What is Section 311 of CrPC? Can the Court permit the examination of an Additional Witness as Prosecution Witness?

Introduction

In a significant decision taken by the Supreme Court in KP Tamilmaran v. State, the Supreme Court pointed out that an additional witness summoned under Section 311 of the CrPC can be examined as Prosecution Witness if the Court is of the opinion that their testimony is crucial for uncovering the truth

Facts of the case

In KP Tamilmaran vs State, the Supreme Court addressed one of the earliest honour killings in Tamil Nadu- the tragic killing of Murugesan, a Dalit man. Murugesan and Kannagi, who belonged to the Vanniyar community, secretly married on May 5, 2003. Kannagi’s family, especially her father, C. Duraisamy and brother Maruthupandian, who were against this, forced them to consume poison and subsequently burnt their bodies. In 2021, Maruthupandian was sentenced to death by the trial court and awarded life sentences to 12 others, including Duraisamy. However, in 2022, the Madras High Court reduced Maruthupandian’s death sentence to life imprisonment and upheld the life sentences of nine others, acquitting two.

The Supreme Court in April 2025, upheld these convictions and highlighted the prejudices that led to this crime. The Court also addressed procedural aspects like summoning Murugesan’s stepmother, PW-49 as a prosecution witness under Section 311 of CrPC, despite her initial omission from the chargesheet. 

Court’s opinion on examination of Additional Witness

In this case, PW-49, an eyewitness, was not originally named in the chargesheet filed by the CBI. However, during the investigation, she had given her statements to the police under Section 161 of the CrPC, and her testimony in court later closely matched that earlier statement. While there were a few inconsistencies in her deposition, they weren't significant enough to benefit the defence.

The prosecution was initially hesitant to call her as a witness, as they were unsure how well she would hold up under cross-examination, especially since she was uneducated and not very articulate. Eventually, during the trial, the prosecution applied Section 311 of the CrPC to summon her as an additional witness. The court accepted this request, and PW-49 was formally examined as a prosecution witness. The Sessions Court’s order was challenged in the High Court by PW-1, who argued that PW-49, Chinnapillai, should be called as a Court witness instead of a prosecution witness. PW-1, who is also PW-49’s husband, was concerned that if she testified as a prosecution witness and ended up turning hostile, it could ultimately help the accused.

However, the High Court dismissed his petition and upheld the Trial Court’s decision to summon Chinnapillai as a prosecution witness. The Court reasoned that such concerns were unfounded, as the Trial Court had the authority under Section 165 of the Evidence Act to handle any issues that might arise if she were to turn hostile.

What does Section 311 of CRPC under which PW-49 was called as a witness, say?

Section 311 of CRPC says: “Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon 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”

Under the discretion of section 311, the court can do the following:

1. Summon any person as a witness, or
2. Examine any person present in court, though not summoned as a witness, or
3. Recall and re-examine any person already examined

The court can exercise these powers at any stage of any inquiry, trial or other proceeding under the CRPC. If we look at the section, we can divide it into two parts. The first part contains ‘may’ and this grants the Court the discretion to summon a witness. On the other hand, the second part uses ‘shall’, which implies that the Court must summon and examine or recall or re-examine any such person as a witness when it appears to the Court that it is important for a fair decision in the case. This makes it mandatory, and courts need to fulfil their obligations to exercise this power under Section 311 when the evidence of any person is essential for a fair decision. These powers can be exercised suo moto or on an application made by either side. Thus, the courts have been given wide powers to decide at their discretion if a witness needs to be called or recalled for examination or re-examination and at any stage of the trial, Section 311 can be invoked. Section 311 of CrPC can also be read along with Section 165 of the Evidence Act, as the powers of the Court under Section 165 of the Evidence Act (A Judge's power to put questions or order production) are complementary to Section 311 of CrPC. Section 311 of the CrPC can either be exercised on an application by either side to the case or suo moto by the Court. If a person is not listed as a witness in the charge-sheet, but the prosecution decides to bring them forward as an additional prosecution witness, then they can move an application to bring them forward. Then, the court determines whether such a person is required as a witness or not. After which, the normal procedure of examination takes place.  

In the present case, the bench clarified the difference between calling someone as an additional witness and as a court witness. It explained that there’s more flexibility when a person is brought in as an additional witness. But if the person is called as a Court witness, the parties don’t have full freedom to cross-examine them directly- there are some restrictions regarding the cross-examination of the witness.