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TMI Blog2015 (9) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... nd had not effectively cross-examined the witnesses, having regard to the facts and circumstances of this case. 2. Facts relevant for deciding the issue lie in a narrow compass. On 6th December, 2014, a First Information Report was lodged alleging that the Respondent accused who was the driver of cab No. DL-1YD-7910, Swift Dzire, hired by the victim on 5th December, 2014 for returning home from her office committed rape on her. The statement of the prosecutrix was recorded Under Section 164 Code of Criminal Procedure on 8th December, 2014. After investigation, charge sheet was filed before the Magistrate on 24th December, 2014. Since the accused was not represented by counsel, he was provided legal aid counsel. Thereafter on 2nd January, 2015, the accused engaged his private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in place of the legal aid counsel. Thereafter, the case was committed to the Court of Session. Charges were framed on 13th January, 2015. Prosecution evidence commenced on 15th January, 2015 and was closed on 31st January, 2015. The witnesses were duly cross-examined by the counsel engaged by the accused. Statement of the accused Under Section 313 Code of Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tious trial in a heinous offence was another factor which was required to be taken into account. In this case, a further factor which the impugned order ignores is that the Respondent was not facing a criminal case for the first time. He was facing three cases of rape earlier and was well conversant with the legal matters. He had made his own informed choice in appointing a counsel. Interference by the High Court was permissible only when the view taken by the trial court declining prayer for recall was found to be perverse or unjust. It was further pointed out that the conclusion recorded by the High Court was contrary to the findings in the order rejecting various grounds raised in support of prayer for recall. Learned Attorney General made reference to decisions of this Court in Rajaram Prasad Yadav v. State of Bihar (2013) 14 SCC 461, Mannan Sk v. State of West Bengal (2014) 13 SCC 59, P. Sanjeeva Rao v. State of A.P. (2012) 7 SCC 56, State of Punjab v. Gurmit Singh (1996) 2 SCC 384, State of Karnataka v. Shivanna (2014) 8 SCC 916, Hofman Andreas v. Inspector of Customs (2000) 10 SCC 430, Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263, Devender Pal Singh v. State (NCT of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra and Haveli v. Fatehsinh Mohansinh Chauhan (2006) 7 SCC 529, Iddar v. Aabida (2007) 11 SCC 211, Himanshu Singh Sabharwal v. State of M.P. (2008) 3 SCC 602, Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. (2008) 11 SCC 108, Hanuman Ram v. The State of Rajasthan (2008) 15 SCC 652, Sudevanand v. State through CBI (2012) 3 SCC 387, Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi AIR (2012) SC 750, J. Jayalalithaa v. State of Karnataka (2014) 2 SCC 401, Salamat Ali v. State (Crl. A. No. 242/2010, High Court of Delhi). 9. We have considered the rival submissions. 10. It can hardly be gainsaid that fair trial is a part of guarantee Under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions. 11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.--The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 14. A conspicuous reading of Section 311 Code of Criminal Procedure would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. The exercise of power Under Section 311 Code of Criminal Procedure 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. 17.8. The object of Section 311 Code of Criminal Procedure simultaneously impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed: 6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the Appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry decision relied upon by the learned Counsel for the Appellant, namely, Strickland v. Washington makes it clear that judicial scrutiny of a counsel's performance must be careful, deferential and circumspect as the ground of ineffective assistance could be easily raised after an adverse verdict at the trial. It was observed therein: Judicial scrutiny of the counsel's performance must be highly deferential. It is all too tempting for a Defendant to second-guess the counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining the counsel's defence after it has proved unsuccessful, to conclude that a particular act of omission of the counsel was unreasonable. Cf. Engle v. Isaac [456 US 107 (1982) at pp. 133-134). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that the counsel's conduct f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The accused then can be committed to the appropriate court for trial whereby the trial court can straightaway allow cross-examination of the witnesses whose evidence were recorded earlier before the Magistrate. 5. What we wish to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate Under Section 164 Code of Criminal Procedure and the same be kept in sealed cover to be treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross-examine them with further liberty to the accused to lead his defence witnesses and other evidence with a right to cross-examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast-track procedure to the Fast Track Court to resort to. 6. Considering the consistent recurrence of the heinous crime of ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us be circulated to all the Directors General of Police of all the States/Commissioners of Police in Metropolitan cities/Commissioners of Police of Union Territories who are then directed to send a copy of this order to all the Police Stations-in-Charge in their States/Union Territories for its compliance in cases which are registered on or after the receipt of a copy of these directions. Necessary instructions by the DGPs/Commissioners of Police be also issued to all the Police Stations-in-Charge by the DGPs/Commissioners of Police incorporating the directions issued by us and recorded hereinbefore. 20. In Mir. Mohd. Omar v. State of W.B. (1989) 4 SCC 436 after the statement of the accused Under Section 313 was recorded, the public prosecutor filed an application for his re-examination on the ground that some more questions are required to be asked. The application was rejected by the trial court but allowed by the High Court. This Court disapproved the course adopted and held: 16. ... Here again it may be noted that the prosecution has closed the evidence. The accused have been examined Under Section 313 of the Code. The prosecution did not at any stage move the trial Judge fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders passed by the trial Court dated 18th February, 2015 and the High Court dated 4th March, 2015. Referring to the ground of the earlier counsel not being competent, the trial court observed that the counsel was of the choice of the accused. The accused was not facing a criminal trial for the first time. The cross-examination of witnesses was deferred time and again to enable the counsel to seek instructions from the accused. The cross-examination of the prosecutrix was deferred on 15th January, 2015 to enable the counsel to have legal interview with the accused. After part of cross-examination on 16th January, 2015, further cross-examination was concluded on 17th January, 2015. Cross-examination of PW 13 was deferred on the request of the accused. Similarly, cross-examination of PWs 22, 26 and 27 was deferred on the request of the defence counsel. After referring to the record, the trial court observed as under: 22. The aforesaid proceedings clearly bely the claim of the accused/applicant that the case has been proceeding at a "hurried pace" or that he was not duly represented by a defence counsel of his choice. The claim of the applicant that he was unwilling to continue with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am supported in my view by the observations of Hon'ble Delhi High Court in its order dated 20/02/2008 in case titled as Raminder Singh v. State Criminal MC 8479/2006, where it has been held as under: In the first place, it requires to be noticed that scope of Section 311 Code of Criminal Procedure does not permit a court to go into the aspect whether material portions of the evidence on record should have been put to the witness in cross-examination to elicit their contradictions. If the court is required to perform such an exercise every time an application is filed Under Section 311 then not only would it be pre-judging what according to it are 'material portions' of the evidence but it would end up reappraising the entire cross-examination conducted by a counsel to find out if the counsel had done a competent job or not. This certainly is not within the scope of the power of the trial court Under Section 311 Code of Criminal Procedure. No judgment has been pointed out by the learned Counsel for the Petitioner in support of such a contention. Even on a practical level it would well nigh be impossible to ensure expeditious completion of trials if trial courts were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that it was the constructive denial of the counsels to accused Mohd. Afzal. The observations of the Hon'ble Delhi High Court were met with the approval by Hon'ble Supreme Court when the matter was decided by the Hon'ble Apex Court by its ruling titled as State v. Navjot Sandhu and Ors. AIR 2005 SC 3820. 30. The Hon'ble Apex Court, after considering the facts of the case, nutshell that "we do not think that the court should dislodge the Counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far." While relying upon the ruling in the case Strickland's (supra), the Hon'ble Supreme Court observed that scrutiny of performance of a counsel who has conducted trial should be highly deferential. xxx 34. It may be noted that the recall of IO and prosecutrix has been sought on the ground besides others, that she has to be questioned as to why she did not give her sim of her mobile to the IO and why the IO did not ask her for the same. Similarly, it has been submitted that the accused though admitted his potency report but has not admitted the time and process of the potency test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistration) (1984) 1 SCC 722, State of U.P. v. Shambhu Nath Singh (2001) 4 SCC 667, Akil @ Javed v. State of NCT of Delhi (2013) 7 SCC 125 and Vinod Kumar v. State of Punjab (2015) 1 SCALE 542, requiring the trials to be conducted on day to day basis keeping in view the mandate of Section 309 Code of Criminal Procedure. 24. After rejecting the plea of the accused that there was any infirmity in the conduct of the trial after detailed reference to the proceedings, the High Court concluded: 31. The aforesaid narration of proceedings before the learned Additional Sessions Judge clearly reflects that while posting the matter on day to day basis, the Court's only endeavour was to comply with the provisions of Section 309 Code of Criminal Procedure as far as possible while ensuring the right of the accused to a fair trial. The earlier counsel had been seeking adjournment for consulting the Petitioner which was duly granted and under these circumstances the submission of learned Counsel for the Petitioner that justice hurried is justice buried, deserves outright rejection. 25. It was then observed that competence of a counsel was a subjective matter and plea of incompetence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. 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, we do not find any ground to justify the ..... 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