POWER TO “RECALL OF WITNESS” BE INVOKED ONLY TO MEET ENDS OF JUSTICE, FOR STRONG AND VALID REASONS

The evidence of the prosecution commenced in August, 2013 and was concluded on 02.03.2015. Recording of statements of the accused persons under Section 313 CrPC was concluded by 13.04.2015.After the statements under Section 313 CrPC were recorded, the defence adduced its evidence by examining number of witnesses. Be it noted, when an application for bail was filed before the trial court and it was rejected upto the High Court, some accused persons moved the Supreme Court by filing Special Leave Petition (Criminal) Nos. 9881-9882 of 2013 and Supreme Court Court on 17.02.2014 passed the following order:-

“On 3.2.2014, this Court had directed learned counsel for the State of Haryana to inform the Court as to how many witnesses, the State proposes to examine and approximately how much time it will take. M.r K.T.S. Tulsi, learned senior counsel appearing on behalf of the State, has informed the Court that as of today, the prosecution wishes to examine total 186 witnesses, out of which 92 are eye-witnesses. However, as presently advised, the prosecution wants to examine only 23 eye witnesses. Two of the eye witnesses have already been examined. Therefore, 21 more eye-witnesses have to be examined. In view of this statement, we do not propose to pass any order on the bail application filed by the petitioner. We feel that it would be appropriate to give directions to the learned Sessions Judge to dispose of the trial as expeditiously as possible. We are informed that in a month, only one or two days are assigned by the learned Sessions Judge to this case. We are aware of the pressure under which the learned Sessions Judge is working. However, considering the peculiar nature of the offence and the number of persons involved in this case, we feel it would be in the interest of justice to expedite examination of eye witnesses and for that to take up the matter on day to day basis, if required. We direct the learned Sessions Judge to examine all the eye-witnesses by 30.4.2014. Needless to say that it will be open to the petitioner to prefer a bail application the after eye- witnesses are examined. We make it clear that on the merits of the petitioner’s case, we have expressed no opinion.”

To continue the narrative in chronology, on 13.02.2015, Salil Bihari Lal, PW-8, was recalled for further examination and on 20.02.2015, DSPOm Prakash, PW- 99, was recalled. On the same day, the prosecution concluded its evidence. As has been indicated earlier, the statements of the accused persons under Section 313 CrPC were recorded and thereafter the defence examined fifteen witnesses.

When the matter stood thus, on 30.11.2015, two petitions under Section 311 CrPC were filed by different accused persons. In the first petition filed by Ram Mehar and others, recall was sought of Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad, PW- 5, Salil Bihari Lal, PW- 8, Vikram Sarin, PW-10, Deepak Anand, PW-29 and DSP Om Prakash, PW-99. In respect of DeepakAnand, PW-29, it was stated that he was required to be recalled to establish that he is not a reliable witness. As regards Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad, PW-5, Salil Bihari Lal, PW-8 and Vikram Sarin, PW- 10, it was averred that they are required to be recalled in order to prove the manner and circumstances pertaining to how the incident took place. That apart, it was stated, certain important questions and suggestions pertaining to the injuries received by the prosecution witness and other persons were also required to be put to them. With regard to DSP Om Prakash, PW-99, it was asserted that recalling of the said witness was required to enable the accused persons to put forth certain aspects of the investigation, particularly with regard to the type of weapons used and injuries allegedly caused to various prosecution witnesses and other persons. The Court thought it appropriate to reproduce what further has been stated in the application:-

“6. That the cross-examination proposed to be undertaken by the defence will be limited to the aspect of injuries sustained by different witnesses and other persons, as well as the weapons of offence used, besides suggestions that specifically refute the sequence of events and roles ascribed to the accused etc.

7. That the accused persons undertake to conclude the cross-examination of these witnesses on the dates on which they appear, or such further dates as decided by this Hon’ble Court.

8. That it may be worthwhile to mention here that due to the nature of the case and the lack of individual representation to the 148 accused persons, much of the cross- examination was composite in nature and in the process, certain important questions and suggestions with respect to their individual roles and allegations, could not be satisfactorily put to the prosecution witnesses in question.

9. That the trial was essentially conducted by Sh. R.S. Hooda,Advocate, who was suffering from a critical illness throughout the trial, and on numerous occasions, despite his valiant effort and intentions, the above aspects were inadvertently missed out. The final arguments will now be conducted by a fresh team of Senior Lawyers, who have had occasion to examine the record and are therefore desirous of correcting certain inadvertent errors that may have crept into the defence of the accused.

10. That these aspects are extremely relevant and germane to the defence of the accused, and a denial of opportunity to further cross- examine the witnesses on these aspects would amount to a denial of the right to a fair trial. 11. That vide the present application, the Applicants are not seeking to raise any fresh grounds in defence, but merely correct certain errors committed during cross-examination, and as such this does not amount to the filing up of any lacunae in the defence.”

After making such assertions, the petitioners therein proceeded to state the law laid down by Supreme Court in the context of Section 311 CrPC.

In the second application filed by Kishan Kumar and others for recalling of witnesses, namely, Shobhit Mittal, PW-7, Rajeev Kaul, PW-14, Sri Niwasan, PW- 22 and Umakanta T.S., PW-28, the assertions were almost the same apart from some additional ground which the Court thought appropriate to reproduce:-

“7. That the trial was essentially conducted by Sh. R. S. Hooda, Advocate, who was suffering from a critical illness throughout the trial, and on numerous occasions, despite his valiant efforts and intentions, the above aspects were inadvertently missed out. The final arguments will now be conducted by a fresh team of senior lawyers, who have had occasions to examine the record, and are therefore, desirous of correcting certain inadvertent errors that may have crept into the defence of the accused.

8. That these aspects are extremely relevant and germane to the defence of the accused, and a denial of opportunity to further cross- examine the witnesses on these aspects would amount to a denial of the right to a fair trial. 9. That vide the present application, the Applicants are not seeking to raise any fresh grounds in defence, but merely correct certain errors committed during cross-examination, and as such this does not amount of filing up of any lacuna in the defence.”

The learned trial Judge noted the contentions advanced by the learned counsel for the defence and the prosecution and observed that:-

“7. The present application has been moved at a very belated stage at a time when 102 prosecution witnesses have already been examined during this trial in which larger number of 148 accused are involved and they have been examined way back as prosecution evidence was concluded on 2.3.15. Long time was consumed for recording the statements of the accused under section 313 Cr.P.C. and for the last more than six months, the case is being adjourned for recording the defence evidence and in this regard number of opportunities have been availed by the defence and 15 defence witnesses have been examined so far. At this juncture it may be recalled that Hon’ble Supreme Court has directed this court to decide this trial expeditiously.

9. Nothing has been explained as to what are the left out questions and how the questions already put to the said witnesses created inroad into the defence of the said accused. In para 3 of the application, it is stated that the manner and circumstances as to how the incident took place and further the questions pertaining to weapons used and the injuries to the said witnesses and to others are certain other questions, which are to be put to them. A perusal of the statements of the aforesaid four witnesses clearly reveal that they have been cross examined at length and there is nothing that defence counsel faltered by not putting relevant questions to them. Putting it differently it is not a case of giving walk over by the defence to the prosecution witnesses by not properly conducting the cross examination. It is rightly argued by learned PP that if the present application is allowed then there will be no end of moving such applications and who knows that another changed defence counsel may come up with similar sort of application stating that the previous defence counsel inadvertently could not put material questions. It may be recalled that the present applicants are in custody but that does not mean that they cannot move the application to delay the trial which has already been delayed considerably. The defence has already availed numerous opportunities. This court in order to ensure the fair trial allowed the successive applications moved by the defence to examine the witnesses to support their respective pleas. An old adage of a fair trial to accused does not mean that this principle is to be applied in favour of accused alone but this concept will take in its fold the fairness of trial to the victim as well as to the society. The court being neutral agency is expected to be fair to both the parties and its duty is also to ensure that the process of law is not abused by either of them for extraneous reasons. The speedy trial is essence of justice but such like applications like the present one should not come in the way of delivery of doing complete and expeditious justice to both the parties.”

After so stating, the learned trial Judge referred to the authorities in Hoffman Andreas v. Inspector of Customs Amritsar [ 2000 (10) SCC 430], P. Chhaganlal Daga v. M. Sanjay Shaw [2003 (11) SCC 486], P. Sanjeeva Rao v. State of Andhra Pradesh [2012 (7) SCC 56], Natasha Singh v. Central Bureau of Investigation (State) [JT 2013 (9) SC 57] and State (NCT of Delhi) v. Shiv Kumar Yadav and another [2016 (2) SCC 402] and came to hold that when the material questions had already been put, there was no point to entertain the application and mere change of the counsel could not be considered as a ground to allow the application for recalling the witnesses for the purpose of further cross- examination. It is worthy to note that two separate orders were passed by the trial court but the analysis is almost the same.

Dissatisfied with the aforesaid orders, the accused persons preferred CRM-M No. 482 of 2016 and CRM- M No. 484 of 2016 before the High Court under Section 482 CrPC. The High Court took note of the common ground that the leading counsel for the defence was critically ill during the trial and due to inadvertence, certain important questions, suggestions with respect to the individual roles and allegations against the respective accused persons, the injuries sustained by the witnesses, as well as the alleged weapons of offence used, had not been put to the said witnesses. It also took note of the fact that the senior lawyer had been engaged at the final stage and such inadvertent errors were discovered by him and they needed to be rectified in order to have a meaningful defence and a fair trial.

The High Court allowed the petitions and set aside the impugned order passed by the trial judge and directed as follows:

“… in case the learned trial Court during the cross examination of the such recalled witnesses is of the opinion that such opportunity is being misused to make the witnesses resile from their earlier testimonies, in that eventuality the trial Court would be at full liberty to put a stop to that effort.”

The State of Haryana thereafter filed special leave petition against the judgement of the High Court. The Supreme Court allowed the appeals, set aside the order passed by the High Court and restored that of learned trial judge. The Supreme Court directed the trial judge to proceed with the trial in accordance with law.

The operative part of the judgment reads as under:-

The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions.

The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesses. That apart, it has been urged that certain suggestions could not be given. The marrow of the grounds relates to the illness of the counsel. It needs to be stated that the learned trial Judge who had the occasion to observe the conduct of the witnesses and the proceedings in the trial, has clearly held that recalling of the witnesses were not necessary for just decision of the case.

In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, that is 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions and give certain suggestions. It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction. It is noticeable that the High Court has been persuaded by the submission that recalling of witnesses and their cross-examination would not take much time and that apart, the cross- examination could be restricted to certain aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross- examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. We are disposed to think that this kind of plea in a case of this nature and at this stage could not have been allowed to be entertained.

Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous.

At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.

The decisions of this court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any strait- jacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other . Once absolute predominance is recognized, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entir ety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority , the cour ts have significantly an eminent role. A plea of fairness cannot be utilized to build Castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. Be it stated when the process of the court is abused in the name of fair trial at the drop of a hat, there is miscarriage of justice. And, justice, the queen of all virtues, sheds tears. That is not unthinkable and we have no hesitation in saying so.

The Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 CrPC. We think it seemly to reproduce some of them:- “

17.2. The exercise of the widest discretionary

power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4.TheexerciseofpowerunderSection311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while

exercising the discretion. The court should bear inmindthatnopartyinatrialcanbeforeclosed fromcorrectingerrorsandthatifproperevidence was not adduced or a relevant material was not broughtonrecordduetoanyinadvertence,the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”

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Authorities relied upon : 2016 (2) SCC 402, 1981 (3) SCC 191, 1979 (4) SCC 167, 1978 (2) SCC 518, 1972 Cri LJ 1485, AIR 1968 SC 178, 1963 (2) SCJ 204.