Section 311 CrPC and Section 348 BNSS: Power to Summon or Recall Witnesses
Section 311 of the Code of Criminal Procedure, 1973 empowered criminal courts to summon material witnesses, examine persons present and recall witnesses already examined. The corresponding current provision is Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Meaning and purpose
The provision allows a court to obtain evidence needed to reach a fair and informed decision. It is concerned with the court's search for material evidence, not merely with the witness lists filed by the prosecution or defence.
Section 311 CrPC - statutory text
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.
Section 348 BNSS - corresponding current provision
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.
Both provisions contain a discretionary part and a mandatory part. The wording is substantively the same, with references updated to the new legislation.
What powers does the court have?
1. Summoning a material witness
The court may summon a person whose testimony could assist in resolving issues in the case, even where that person was not originally listed as a witness.
2. Examining a person already in attendance
A court may examine a person who is present before it although no formal witness summons was issued to that person.
3. Recalling and re-examining a witness
A witness previously examined may be recalled for further examination where clarification or additional relevant evidence is needed. The court must safeguard procedural fairness and provide an appropriate opportunity to challenge the evidence.
When is the power mandatory?
The first part uses the word may, allowing judicial discretion. The second part uses shall: where the court considers the person's evidence essential to the just decision of the case, it must summon and examine, or recall and re-examine, that person.
At what stage can a witness be summoned or recalled?
The statutory power extends to any stage of an inquiry, trial or other proceeding under the applicable code. However, the court should consider the relevance of the proposed testimony, the reasons for seeking it, possible prejudice, and whether a fair opportunity to respond can be maintained. It is not an unrestricted right to reopen evidence merely to delay proceedings.
Section 311 CrPC and Section 348 BNSS
| Issue | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Provision | Section 311 | Section 348 |
| Subject | Power to summon material witness or examine person present | Same subject |
| Available powers | Summon, examine, recall and re-examine | Summon, examine, recall and re-examine |
| Essential evidence | Mandatory examination or recall | Mandatory examination or recall |
| Applicability | Historical code and matters preserved by savings | New procedural regime from 1 July 2024 |
Practical example
During a criminal trial, the evidence may reveal that a person not included in the original witness list directly observed an important event. The court may summon that person. If the testimony appears essential to deciding the case justly, the mandatory part of Section 348 BNSS (or Section 311 CrPC where applicable) comes into operation.
Related provisions and transition
Section 311A CrPC concerns specimen signatures or handwriting and corresponds to Section 349 BNSS; it is a different power. The transition between the old and new procedural codes is governed by Section 531 BNSS, including savings for specified pending proceedings.
Frequently asked questions
What is the equivalent of Section 311 CrPC under BNSS?
Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 311 of the Code of Criminal Procedure, 1973.
Can a court recall a witness already examined?
Yes. The court may recall and re-examine a witness already examined. If that evidence appears essential to a just decision, the provision requires the court to act.
Can the court call a person who was not named as a witness?
Yes. It may summon a person as a witness or examine a person already in attendance even if that person was not summoned as a witness.
Can the power be exercised at any stage?
The provision extends to any stage of an inquiry, trial or other proceeding under the applicable criminal procedure law. The exercise of discretion must serve a fair and just decision.
Does CrPC Section 311 still matter after 1 July 2024?
Yes. The BNSS repeal-and-savings provisions can preserve the CrPC procedure for certain pending matters. The applicable law depends on the proceeding and transitional rules.
Official legislation and further reading
- India Code - Government of India legislation database (search for BNSS Section 348 and CrPC Section 311).
- Bureau of Police Research and Development - BNSS text and section correspondence (PDF).
- Ministry of Home Affairs - official criminal law resources.
This article is for general legal information. Consult the official statutory text, relevant amendments and judicial decisions for the facts of a particular proceeding.