Section 350 in The Code Of Criminal Procedure, 1973
350. Summary procedure for punishment for non- attendance by a witness in obedience to summons.
(1) If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such a witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding one hundred rupees.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
- Issuing NBW against a complainant witness or any other witness is not justified .
- On the date if lawyer appears and produce a cause for non attendance of a particular witness and prayed for adjournment , the court generally accept it . But issuing NBW is bad in Law.
Calling material witness
Section 311 of the Cr.P.C. which reads as follows:-
“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.”
Section 311 of the Cr.P.C. has two parts. The first part grants discretion to the criminal court to enable it at any stage on enquiry, trial or other proceeding under the Code to act on three ways namely, (i) to summon any person as a witness, or (ii) to examine any person in attendance, though not summoned as a witness, or (iii) to recall and re-examine any person already examined.
The second part of section which is mandatory in nature imposes an obligation to the court to summon or examine or recall and re-examine any such person if it appears to be essential for the just decision of the case.
In the case of Zahira Habibullah Sheikh (5) & Anr. Vs. State of Gujarat & Ors. reported in (2006) 3 SCC 374, the Hon’ble Supreme Court has considered the object and scope of exercising the power under Section 311 of the Cr.P.C. The Court has said that the object Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 10 underlying Section 311 Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The provision of Section 311 of the Cr.P.C. is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the trial court to issue summon to any witness at any stage of such proceedings, trial or enquiry. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. It will be relevant to quote paragraph nos. 27, 28 and 30 of the aforesaid judgment which reads as follows:-
“27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 11 case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
28. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court.
Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ‘Evidence Act’) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 12 adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.” The principle of Section 311 came for consideration in the case of State of Haryana Vs. Ram Mehar & Ors. reported in (2016) 8 SCC 762 has exposited the framework of Section 311. While examining the formulation, contour and terms of the said section, a markable ethos has been provided as a guideline of the basic thought of the criminal trial. The Court has said in the following manner:-
“Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.”
Now in the above circumstance bailable as also non-bailable warrants of arrest may be issued against the witnesses. The warrants of arrest may be issued through the Superintendent of Police, but in spite of these attempts by the Court if not a single witness turned up for examination . “When in spite of non-bailable warrants of arrest not, a single witness could be produced before the learned trial Court it was left with no alternative but to close the case of the prosecution and it proceeded to record the statements of the accused persons under Section 313 of the Code”.
SUPREME COURT OF INDIA in State of U.P. vs. Shambhu Nath Singh & Ors.[ AIR 2001 SC 1403 ]
Held :
“309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.”
In Rajdeo Sharma (II) vs. State of Bihar {1999 (7) SCC 504} this Court pointed out that the trial court cannot be permitted to flout the mandate of Parliament unless the court has very cogent and strong reasons and no court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. A request has been made by this Court to all the High Courts to remind all the trial judges of the need to comply with Section 309 of the Code. The request is in the following terms:
“We request every High Court to remind the trial judges through a circular, of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits.”
- We believe, hopefully, that the High Courts would have issued the circular desired by the apex court as per the said judgement. If the insistence made by the Parliament through Section 309 of the Code can be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non-examination for days.
