311. POWER TO SUMMON MATERIAL WITNESS OR EXAMINE PERSON PRESENT.- Any Court may, at any stage of any inquiry, trial or other proceedings 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.
In Jamatraj Kewalji Govani Vs. The State of Maharashtra, , the Supreme Court have clearly pointed out as under :-
…The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word ‘may’ in the first part and of the word ‘shall’ in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in one of three ways: (a) summon any person as a witness; (b) examine any person present in Court although not summoned and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decisions of the case demands it….
This has been reiterated in Mohanlal Shamji Soni Vs. Union of India and another, .
So far as the first part of this section is concerned, the Court has discretion to examine a witness as Court witness. It is settled that the discretionary power should be exercised judicious with circumspection and it should be exercised as a reasonable and prudent person. The powers given to the Court u/s 311, Cr. P. C. being discretionary, the Court cannot be forced to exercise them at the bidding of any of the parties. As far as summoning of Court witness is concerned, it is entirely a matter for the Court to decide and it is not for the accused to insist upon. It is even open to the accused to summon the witness in his defence, if so advised. The object of the first part of the section (is) fair trial.
So far as the second part of the section is concerned, it does not allow any such discretion but it binds and compels the Court to take any of the aforementioned two steps, if the fresh evidence to be adduced is essential to the just decision of the case. In other words, it becomes the duty of the Judicial Magistrate to examine witness for a just decision in the case. The object of this part of the section is to arrive at a just decision.
In Mohanlal Shamji Soni Vs. Union of India and another, , the Apex Court have held as under :-
It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. None the less if either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the Presiding Officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost, or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principles that a Court must discharge its statutory functions- whether discretionary or’obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can 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 who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
In Jamatraj Kewalji Govani Vs. The State of Maharashtra, the Apex Court has observed in paragraph No. 14 as under :-
It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined and makes this the duty and obligation of the Court provided the just decision of the case demands it.