311 CRPC are intended to serve this purpose.
ZAHIRA HABIBULLAH H. SHEIKH V. STATE OF GUJARAT
Above case is commonly known as "Best Bakery case". It was held in this case that fair trial warrants that a presiding judge must not be a spectator and a mere recording machine. But he should play active role in evidence collecting process and elicit all relevant materials necessary for reaching the correct conclusion, to find the truth.
The section is in two parts. The first part uses the word ‘may’ whereas the second part uses the ‘shall’. Under the first part, which is permissive, the court may act in one of three ways:
a. summon any person as a witness,
b. examine any person present in court although not summoned, and
c. recall or re-examine a witness already examined.
The second part is obligatory and compels the court to act in these three ways or any of them, if the just decision of the case demands it.
AT ANY STAGE
MOHANLAL SHATNJI SONI V. UNION OF INDIA, 1991 SCC (Cri) 595:
The court can exercise the power under this section at any stage. There is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken.
JAMATRAJ KEWALJI GOVANI V. STATE OF MAHARASHTRA, 1968 CRI LJ Z31, 234: AIR 1968 SC 178;
The requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.
MUKTI KUMAR V. STATE OF W.B., 1975 CRI LJ 838, 849 (CAL)
The ground on which the court may act under the second part of the section is one “essential to the just decision of the case”. But those under the first part are not limited to that only. The only thing is that the court has to form a bona fide opinion as to the necessity of an order under Section 311. What is sufficient for that necessity cannot be enumerated exhaustively or with any precision. That will depend upon the facts and circumstances of each case.
KAMAL OIL & ALLIED INDUSTRIES (P) LTD. V. DELHI ADMN., 1982 CRI LJ 2046, 2055 (DEL).
The paramount consideration is doing justice to the case and not filling up the gaps in the prosecution or defence evidence.
JARNAIL SINGH V. STATE OF PUNJAB, 1990 CRI LJ 2310 (P&H)
The section is wide enough to apply to all courts—original, appellate or revisional.
WITNESS CALLED BY THE COURT
RANGASWAMI V. MURUGA, 1954 CRI LJ 123: AIR 1954 MAD 169;
A witness called by the court under Section 311 CRPC (348 BNSS) can be cross-examined by both the prosecution and the defence.
MUKTI KUMAR V. STATE OF W.B., 1975 Cri LJ 838, 840 (Cal).
When a court examines a witness it is for the court to say after such questioning as to which of the parties will be permitted to ask questions first and to what extent.
When a witness examined by the court is questioned by the parties, it cannot strictly be said that he is cross-examined. For cross-examination is examination of a witness by the adverse party. When a court calls a witness he does not become a witness called by any party to the litigation.
S.349 BNSS / S.311A Cr.P.C. Power of Magistrate to order person to give specimen signatures or handwriting, etc.
If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or finger impressions or handwriting or voice sample:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding:
Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested.
Q. Section 349 of Bhartiya Nagarik Suraksha Sanhita, 2023 empowers the Magistrate of First Class to:
a. Summon material witness
b. Postpone or adjourn proceedings
c. Order person to give specimen signatures
d. Visit and inspect any place in which an offence is alleged to have been committed
Ans.(c)