Section 311 of the Cr.P.C. allows courts to add essential witnesses to ensure a fair trial, irrespective of previous police questioning.

Petitioners challenge an order issued under section 311 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) permitting persons who were never questioned by the Investigating Officer, to be examined as additional witnesses in a murder trial.

2. Petitioners are some of the accused in S.C. No.935/2017 on the files of the Additional Sessions Court–VII, Thiruvananthapuram, which arose out of Crime No.68/2012 of Ayiroor Police Station. As per the prosecution allegations, the accused had, on 24.07.2012, in furtherance of their common object armed with dangerous weapons, stabbed Sri. Rijesh, who later succumbed to his injuries, thereby committing the offences, including section 302 of the Indian Penal Code, 1860 (for short ‘IPC’). A counter case was also registered against the deceased and other persons alleging offences, including section 308 IPC, as Crime No.81/2012. After completing the investigation into both crimes, final reports were filed.

Petitioners are facing prosecution in S.C. No.935/2017 on the files of the Additional Sessions Court–VII, Thiruvananthapuram, and the counter case is being prosecuted as S.C. No.24/2017 before the same court. 3. While so, when S.C. No.935/2017 was posted for taking the statement of the accused under section 313 Cr.P.C, the Public Prosecutor filed a petition as Crl.M.P. No. 1856/2024 under section 311 Cr.P.C to examine additional witnesses, who are accused 2, 4 and 5 in the counter case. By the impugned order dated 04-02-2024, the learned Sessions Judge found the examination of those witnesses essential and allowed the said petition. Petitioners assail the said order. 4. Sri. Sasthamangalam S. Ajith Kumar, the learned Senior Counsel duly instructed by Sri. Jaison Joseph, learned counsel for the petitioners, contended that the witnesses who are now sought to be examined as additional witnesses on behalf of the prosecution are persons who have never been questioned by the police earlier and that the same will cause serious prejudice to the defence case. It was also pointed out that the scope of section 311 Cr.P.C cannot be expanded to examine any person whom the prosecution wants, and the said provision cannot be intended to destroy the defence put up by the accused, especially when the witnesses now sought to be examined are persons who have never been questioned nor have their previous statement been recorded. Referring to an order dated 04.02.2024 in Crl.M.P. No.1761/2024 in the very same case, the learned Senior Counsel submitted that when an application for further investigation to question the same witnesses, now sought to be examined, was filed by a stranger to the prosecution, the learned Sessions Court had dismissed it. It was submitted that by the impugned order, those persons are now permitted to be examined on the application of the prosecutor, which causes serious prejudice and contradicts the earlier order of the court.

5. Sri.T.R.Renjith, the learned Public Prosecutor on the other hand, submitted that the powers under section 311 Cr.P.C are enormous and wide and, therefore no restriction can be put on the said power, especially when the court is satisfied that the evidence is essential, for a just decision of the case. The learned Public Prosecutor, after referring to the decision in Varsha Garg v. State of Madhya Pradesh and Others [2022 SCC Online SC 986] submitted that when the court deems it fit to exercise the powers, this Court ought not to interfere with such an order, unless there is any perversity. The learned Public Prosecutor also submitted that substantial reasons have been given by the learned Sessions Judge while allowing the application, and the same cannot be said to be perverse or improper, warranting an interference under section 482 of the Cr.P.C. 6. Sri.P.Anoop, the learned counsel appearing on behalf of the defacto complainant, submitted that the Investigating Officer's omission to question the witnesses cannot stand in the way of the Public Pro