Section 311 CrPC permits summoning material witness to test alibi when truth demands it, even late in trial

Section 311 CrPC gives the court wide power, and a duty, to summon or recall evidence that is essential to a just decision. Applied to a plea of alibi, the Collector was treated as a material witness on the respondent's presence at the relevant time, so examining him was directed toward discovering the truth rather than filling a lacuna in the prosecution case. The fact that the application was made late in trial did not, by itself, make it impermissible. The High Court was therefore held to have erred in setting aside the Sessions Judge's order, and the application to summon the witness was restored.

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Issues: Whether the prosecution could invoke the court's power to summon the then Collector as a witness under Section 311 of the Code of Criminal Procedure, 1973 to test the respondent's plea of alibi, and whether such summoning would amount to filling a lacuna in the prosecution case.

Analysis: Section 311 of the Code of Criminal Procedure, 1973 confers a wide power on the court and, where the evidence of a person appears essential to the just decision of the case, imposes a duty to summon or recall that evidence. The controlling consideration is the discovery of truth and a just decision, not the stage of trial alone. The respondent had himself raised the plea of alibi at an early stage and had led defence evidence on that issue. In such a situation, the Collector was the most material witness on the question whether the respondent was present in his chamber at the relevant time. An application to examine such a witness, moved to enable the court to reach the truth on a contested issue, cannot be characterised as an impermissible attempt to fill a lacuna merely because it is made late in the trial.

Conclusion: The High Court erred in setting aside the Sessions Judge's order. The application to summon the Collector was maintainable and its allowance was justified; the order restoring that application stands sustained.

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