procedural law

Sorryy read it as 391 intead of 393

Sec - 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.

Sec - 391. Appellate Court may take further evidence or direct it to be taken:

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

It is observed by Panjab and Haryana H.C in one of the case as follows:

 " The rights of the parties to lead additional evidence and  the duty and responsibility of the Court in this regard at the trial and  appellate stage in a criminal case is regulated by the provisions of  Sections 311 Cr.P.C and 391 Cr.P.C respectively.

It was noticed that essentially there is a difference in the wording of Sections 311 Cr.P.C and 391 of the Code. Both the Sections relate to power of the Court for taking additional evidence, one at the stage of trial and the second at appellate stage. It was observed that to say that same consideration would arise in both the situations would not be appropriate. There is essentially a difference in both the stages. 

Section 311 Cr.P.C.is available before the court at the stage when  both the parties are in the process of leading evidence and the Court  is yet to come to any final conclusion in regard to guilt or otherwise of  the person being prosecuted before it. Section 311 Cr.P.C. has been a subject matter of interpretation in large number of cases and has been construed to be very wide in its scope. One part of the Section has also been held to be mandatory and it leaves a mandate for the Court to summon and examine, recall and reexamine any person, if evidence appears to be essential for the just decision of the case.  This wide discretion apparently may not be available before the Appellate Court while exercising powers under Section 391 Cr.P.C.  The Section is worded differently. It reads that in dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, it shall record its reason and may either take the evidence itself or direct it to be taken by the Magistrate etc.  The words `essential to the just decision of the case' are obviously missing in Section 391 Cr.P.C.

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as per my views... there is no question of overiding..... section 391 comments on the power of appeallate court to take additional evidence where as section 311 crpc speaks any stage of any inquiry, trial or other proceeding under this Code court can take additional evidence, 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.

I do agree with Mr.Ajitabh

Respected friends the question is posed purely on the basis of the Punjab and haryana High Cour as quoted supra.  Hence the question is does section 391 is also controlled by section 311 of cr.p.c.  I may be permitted to state as follows:-

t was noticed that essentially there is a difference in the wording of Sections 311 Cr.P.C and 391 of the Code. Both the Sections relate to power of the Court for taking additional evidence, one at the stage of trial and the second at appellate stage. It was observed that to say that same consideration would arise in both the situations would not be appropriate. There is essentially a difference in both the stages. was the observation of the High Court but the court has become oblivious of the wordings of the code that clearly states as,"(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

Thua when the procedding under section 391 is to be considered as proceedings under chapter XXIII and chapter 23 is controlled by chapter 24 which consists of section 311 that state as, "at any stage of inquiry" followed by for the just decision of the case.

Thus the observation of P&H High court is clearly wrong in the way the judgement is delivered.

Ramakrishnan.V.

Sir,

It should also be known that the apex court has stated that the provision of Order 41 rule 27 is akin to the section 391 of Cr.P.C.  Kindly refer to the judgement namely, Rambhau Vs State of Maharashtrar citation AIR 2001 SC 2120

pls tell me what is  corresponding section of 391 of crpc