Examining the witness u/s 311 CrPC during Investigation
Legal Fighter
(Querist) 10 August 2009
This query is : Resolved
Does anybody has any judgment regarding examination of material witness (defence) u/s 311 CrPC during investigation itself.
Investigation Officer is acting in malafide manner and has neither filed any chargesheet since past 2.5 years nor is recording the statement of the material witness either. Material witness is 85 years old and he may not be available during defence witness stage.
Kindly suggest what is the other remedy for getting the statement of material witness recorded at this stage.
Adinath@Avinash Patil
(Expert) 10 August 2009
section 311 of cr.p.c.empower the court to summon material witnesses though not summoned as witness and to examine or recall and re-examine if their evidence appears to it be essential for the just decision of the case. case law shailenra kumar v/s state of bihar 2002 AIR[sc]page 270.
K.C.Suresh
(Expert) 11 August 2009
Dear Manish
You may kindly go through the section. When there is no provision in the Cr.{P.C for examimning a defense witness during investigation case law may not help you. You may bring this to the notice of the concered majistrate where the FIR is filed by an affidavit of the witness if you hace any locus standi in the case. If no locus then file an affidavit through a pleader.
Kiran Kumar
(Expert) 11 August 2009
well Suresh Ji is quite right.
S.311 is not applicable at the investigation stage.
better u move to HC for change of IO....though the legal interpretaion says the courts can not interfere into the investigation process but the present case warrant interfernce to the extent of change of IO.
if u ve something against the IO then presnt it before the court.
Petition under S.482 Cr.P.C or the Civil Writ Petition under Art.226 of Constitution of India are maintainable, u can avail any remedy.
Nishith P Thakkar
(Expert) 12 August 2009
dear friend
kindly read section 163(2)of cr.p.c
and only after that read this message
now all you have to do is to send affidavit affirmed by u'r witness,
to the investigation officer through rp.a.d post, show u'r willingness that u want to register u'r statement as witness.if he denies to take the statement of u'r witness, report it to d.s.p. of concern area.
another remedy u can file mandamus writ ptition under article 226 of the constitution of india for directing police to act as per section 163(2) cr,p.c.
.
another point is if after r.p.ad. as mentioned above he do not accept u'r stetment as a witness ,u can be benifited in trial as a defense point of bias investigation by police.
another point is under section 309 speedy trial is u'r right and there are judgments that due to delayed investigation the entire case is drooped, accused is declared discharged, at the request of accused , in the writ petition before high court. in such kind of petition u should take ground as delayed investigation is harrashment, speedy trial is u'r right under section 309 cr.p.c and grounds under article 14,19,21 of the constitution of india.
Nishith p thakkar 09978112791
Legal Fighter
(Querist) 12 August 2009
I am really very thankful to you all for giving your expert advice. This forum is really useful as we get to know ideas from multiple brains along with legal knowledge.
