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TMI Blog2016 (3) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 231(2) Cr.PC for recalling of the 08 named witnesses has been declined. In CRM-M No.484 of 2016 titled as Krishan Kumar & Ors. Vs. State of Haryana, 09 accused have laid challenge to the order dated 16.12.2015 Annexure P-1 passed by the learned Additonal Sessions Judge, Gurgaon-trial Court whereby their application under Section 311 read with Section 231(2) Cr.PC for recalling of the 04 named witnesses has been declined. 2. The admitted facts are that the accused-petitioners (in both the petitions) were nominated as accused in aforesaid FIR No.184 dated 18.07.2012 on account of occurrence on 18.07.2012 in the premises of the Maruti Suzuki plant at Manesar resulting into injuries to the official of the company and death of one Mr. Avnish Dev, General Manager. The petitioners (in both the petitions) were arrested in the month of July/August 2012. The investigating agency on conclusion of the investigations filed a challan dated 08.10.2012 against 148 accused persons including the petitioners (in both the petitions). The charges were framed on 22.08.2013, inter alia, under Section 302 of Indian Penal Code. The evidence of the prosecution commenced on 21.01.2014 and was conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, that such a recourse would delay the trial in violation of the directions passed by the Hon'ble Supreme Court. (iii) that the ground of engaging of new lawyers in place of previous counsel, who could not properly conduct the cross examination has been found to be inadequate. (iv) that the applicants/accused have not explained as to what were the left out questions which were so crucial to the defence of the accused-petitioners. 4. Learned Counsel for the petitioners have contended that the reasons for declining the recalling of the witnesses are unsustainable in law and, therefore, impugned orders dated 16.12.2015 passed by the learned trial Court are liable to be set aside in view of the following:- (a) that the nature and extent of the power vested in the courts under Section 311 Cr.PC to recall the witnesses is couched in the widest possible terms and is not limited either with regard to the stage at which the powers of the Courts should be exercised or with regard to the manner in which it should be exercised, but is to be guided by what it considers absolutely necessary/ essential for the just decision of the case. Therefore, the reason for declining that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners have next contended that in the facts of the present case, when a joint trial of 148 accused is being conducted, the accused-petitioners are entitled to a fair opportunity to defend themselves by recalling of the named witnesses for further cross examination, failing which would lead to miscarriage of justice. It is argued that the recalled witnesses have to be confronted only with certain formal questions and suggestions that are very material for the proper defence of the accused charged inter alia for an offence under Section 302 IPC, that would neither delay the trial nor prejudice the prosecution. The applicants/petitioners are not seeking to raise any fresh grounds in defence but are merely seeking to correct certain errors committed during cross examination, and as such would not amount to filling up of any lacunae in defence. It was also stressed that there is absolutely no effort to turn the testimonies of the recalled witnesses hostile to the case of the prosecution. In support reliance is placed upon the decisions of the Hon'ble Supreme Court reported as Rajendra Prasad Vs. Narcotic Cell (1999)6 SCC 110, Raghunandan Vs. State of U.P. AIR 1974 SC 463, P. Chhaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been heard, an application of the prosecution under Section 311 Cr.PC for recalling the three witnesses was allowed by the trial Court, the revision was dismissed by the learned Single Judge, of the Delhi High Court and the matter was taken to the Hon'ble Supreme Court by the aggrieved accused. It was held that a lacunae in the prosecution is not to be equated with the fallout of an oversight committed by a counsel during trial either in producing relevant materials or in eliciting relevant answers from the witnesses. The mistakes or laches during conduct of a trial cannot be understood as a lacunae which a court cannot fill up. The relevant para 8 and 12 of the judgment are as under:- " 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dictated by the exigency of the situation and fair play and not by the stage of the proceedings. Lastly in P Sanjeeva Rao's case (supra) the accused was being prosecuted for offences punishable under the Prevention of Corruption Act, 1988. The accused made an application for recalling of PW-1 and PW-2 for cross examination on the ground that their cross examination had been deferred till such time the trap laying officer PW-11 was examined by the prosecution. Since PW-11 had been examined, the application was moved. It was contested by the prosecution that the cross examination of PW-1 and PW-2 had been recorded as "Nil" and there was nothing on record to show that a right to cross examine PW-1 and PW-2 at a later point of time was reserved. The application was rejected by the trial Court in view of the stand of the prosecution while also holding that recall of the said witnesses after three and a half years would prejudice the prosecution. The Hon'ble High Court upheld the order in revision. The Hon'ble Supreme Court allowed the appeal of the accused while setting aside the orders passed by both the aforesaid Courts. The Hon'ble Supreme Court by examining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.2 The exercise of the widest discretionary power under Section 311 Cr.PC 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 esential 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 Cr.PC 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 examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia under Section 302 IPC by the trial Court. Their appeals were dismissed by the Hon'ble High Court while converting the death sentence of two of the accused into life imprisonment. It was held that the non recovery of the offending car in the course of committing the offence was not a ground to disbelieve otherwise the creditworthy direct evidence of the eye witnesses. The recovery of the arms from a place open to the public on the disclosure statement also could not be held to be not proved in the face of other evidence on record. The principal arguments of the appellants that all the eye witnesses had turned hostile and therefore, the credibility of their testimonies was doubtful, was rejected. It was held that the witnesses were recalled after one year of their earlier testimonies supporting the prosecution, and on account of they having been won over either by money, my muscle power, by threats or intimidation had subsequently turned hostile. In this background of facts, the Hon'ble Court was of the view that witnesses should not be recalled after lapse of more than one year since their earlier testimonies. 9. After giving thoughtful consideration to the rival conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, 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. No doubt speedy trial is essential in cases involving heinous crimes, however, nothing has been shown on record that the Hon'ble Supreme Court has specifically laid down a date by which the trial is mandated to be concluded. The order at P-8 is only in the context of the right of the accused to seek bail. The reliance by the trial Court on AG Vs. Shiv Kumar Yadav's case ( supra ) and Nisar Khan's case ( supra ) is also misplaced in the facts of the present cases. In the first case, the trial was for offence of rape and the defence was seeking the recall of all the prosecution witnesses amounting almost to a denovo trial without any regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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