The Supreme Court held that courts must use Section 311 CrPC only when the evidence is absolutely necessary to reach the truth. It set aside the High Court order allowing examination of a minor witness at a very late stage, saying it would delay the trial and prejudice the accused.
New Delhi: The Supreme Court has once again clarified that the power given to courts under Section 311 of the Criminal Procedure Code (CrPC) cannot be used casually and should be exercised only in rare situations where the evidence sought is absolutely necessary to reach the truth.
The observation was made by a Division Bench of Justice Vikram Nath and Justice Augustine George Masih while deciding an appeal against a judgment of the Gujarat High Court.
The High Court had earlier allowed an application filed under Section 311 CrPC by the prosecution, permitting it to examine the minor daughter of the deceased as a witness at a very late stage of trial.
While setting aside the High Court’s order, the Supreme Court clearly held that such a course was not justified in the present case.
The Bench observed:
“….the application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial. Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The present case does not satisfy this requirement. Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused.”
The appeal was filed by the accused persons, who were represented by Advocate-on-Record Mayank Kshirsagar. The State and the complainant were represented by Advocate-on-Record Swati Ghildiyal.
The case arose from a complaint lodged by the father of the deceased woman. He alleged that his daughter had died by suicide due to continuous mental and physical cruelty inflicted on her by her husband and in-laws over dowry demands.
Based on this complaint, an FIR was registered for offences under Sections 498A, 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860, along with Sections 3 and 7 of the Dowry Prohibition Act, 1961.
During the trial, the prosecution examined 21 witnesses. After the examination of these witnesses was completed, the prosecution filed an application on September 06, 2025 under Section 311 CrPC.
Through this application, the prosecution sought permission to examine the minor daughter of the deceased as a witness, claiming that the child was present in the house at the time when the incident occurred.
At the time of the alleged incident, the child was only about 4 years and 9 months old.
The Trial Court rejected this application. While doing so, it noted that at no earlier stage had the complainant ever stated that the minor child was present at the time of the incident.
The court pointed out that neither the FIR nor any statements recorded during the investigation, including the complainant’s own statement, mentioned the presence of the child.
The Trial Court also observed that there was nearly a one-month delay in filing the FIR, yet even during this period, no such fact was disclosed. Considering the very young age of the child and the complete absence of any explanation for the delay, the Trial Court refused to allow her examination as a prosecution witness.
However, the Gujarat High Court overturned the Trial Court’s decision. The High Court allowed the petitions filed by the prosecution, reasoning that the minor child could be treated as a material witness, and possibly an eyewitness, keeping in view Section 118 of the Indian Evidence Act, 1872, which permits children to testify if they are capable of understanding questions and giving rational answers.
Challenging the High Court’s decision, the appellants approached the Supreme Court. Their counsel argued that the child was barely four years old at the time of the incident and that her statement was never recorded during the investigation.
It was submitted that the child is now around 11 years old and has been living with her maternal grandparents ever since the incident. Given the long gap of more than seven years, it was contended that the child could not reasonably be expected to remember the incident accurately.
The appellants further stressed the serious possibility of tutoring, especially since the child has been separated from her father for several years. It was also pointed out that not a single prosecution witness, including the complainant, had ever claimed that the child was present at the scene of the incident.
Allowing her examination at such a late stage, it was argued, would cause grave prejudice to the accused and unnecessarily prolong the trial.
Accepting these submissions, the Supreme Court held that the prosecution had failed to show that examining the minor child at this advanced stage of the trial was essential for a just and fair decision.
The Court concluded that the High Court had erred in allowing the application under Section 311 CrPC and that such power must be exercised with great caution.
Accordingly, the Supreme Court allowed the appeal and set aside the High Court’s order permitting the examination of the child witness.
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The appellants were represented by Advocate-on-Record Mayank Kshirsagar, along with Advocate Anumita Verma, Advocate Pavani Verma, Advocate Jaideep Sindhi and Advocate Akhilesh Yadav.
The respondents were represented by Advocate-on-Record Swati Ghildiyal, Advocate Pradhuman Gohil, Advocate-on-Record Taruna Singh Gohil, Advocate Alapati Sahithya Krishna, Advocate Hetvi Ketan Patel, Advocate Rushabh N. Kapadia, Advocate Taniya Bansal, Advocate Kawalpreet Kaur and Advocate Pulkit Khanduja.
Case Title:
Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr.
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