Supreme Court Holds No Costs Can Be Imposed for Evidence Under Section 311 CrPC

New Delhi, October 27: The Supreme Court said trial courts cannot impose costs as a condition for summoning witnesses or taking additional evidence under Section 311 of the Code of Criminal Procedure, now Section 348 of the Bharatiya Nagarik Suraksha Sanhita. Where the evidence is necessary for a just decision in a criminal case, the Court said, a direction to pay money for bringing it on record is impermissible. The ruling will govern recall pleas and production of further proof in trials across the country.

Trial judges deal with such requests almost daily. They are asked to call a person not yet examined, to recall a witness who has deposed, or to take a document or object on record after the prosecution or defence has closed evidence. Section 311 gives the court wide power to do so at any stage of inquiry, trial or other proceeding before judgment. The question was whether, while allowing such a request, the court could also order the applicant to pay costs to the other side or to the witness.

The Court answered no. Costs cannot be imposed once the court finds it necessary to summon a witness or receive additional evidence for a just decision. The bar, the Court said, flows from the language and purpose of the provision. If necessity is made out, the court is not granting a favour. It is discharging a duty to the trial.

Under the provision, any court may at any stage summon any person as a witness, examine any person present though not summoned, and recall and re-examine any person already examined. It must summon and examine, or recall and re-examine, any person whose evidence appears essential for a just decision. The provision covers inquiries, trials and other proceedings under the Code. Section 348 of the Bharatiya Nagarik Suraksha Sanhita continues the same scheme for new cases.

What Section 311 Lets Courts Do

In practice, applications come from all sides. The prosecution may seek to examine a witness left out of the chargesheet or to prove a document received late. The defence may seek recall of a prosecution witness for further cross-examination on later material. The court itself may act without an application to clear an ambiguity. In each case the test is the same: whether the evidence is required for a just decision, not whether the applicant has shown sufficient cause as in a civil application.

Over the years, trial courts followed different practices on costs. Some directed payment to the witness as expenses or to the opposite party for delay. Others imposed costs to discourage repeated or belated pleas and keep the trial on schedule. The Supreme Court has now drawn a line between those administrative concerns and the court's role under Section 311. Once necessity is found, the order cannot be made conditional on payment.

Section 311 is framed as power coupled with responsibility, not only as a right of parties. The first part gives discretion to summon, examine, recall or re-examine any person at any stage. The second part says the court shall summon and examine or recall and re-examine any person if the evidence appears essential for a just decision. That mandatory limb leaves no room for conditions. If the evidence is essential, the court must bring it on record.

No Costs Once Necessity Is Found

In civil procedure, and in some criminal processes, costs orders compensate for adjournments or lack of diligence. Criminal courts can deal separately with expenses of complainants and witnesses and can regulate adjournments. Section 311 stands apart. It does not reward diligence or punish delay. It exists to ensure that material evidence does not escape the record because of an omission by either side or by the court.

When that necessity is found, the Court said, justice cannot depend on capacity to pay. An accused facing serious charges and a complainant with limited means stand on the same footing on whether the truth is before the judge. A costs condition in that situation would turn a duty to find truth into a transaction.

The ruling leaves control over abuse with the judge. Applications that do not meet the test can still be dismissed with reasons. A plea made only to fill gaps in a weak case, to harass a witness or to delay the end of trial can be rejected. What the court cannot do is hold the evidence necessary and still demand money to record it.

Recall pleas crowd sessions trials, warrant cases and summons cases, often after long examination and cross-examination. Even a modest costs condition can alter strategy. Defence counsel may hesitate to seek recall of a key witness if the client is in custody or without income. Prosecutors with heavy dockets face their own constraints. With costs out where necessity is proved, the decision turns on relevance and fairness alone.