Recall of Witness u/s 311 CrPC & 165 IEA

Judge can examine anyone u/s 311 CrPC

The Judge has unfettered authority to summon any material witness, or examine any person attending the court, though he is not summoned as a witness, or recall or re-examine any person already examined, if his evidence appears to be essential to the just decision of the case, under Section 311 of the Criminal Procedure Code (CrPC).

The Section 311 CrPC gives extraordinary power to the court to go a bit forward in arriving at the truth rather than just relying exclusively on the police report and the prosecution evidence, which may not be wholesome in arriving at the truth in many cases.

This Section helps the court  in finding out the truth when the investigation and the prosecution make lapses in their duties, probably due to undue influence or high handedness of the parties involved.

What the Section 311 CrPC says

The Section 311 CrPC has two aspects: –

  1. It gives enough discretion to the court or judge to examine the witness at any stage, and
  2. It compels the court to examine the witness if his evidence appears to be essential to the just decision of the court.

The powers under Section 311 CrPC are discretionary and should be exercised with great care and caution. The court should take any step under the Section only if the new evidence appears to be essential to the just decision of the case.

The object of the Section is to arrive at the truth when the prosecution or the defence has failed to produce some evidence which is necessary for a just decision of the case. However, the Section 311 CrPC cannot be used to compensate for the lapse of the prosecution during the proceedings.

Under Section 311 CrPC two courses are possible: if valid reasons are made out the court many allow any of the parties to call new evidence at any stage, or else the court may suo moto call any witness if it is essential in the interest of justice.

The court can examine witnesses of its own, when neither party is prepared to call witnesses, who are ready to depose crucial or important facts.

However, the court is not expected to fill up the lacunae of the prosecution case, which has been brought out by cross examination of the prosecution witnesses on behalf of the accused persons, by permitting the prosecution to recall their witnesses for re-examination.

In short, summoning material witnesses for a just decision of the case by exercising extraordinary powers under Section 311 CrPC is legal and proper.

Judge’s power to put questions under evidence law

Similarly, the Judge has enough power to put any relevant or irrelevant question, as he pleases, to a witness for the purpose of eliciting information or material that the court considers necessary but has not come on record in the course of evidence, under Section 165 of the Indian Evidence Act (IEA). However, the judgement must include only admissible and relevant facts, even if the judge has authority to ask irrelevant questions.

The judge cannot ask any person to answer any question or produce anything which he is not entitled to answer or produce as they are legally prohibited under Sections 121 to 131 of the IEA.  The Sections deal with about the privileged communications such as letters between married persons, communication between the advocate and the client etc, which are prevented by law from production before a court of law. The judge has to exercise his authority before the evidence is concluded.

The Section is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth.

Court can have court witnesses

It is well settled in law that if the conditions under the above section are satisfied the court can call a witness not only on the motion of either the prosecution or the defence but also on its own motion whenever it is essential [The State Represented By The … v Tr. N. Seenivasagan].

The court witnesses can be cross examined by both parties only with the permission of the court.

The power of the court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence in both sides are closed so long as the court retains seisin of the criminal proceedings.

During examination of the court, the witness has the privilege to refuse to answer under Section 148 & 149 IEA, if the court decides that the witness need not answer the question while considering its relevancy.

The judge cannot ask questions which may confuse, coerce, or intimidate the witness.


In many cases, the judge has to undergo the ordeal of conducting the whole trial himself and has to represent the interest of the public in order to get at the truth.

The judge should not only hear what is put before him but also ascertain the facts by his own inquiries to arrive at a just decision of the case. The power of the court is to discover proper proof of relevant facts and nothing more.

The power the judge to ask irrelevant questions under the Section 165 IEA is to get relevant facts alone and that too in arriving at the truth of the case.

Further reading

  1. N. Patil v K. Niranjan Kumar
  2. The State Represented By The … v Tr. N. Seenivasagan [AIR 2021 SC 2441]
  3. Satvir Singh v State of Haryana & Others [2023INSC786]