I want a judgement on section 311 CRPC that it should be decided with the main appeal

Section. 311 of the Criminal Procedure Code

Introduction:

The section contains directions to the Courts to conduct criminal proceedings expeditiously on day to day basis until all the witnesses in attendance have been examined. It authorises the Magistrate to remand the accused to judicial custody if necessary after taking cognizance of the offence or commencement of the trial. This section also regulates the powers of the criminal Courts to postpone or adjourn the proceedings and emphasises that stay of proceedings for indefinite period should be avoided so as to eliminate the chances of loss of evidence by passage of time and unnecessary harassment to the accused.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.”

Sec.309 Cr.P.C: Power to postpone or adjourn proceedings

1. In every inquiry or trial the proceedings 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;

Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet. (Criminal Law (Amendment) Act, 2013.

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.

Provided also that –

1. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

2. the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

3. where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

Explanations

1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

2. The terms on which an adjournment or postponement may be granted in include, in appropriate cases, the payment of costs by the prosecution or the accused.

Case Law:

(1) In Lt. Col., S.J. Chaudhary Vs State (Delhi Administration) 1984 AIR 618, 1984 SCR 438 the Honourable Supreme Court Held as under:

“ By an order dated December 2, 1983, this court while dismissing a petition for special leave to appeal filed against an order of the Delhi High Court refusing to grant bail to the petitioner until after examination of Rani Chaudhary as a witness, gave a direction that on the commencement of the trial, it should proceed from day-to-day. Alleging that his two Advocates are not prepared to appear in the case from dayto-day as the trial is likely to be prolonged, the petitioner has filed, the present application for modification of the earlier order of this court by the deletion of the direction that the trial should proceed from day-today.

We think it is an entirely wholesome practice for the trial to go on from day-to-day. It is must expedient that the trial before the court of a Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. It is necessary to realise that Sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available, If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded.

We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day- today. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. The Criminal Miscellaneous Petition is, therefore, dismissed.

(2) In Ajay Singh and Anr and Etc Vs State Of Chhattisgarh and Anr on 6 January, 2017 Criminal Appeal Nos. 32-33 OF 2017 (@ S.L.P. (Crl.) Nos. 7694- 7695 of 2016) the Honourable Supreme Court held as under:

Para No.26: The case at hand constrains us to say that a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section.309 of the Cr.P.C and pronounce the judgment as provided under the Code. A Judge in charge of the trial has to be extremely diligent so that no dent is created in the trial and in its eventual conclusion. Mistakes made or errors committed are to be rectified by the appellate court in exercise of error jurisdiction. That is a different matter. But, when a situation like the present one crops up, it causes agony, an unbearable one, to the cause of justice and hits like a lightning in a cloudless sky. It hurts the justice dispensation system and no one, and we mean no one, has any right to do so. The High Court by rectifying the grave error has acted in furtherance of the cause of justice. The accused persons might have felt delighted in acquittal and affected by the order of rehearing, but they should bear in mind that they are not the lone receivers of justice. There are victims of the crime. Law serves both and justice looks at them equally. It does not tolerate that the grievance of the victim should be comatosed in this manner.

(3) In Doongar Singh Vs The State Of Rajasthan on 28 November, 2017 Criminal Appeal Nos. 2045-2046 OF 2017 (Arising out of Special Leave Petition (Crl.)Nos.8994-8995 of 2015) the Honourable Supreme Court held as under:

Para No.5: In a criminal case of this nature, the trial court has to be mindful that for the protection of witness and also in the interest of justice the mandate of Section.309 of the Cr.P.C. has to be complied with and evidence should be recorded on continuous basis. If this is not done, there is every chance of witnesses succumbing to the pressure or threat of the accused.

Para No.13. To conclude:

(i) The trial courts must carry out the mandate of Section.309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U.P. versus Shambhu Nath Singh and Others, Mohd. Khalid versus State of W.B. and Vinod Kumar versus State of Punjab.

(ii) The eye-witnesses must be examined by the prosecution as soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded under Section. 164 of the Cr.P.C. as per procedure prescribed thereunder.

(4) In Pradeep Ram Vs The State Of Jharkhand on 1 July, 2019 in Criminal Appeal Nos. 816-817 OF 2019 (arising out of SLP(CRL.) Nos.10051-10052 of 2018) the Honourable Supreme Court held as under :

Para No.62: After having noticed, the relevant provisions of Section.167(2) and Section.309, Cr.P.C and law laid down by this Court, we arrive at following conclusions: -

(i) The accused can be remanded under Section.167(2) Cr.P.C during investigation till cognizance has not been taken by the Court.

(ii) That even after taking cognizance when an accused is subsequently arrested during further investigation, the accused can be remanded under Section.167(2) Cr.P.C.

(iii) When cognizance has been taken and the accused was in custody at the time of taking cognizance or when inquiry or trial was being held in respect of him, he can be remanded to judicial custody only under Section.309(2) Cr.P.C.