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Wednesday, September 23, 2015

whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (“Cr.P.C.”) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses, having regard to the facts and circumstances of this case.= We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) 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. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel; (iiii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted. Accordingly, we allow these appeals, set aside the impugned order passed by the High Court and dismiss the application for recall. =2015 S.C. MSKLAWREPORTS

 whether recall of witnesses, at the stage when statement  of  accused  under Section 313  of  the  Code  of  Criminal  Procedure  (“Cr.P.C.”)   has  been recorded, could be allowed on the plea that  the  defence  counsel  was  not competent and had  not  effectively  cross-examined  the  witnesses,  having regard to the facts and circumstances of this case.=      

We may now sum up our reasons for disapproving the view  of  the  High
Court in the present case:

(i)   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.  They were under no handicap;

(ii)  No finding could  be  recorded  that  the  counsel  appointed  by  the
accused were incompetent particularly at back of such counsel;

(iiii)      Expeditious trial in a heinous offence  as  is  alleged  in  the
present case is in the interests of justice;

(iv)  The trial Court as well as the High Court  rejected  the  reasons  for
recall of the witnesses;

(v)   The Court has to keep in mind  not  only  the  need  for  giving  fair
opportunity to the accused but also the need for ensuring  that  the  victim
of the crime is not unduly harassed;

(vi)  Mere fact that the accused was in custody and that he will  suffer  by
the delay could be  no  consideration  for  allowing  recall  of  witnesses,
particularly at the fag end of the trial;

(vii) Mere change of counsel cannot be ground to recall the witnesses;

(viii)      There is no basis for holding that any prejudice will be  caused
to the accused unless the witnesses are recalled;

(ix)  The High Court has not rejected the reasons given by the  trial  court
nor given any justification for permitting recall of  the  witnesses  except
for making general observations that recall was necessary for ensuring  fair
trial.  This observation is contrary to the reasoning of the High  Court  in
dealing with the grounds for recall, i.e., denial  of  fair  opportunity  on
account of incompetence of earlier counsel  or  on  account  of  expeditious
proceedings;

(x)   There is neither any patent error  in  the  approach  adopted  by  the
trial court rejecting the prayer for recall nor any clear injustice if  such
prayer is not granted.

Accordingly, we allow these appeals,  set  aside  the  impugned  order
passed by the High Court and dismiss the application for recall.
=2015 S.C. MSKLAWREPORTS

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