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TMI Blog2016 (8) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguished the decision in Shiv Kumar Yadav [ 2015 (9) TMI 1702 - SUPREME COURT] and Fatehsinh Mohansinh Chauhan [ 2006 (8) TMI 684 - SUPREME COURT] . The High Court has opined that the court has to be magnanimous in permitting mistakes to be rectified, more so, when the prosecution was permitted to lead additional evidences by invoking the provisions Under Section 311 Code of Criminal Procedure. The High Court has also noticed that the accused persons are in prison and, therefore, it should be justified to allow the recall of witnesses. 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. 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 Code of Criminal Procedure. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had rejected the prayer of the accused persons seeking recall of the witnesses Under Section 311 read with Section 231(2) Code of Criminal Procedure. 2. To appreciate the controversy that has emanated in these appeals, it is obligatory to state the facts in brief. The prosecution case before the trial court is that on 18.07.2012 about 7 p.m. the accused persons being armed with door beams and shockers went upstairs inside M1 room of the Manesar Factory of Maruti Suzuki Limited, smashed the glass walls of the conference room and threw chairs and table tops towards the management officials, surrounded the conference hall from all sides and blocked both the staircases and gave threats of doing away with the lives of the officials present over there. As the allegations of the prosecution further unfurl, the exhortation continued for quite a length of time. All kind of attempts were made to burn alive the officials of the management. During this pandemonium, the entire office was set on fire by the accused persons and the effort by the officials to escape became an exercise in futility as the accused persons had blocked the staircases. The police officials who arrived at the spot t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys 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. 4. 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, DSP Om 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 Code of Criminal Procedure were recorded and thereafter the defence examined fifteen witnesses. 5. When the matter stood thus, on 30.11.2015, two petitions Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. After making such assertions, the Petitioners therein proceeded to state the law laid down by this Court in the context of Section 311 Code of Criminal Procedure. 7. In the second application filed by Kishan Kumar and Ors. for recalling of witnesses, namely, Shobhit Mittal, PW-7, Rajeev Kaul, PW-14, Sri Niwasan, PW-22 and Umakanta T.S., PW-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial Judge, referred to certain decisions by this Court including the recent decision in Shiv Kumar Yadav (supra) and came to hold that a case for recalling had been made out to ensure grant of fair opportunity to defend and uphold the concept of fair trial. It further expressed the view that when 148 accused persons are facing trial together, wherein the prosecution has examined 102 witnesses regarding different roles, weapons and 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 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 Indian Penal Code, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer. The High Court proceeded to opine that the accused-petitioners were charged with heinous offences including one Under Section 302 Indian Penal Code and recalling is not for the purpose of setting u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the defence had succeeded in its purpose of turning the already examined witnesses to be hostile to the case of prosecution by recalling them after a period of one year. In the present case the facts are clearly distinguishable as aforesaid. 12. On the basis of the aforesaid reasoning, the High Court allowed the petitions and set aside the impugned orders 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. 13. We have referred to the contents of the applications, delineation by the trial court and the approach of the High Court Under Section 482 Code of Criminal Procedure in extenso so that we can appreciate whether the order passed by the High Court really requires to be unsettled or deserves to be assented to. 14. Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Appellant-State of Haryana, criticizing the order of the High Court, submits that Section 311 Code of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure and its attractability to the existing factual matrix, we think it imperative to dwell upon the concept of fair trial . There is no denial of the fact that fair trial is an insegregable facet of Article 21 of the Constitution. This Court on numerous occasions has emphasized on the fundamental conception of fair trial as the majesty of law so commands. 17. A three-Judge Bench speaking through Krishna Iyer, J. in Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani (1979) 4 SCC 167, though in a different context, observed: Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case 10 case. We have to lest the Petitioner's grounds on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, it has been further held that the Court may actively participate in the trial to elicit the truth and to protect the weak and the innocent and it must, of course, not assume the role of a prosecutor in putting questions. 21. In Rattiram and Ors. v. State of Madhya Pradesh (2012) 4 SCC 516 speaking on fair trial the Court opined that: ... Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism. In the said case, it has further been held: 60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh (2009) 17 SCC 303 wherein it has been observed thus: (SCC p. 307, para 14) 14. ... Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. It has further been observed that in all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the majesty of the law and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Further, the Court has observed: Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncrete 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 entirety. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words 'to be' before the word 'essential' occurring in the old section. This Section is manifestly in two parts. Whereas the word used in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Court and enables it 'at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the court -- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this Section is expressed in the widest possible terms and do not limit the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this Section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. (Underlining is by us) 28. In Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110 occasion arose to appreciate the principles stated in Mohanlal Shamji Soni (supra). The two-Judge Bench took note of the observations made in the said case which was to the effect that while exercising the power Under Section 311 of Code of Criminal Procedure, the court shall not use such power for filling up the lacuna left by the prosecution . Explaining the said observation Thomas, J. speaking for the Court observed: Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier authorities and ruled that it is well settled that 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 of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in the 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. Be it stated, in the said case the court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High court. 31. In Rajaram Prasad Yadav v. State of Bihar and Anr. (2013) 14 SCC 461, the Court after referring to Section 311 Code of Criminal Procedure and Section 138 of the Evidence Act observed that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. xxxxxxxxx 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, 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 affo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination. We respectfully agree with the aforesaid exposition of law. 34. Keeping in mind the principles stated in the aforesaid authorities the defensibility of the order passed by the High Court has to be tested. We have already reproduced the assertions made in the petition seeking recall of witnesses. We have, for obvious reasons, also reproduced certain passages from the trial court judgment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, Awake! Arise! . There is a constant discomfort. ... 36. Yet again, in Gurnaib Singh v. State of Punjab (2013) 7 SCC 108, the agony was reiterated in the following expression: We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sinceri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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. 38. At this juncture, we think it apt to state that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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