2016 (3) TMI 1432 - HC - Indian Laws

Recalling of the 04 named witnesses declined - Common ground seeking recalling was that Sh. R.S. Hooda, Advocate , who was the leading defence counsel 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 petitioners, the injuries sustained by the witnesses, as well as the alleged weapons of offence used, had not been put to the said witnesses - HELD THAT - In the opinion of this Court a case for recalling is made out to ensure fair opportunity to defend and uphold the concept of fair trial. The conceded fact that 148 accused persons are facing trial together, wherein the prosecution has examined 102 witnesses regarding different roles/weapons/injuries attributed to various accused qua various victims on the day of occurrence stretched over a period of time within a huge area of factory premises, does raise a sustainable inference that there was a confusion during the conduct of the trial leading to certain inadvertent omissions and putting proper suggestions on material aspects, which are crucial for the defence in a trial inter alia for an offence under Section 302 IPC, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer. The accused-petitioners are charged with heinous offences including under Section 302 IPC and it was stressed that the purpose of recalling is not to set up a new case or make them turn hostile but only to have a proper defence as it is to be judicially noticed that for lack of proper suggestions by the defence to the prosecution witnesses, the learned trial Courts at times tend to reject the raised defence on behalf of the accused. Some of such omissions and suggestions by way of illustration have been spelt out in the body of the petitions and some are stated to be withheld for avoiding any prejudice to the defence, nevertheless the stated purpose is not to render the prosecution witnesses hostile to the case of prosecution. Hence such inadvertent omissions and lack of suggestions have to be accepted to be bonafide and constituting a valid reason requiring the approach of the Court to be magnanimous in permitting such mistakes to be rectified, moreso when the prosecution, concededly, were permitted twice to lead additional evidence by invoking the provisions under Section 311 Cr.PC on no objection of the defence, after the closure of the prosecution evidence. The accused-petitioners are in custody and having nothing to gain from delaying the trial. The reasons assumed for declining the recalling in the impugned order dated 16.11.2015 (P-1) are clearly misconceived and thus vitiated. It is apparent from the provisions of Section 311 Cr.PC as interpreted by the Courts that the exercise of the power to recall is not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case. The respective applications dated 30.11.2015 (P-4 in both the petitions) under Section 311 Cr.PC seeking recall of the named witnesses are allowed - Petition allowed.

Summary

Issues Involved:
1. Recall of witnesses under Section 311 read with Section 231(2) Cr.PC.
2. Fair trial and defense rights.
3. Judicial discretion in recalling witnesses.
4. Speedy trial versus fair opportunity for defense.

Detailed Analysis:

1. Recall of Witnesses under Section 311 read with Section 231(2) Cr.PC:
The petitions involved the recall of witnesses in a criminal trial concerning serious charges including murder (Section 302 IPC). The trial court had declined the applications for recalling witnesses, stating the applications were belated, the change of counsel was not a valid reason, and the specific questions left out were not disclosed. The High Court, however, emphasized that Section 311 Cr.PC gives courts wide discretion to recall witnesses at any stage if it is necessary for a just decision. The court found that the trial's complexity, involving 148 accused and 102 witnesses, justified the recall to address inadvertent omissions.

2. Fair Trial and Defense Rights:
The defense argued that the initial counsel's illness led to critical omissions during cross-examination, which were discovered by a new legal team. The court agreed that ensuring a fair trial required allowing the defense to correct these errors, especially given the serious charges. The court highlighted that a fair trial is fundamental, and the accused must be given every opportunity to defend themselves adequately.

3. Judicial Discretion in Recalling Witnesses:
The judgment referenced several Supreme Court cases to underline the principles guiding the recall of witnesses. It was noted that the power to recall witnesses should be exercised to prevent a miscarriage of justice, not to fill lacunae in the prosecution's case. The court stressed that the discretion under Section 311 Cr.PC should be used judiciously, ensuring the trial's integrity and fairness.

4. Speedy Trial versus Fair Opportunity for Defense:
The prosecution and complainant argued that recalling witnesses would delay the trial, contrary to the Supreme Court's directive for an expedited trial. However, the High Court found no specific deadline imposed by the Supreme Court and emphasized that the right to a speedy trial should not override the necessity of a fair trial. The court concluded that the accused's right to a proper defense, including the recall of witnesses for further cross-examination, was paramount.

Conclusion:
The High Court allowed the petitions, setting aside the trial court's orders and permitting the recall of the specified witnesses. The court clarified that if the trial court observed any misuse of this opportunity to turn witnesses hostile, it could intervene accordingly. This judgment underscores the balance between expeditious proceedings and the fundamental right to a fair trial.