2015 (9) TMI 1702 - SC - Indian Laws

Recall of witnesses at the stage when statement of accused Under Section 313 of the Code of Criminal Procedure has been recorded - plea is that the defence counsel was not competent and had not effectively cross-examined the witnesses - HELD THAT - Inspite of the High Court not having found any fault in the conduct of the proceedings it held that although recalling of all the prosecution witnesses is not necessary recall of certain witnesses was necessary for the reasons given in para 15(a) to (xx) on the application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is only he who would suffer - It is difficult to approve the view taken by the High Court. Undoubtedly fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power Under Section 311 Code of Criminal Procedure is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds without considering the hardship to the witnesses undue delay in the trial and without any other cogent reason allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could in the circumstances be hardly accepted as valid or serving the ends of justice. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations there are no ground to justify the recall of witnesses already examined. The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination - appeal allowed.

Issues Involved:
1. Recall of witnesses at the stage after the statement of the accused under Section 313 of the Code of Criminal Procedure.
2. Competence of the defense counsel and effective cross-examination.
3. Fair trial considerations from the perspectives of the accused, the victim, and society.
4. Judicial discretion under Section 311 of the Code of Criminal Procedure.
5. Expeditious trial in heinous offenses.
6. Harassment of the victim and undue delay in the trial.
7. Judicial superintendence under Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure.

Issue-wise Detailed Analysis:

1. Recall of Witnesses:
The primary issue was whether the recall of witnesses after the statement of the accused under Section 313 CrPC could be allowed on the grounds that the defense counsel was not competent and had not effectively cross-examined the witnesses. The trial court had rejected the application for recall, and this decision was initially upheld by the High Court, but later overturned, allowing the recall of certain witnesses.

2. Competence of Defense Counsel:
The trial court found that the accused had been represented by counsel of his choice and that the counsel had been given ample opportunity to cross-examine the witnesses. The competence of the counsel was questioned by the new defense counsel, but the court held that the competence of a lawyer is subjective and cannot be solely judged by their date of enrollment with the Bar Council. The High Court also noted that the accused had not raised any objections against his counsel's competence during the trial.

3. Fair Trial Considerations:
The judgment emphasized that fair trial principles must consider the interests of the accused, the victim, and society. It was noted that the system cannot be held to ransom in the name of fair trial for the accused alone. The court must ensure that the victim is not unduly harassed and that the trial is conducted expeditiously, especially in heinous offenses.

4. Judicial Discretion under Section 311 CrPC:
The Supreme Court reiterated that the power to recall witnesses under Section 311 CrPC is wide but must be exercised judiciously and not arbitrarily. The court must record specific reasons for recalling witnesses, ensuring that it is essential for the just decision of the case. The judgment cited several precedents to outline the principles guiding the exercise of this power, emphasizing that it should not be used to fill lacunae in the prosecution's case or to cause undue delay.

5. Expeditious Trial:
The court highlighted the importance of expeditious trials in cases involving heinous offenses like rape. It referred to previous directives for fast-tracking such trials and noted that undue delays could cause significant hardship to the victims. The judgment stressed that the trial court had conducted the proceedings in accordance with the mandate for speedy trials.

6. Harassment of the Victim and Undue Delay:
The judgment noted that recalling witnesses, especially in sensitive cases, could lead to undue harassment of the victim. The court emphasized that the accused's custody status and potential suffering due to delay could not justify the recall of witnesses. The interests of justice must balance fair opportunities for the accused with the need to protect victims from repeated court appearances.

7. Judicial Superintendence:
The Supreme Court criticized the High Court's exercise of its supervisory jurisdiction under Article 227 of the Constitution and Section 482 CrPC. It held that these powers should be used sparingly and only in cases of patent error or gross injustice. The High Court's decision to allow the recall of witnesses was found to be inconsistent with its own findings and lacked specific reasons justifying the recall.

Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's order permitting the recall of witnesses, and dismissed the application for recall. It emphasized that the trial court's decision was neither erroneous nor unjust and that the High Court had failed to provide valid reasons for its contrary conclusion. The judgment reinforced the principles of fair trial, judicial discretion, and the need for expeditious proceedings in heinous offenses.

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