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Saturday, August 27, 2016

“magnanimous approach” = Sections 147/ 148/ 149/ 452/ 302/ 307/ 436/ 323/ 332/ 353/ 427/ 114/ 201/ 120B/ 34/ 325/ 381 & 382 IPC.=single Judge in exercise of the power under Section 482 of the Code of Criminal Procedure (for short “CrPC”) has annulled the order of the learned First Additional Sessions Judge, Gurgaon passed on 16.12.2015 wherein he had rejected the prayer of the accused persons seeking recall of the witnesses under Section 311 read with Section 231(2) CrPC. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS.  805-806  OF 2016
                   (@ S.L.P. (Crl.) Nos. 3278-79 of 2016)




State of Haryana                        …Appellant(s)

                                Versus



Ram Mehar & Others Etc. Etc.      …Respondent(s)



                               J U D G M E N T



Dipak Misra, J.



      Present appeals, by special leave, assail the order  dated  09.03.2016
passed by the High Court of Punjab and Haryana at Chandigarh  in  CRM-M  No.
482 of 2016 and CRM-M No. 484 of 2016 whereby the learned  single  Judge  in
exercise of the power under Section 482 of the Code  of  Criminal  Procedure
(for short “CrPC”) has annulled the order of the  learned  First  Additional
Sessions Judge, Gurgaon passed on 16.12.2015 wherein  he  had  rejected  the
prayer of the accused persons seeking recall of the witnesses under  Section
311 read with Section 231(2) CrPC.
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 to control the  situation  were  assaulted
by the workers and they were obstructed from  going  upstairs  to  save  the
officials. Despite the obstruction, the officials were saved by  the  police
and the fire was brought  under  control  by  the  fire  brigade.    In  the
incident where chaos was the sovereign, Mr.  Avnish  Dev,  General  Manager,
Human Resources of the Company was burnt alive.   The  said  occurrence  led
to lodging of FIR No. 184/2012 at Police Station Manesar.  After  completion
of the investigation, the police filed charge sheet against 148  workers  in
respect of various offences before  the  competent  court  which,  in  turn,
committed the matter to the court of session and during  trial  the  accused
persons were charged for the offences punishable under  Sections  147/  148/
149/ 452/ 302/ 307/ 436/ 323/ 332/ 353/ 427/ 114/ 201/ 120B/ 34/ 325/ 381  &
382 IPC.

3.    The evidence of the prosecution commenced  in  August,  2013  and  was
concluded on 02.03.2015. Recording of  statements  of  the  accused  persons
under Section 313 CrPC was concluded by 13.04.2015.   After  the  statements
under Section 313 CrPC were recorded, the defence adduced  its  evidence  by
examining number of witnesses.  Be it noted, when an  application  for  bail
was filed before the trial court and it was rejected upto  the  High  Court,
some accused persons moved this  Court  by  filing  Special  Leave  Petition
(Criminal) Nos.  9881-9882 of  2013  and  this  Court  on
17.02.2014 passed the following order:-
“On 3.2.2014, this Court had directed learned counsel  for   the   State  of
Haryana to inform the Court as to how many witnesses,  the  State   proposes
to examine and approximately how much time  it  will   take.    Mr.   K.T.S.
Tulsi, learned senior  counsel  appearing  on  behalf  of  the  State,   has
informed  the Court that  as   of   today,   the   prosecution   wishes   to
examine  total  186 witnesses,  out   of   which   92   are   eye-witnesses.
However,  as  presently advised, the prosecution wants to  examine  only  23
eye  witnesses.   Two  of the eye witnesses have  already   been   examined.
Therefore,  21  more  eye-witnesses have to  be  examined.    In   view   of
this  statement,  we  do   not  propose  to  pass  any  order  on  the  bail
application filed by the  petitioner. We feel that it would  be  appropriate
to  give  directions  to  the  learned Sessions  Judge  to  dispose  of  the
trial as  expeditiously  as  possible.   We are informed that  in  a  month,
only one or  two  days  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 CrPC were  recorded  and  thereafter  the  defence
examined fifteen witnesses.

5.    When the matter stood thus,  on  30.11.2015,  two  petitions     under
Section 311 CrPC were filed by different  accused  persons.   In  the  first
petition filed by Ram Mehar and others, recall was sought of  Vikram  Verma,
PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad,  PW-
5, Salil Bihari Lal, PW-8, Vikram Sarin, PW-10, Deepak Anand, PW-29 and  DSP
Om Prakash, PW-99. In respect of Deepak Anand, PW-29, it was stated that  he
was required to be recalled to establish that he is not a reliable  witness.
  As regards Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar  Roy,
PW-3, Birendra Prasad, PW-5, Salil Bihari Lal, PW-8 and  Vikram  Sarin,  PW-
10, it was averred that they are required to be recalled in order  to  prove
the manner and circumstances pertaining to  how  the  incident  took  place.
That apart, it was  stated,  certain  important  questions  and  suggestions
pertaining to the injuries received by the  prosecution  witness  and  other
persons were also required to be put  to  them.    With  regard  to  DSP  Om
Prakash, PW-99, it was asserted that  recalling  of  the  said  witness  was
required to enable the accused persons to put forth certain aspects  of  the
investigation, particularly with regard to the  type  of  weapons  used  and
injuries  allegedly  caused  to  various  prosecution  witnesses  and  other
persons. We think it appropriate to reproduce what further has  been  stated
in the application:-
“6. That the cross-examination proposed to  be  undertaken  by  the  defence
will be limited to the aspect of injuries sustained by  different  witnesses
and other  persons,  as  well  as  the  weapons  of  offence  used,  besides
suggestions that specifically  refute  the  sequence  of  events  and  roles
ascribed to the accused etc.
7. That the accused persons undertake to conclude the  cross-examination  of
these witnesses on the dates on which they appear, or such further dates  as
decided by this Hon’ble Court.
8. That it may be worthwhile to mention here that due to the nature  of  the
case and the lack of individual representation to the 148  accused  persons,
much of the cross-examination was composite in nature and  in  the  process,
certain  important  questions  and  suggestions  with   respect   to   their
individual roles and allegations, could not be  satisfactorily  put  to  the
prosecution witnesses in question.


9. That the trial was essentially conducted by  Sh.  R.S.  Hooda,  Advocate,
who was suffering from a critical  illness  throughout  the  trial,  and  on
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 CrPC.
7.    In the second  application  filed  by  Kishan  Kumar  and  others  for
recalling of witnesses, namely, Shobhit Mittal, PW-7,  Rajeev  Kaul,  PW-14,
Sri Niwasan, PW-22 and Umakanta T.S., PW-28, the assertions were almost  the
same apart from  some  additional  ground  which  we  think  appropriate  to
reproduce:-
“7. That the trial was essentially conducted by Sh. R. S.  Hooda,  Advocate,
who was suffering from a critical  illness  throughout  the  trial,  and  on
numerous occasions, despite his valiant efforts 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  occasions  to
examine the record,  and  are  therefore,  desirous  of  correcting  certain
inadvertent errors that may have crept into the defence of the accused.
8. 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.
9. 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  of
filing up of any lacuna in the defence.”


8.    The learned trial Judge noted the contentions advanced by the  learned
counsel for the defence and the prosecution and observed that:-
“7.  The present application has been moved at a very  belated  stage  at  a
time when 102 prosecution witnesses have already been examined  during  this
trial in which larger number of 148 accused are involved and they have  been
examined way back as prosecution evidence was  concluded  on  2.3.15.   Long
time was consumed for recording the statements of the accused under  section
313 Cr.P.C. and for the last  more  than  six  months,  the  case  is  being
adjourned for recording the defence evidence and in this  regard  number  of
opportunities have been availed by the  defence  and  15  defence  witnesses
have been examined so far.   At  this  juncture  it  may  be  recalled  that
Hon’ble  Supreme  Court  has  directed  this  court  to  decide  this  trial
expeditiously.
      x     x    x     x     x    x     x
9.    Nothing has been explained as to what are the left out  questions  and
how the questions already put to the said witnesses created inroad into  the
defence of the said accused.  In para 3 of the  application,  it  is  stated
that the manner and circumstances as to how  the  incident  took  place  and
further the questions pertaining to weapons used and  the  injuries  to  the
said witnesses 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  accused
does not mean that this principle is to be  applied  in  favour  of  accused
alone but this concept will take in its fold the fairness of  trial  to  the
victim as well as to  the  society.   The  court  being  neutral  agency  is
expected to be fair to both the parties and its duty is also to ensure  that
the process of law is not abused by either of them for  extraneous  reasons.
The speedy trial is essence of justice but such like applications  like  the
present one should not come in the way of delivery  of  doing  complete  and
expeditious justice to both the parties.”

9.    After so stating, the learned trial Judge referred to the  authorities
in Hoffman Andreas v. Inspector of Customs Amritsar[1], P.  Chhaganlal  Daga
v. M. Sanjay Shaw[2],  P.  Sanjeeva  Rao  v.  State  of  Andhra  Pradesh[3],
Natasha Singh v. Central Bureau of Investigation (State)[4]  and State  (NCT
of Delhi) v. Shiv Kumar Yadav and another[5]  and came  to  hold  that  when
the material  questions  had  already  been  put,  there  was  no  point  to
entertain the application and mere  change  of  the  counsel  could  not  be
considered as a ground to allow the application for recalling the  witnesses
for the purpose of further cross-examination.  It is  worthy  to  note  that
two separate orders were passed by the  trial  court  but  the  analysis  is
almost the same.

10.   Dissatisfied with the aforesaid orders, the accused persons  preferred
CRM-M No. 482 of 2016 and CRM-M No. 484 of 2016 before the High Court  under
Section 482 CrPC. The High Court took note of the  common  ground  that  the
leading counsel for the defence 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   accused
persons, the injuries sustained by the witnesses, as  well  as  the  alleged
weapons of offence used, had not been put to the said  witnesses.   It  also
took note of the fact that the senior lawyer had been engaged at  the  final
stage and such inadvertent errors were discovered by him and they needed  to
be rectified in order to have a meaningful defence and a fair trial.

11.   The High Court thereafter adverted to the contentions  raised  by  the
learned counsel  for  the  petitioners  therein,  analysed  the  grounds  of
rejection that formed the bedrock of the order passed by  the  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  IPC,  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 IPC and recalling is not for the purpose of  setting  up  a  new
case or make the witnesses 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 trial courts at times tend  to
reject the raised defence on behalf of the accused.  It  was  observed  that
some of such omissions and suggestions  by  way  of  illustration  had  been
spelt out in the body of the petitions  and  some  had  been  stated  to  be
withheld for avoiding any prejudice to the defence, nevertheless the  stated
purpose was not to render the prosecution witnesses hostile to the  case  of
prosecution  and,  therefore,  such  inadvertent  omissions  and   lack   of
suggestions deserve 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, more so  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.  Thereafter, what the High Court  expressed  is
seemly to reproduce:-
“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  is  conceived  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
v. State case, (2006) 9 SCC 386, 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 regard to the harassment and plight  of
the young victim. In the latter case,  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  CrPC
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 CrPC despite its width and broad compass  can  only
be made applicable keeping in view the factual score of the case and not  to
be entertained in a routine manner.  It is  his  contention  that  the  High
Court has been wholly misguided by the idea of fair trial  and  the  concept
of magnanimity of the court without really remaining alive  to  the  factual
matrix of the case at hand.   The  concept  of  “fair  trial”,  submits  Mr.
Mehta, cannot be stretched too far  to  engulf  situations  which  the  said
conception really does not envisage.  Additionally, it  is  argued  by  him,
neither the plea taken with regard to illness of  earlier  counsel  nor  the
accused persons being in  custody  can  constitute  legitimate  grounds  for
exercise of jurisdiction under Section 311 CrPC.

15.   Mr. R.S. Cheema, learned senior counsel along with  Mr.  Sanjay  Jain,
learned counsel appearing for the respondents in  his  turn  has  emphasized
basically on four aspects, namely, a fair trial is a facet of Article 21  of
the Constitution and the principles  of  its  applicability  should  not  be
marginalized; that Section 311 CrPC confers enormous  powers  on  the  court
for grant of permission for recalling of witnesses so that in  the  ultimate
eventuality justice is done and injustice in any form  is  avoided  and  for
the said purpose, the stage of the trial may be an aspect to be  taken  into
consideration in certain cases but cannot be regarded as the sole  governing
factor to deny the prayer for recall; that  when  the  prayer  was  confined
for recalling of small number of witnesses because of  critical  illness  of
the defence counsel who was not in a position to put all relevant  questions
to the accused persons, there was no justification  to refuse the prayer  of
recall of witnesses; and that  when  the  accused  persons  are  already  in
custody  the  question  of  prolonging  and  procrastinating  the  trial  by
adopting dilatory  tactics does not arise.   Learned  senior  counsel  would
further submit that the High  Court  has  passed  a  guided  order  and  the
accused persons are bound by it and they do not intend to take more  than  a
day or two for the purpose of further cross examination and thus,  there  is
no warrant on the part of this Court in exercise of power under Article  136
of the Constitution of India to interfere with the impugn order.

16.   Before we advert to the ambit and scope of Section 311  CrPC  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 another v. Rani  Jethmalani[6],   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 hyperscnahivity 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  this  touchstone
bearing in mind the rule that normally the  complainant  has  the  right  to
choose any court having jurisdiction and the accused  cannot  dictate  when-
the case against him should be  tried.  Even  so,  the  process  of  justice
should not harass the parties and from that angle the court  may  weigh  the
circumstances.”


18.   The aforesaid principle has been stated in the context of transfer  of
a case but the Court has laid emphasis on assurance of  fair  trial.  It  is
worthy to note that in the said case, the Court  declined  to  transfer  the
case and directed the Magistrate to  take  measures  to  enforce  conditions
where the court functions free and fair and agitational  or  muscle  tactics
yield no dividends. However, liberty was granted to  the  appellant  therein
to renew prayer under Section 406 CrPC. Stress was laid  on  tranquil  court
justice.  It was  also  observed  that  when  the  said  concept  becomes  a
casualty there is collapse of our constitutional order.

19.   In Ram Chander v.  State  of  Haryana[7],  while  speaking  about  the
presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if  a
criminal court is to be an effective instrument in dispensing  justice,  the
presiding judge must cease to be a spectator and a mere  recording  machine.
He must become a participant in the trial  by  evincing  intelligent  active
interest by putting questions to witnesses in order to ascertain the  truth.
 The learned Judge reproduced a passage  from  Sessions  Judge,  Nellore  v.
Intha Ramana Reddy[8] which reads as follows:-
“Every criminal trial is a voyage of discovery in which truth is the  quest.
It is the duty of a presiding Judge to explore every avenue open to  him  in
order to discover the truth and to advance the cause of  justice.  For  that
purpose he is expressly invested by Section 165 of  the  Evidence  Act  with
the right to put questions to witnesses. Indeed the right given to  a  Judge
is so wide that he may, ask any question he pleases, in  any  form,  at  any
time, of any witness,  or  of  the  parties  about  any  fact,  relevant  or
irrelevant. Section 172(2) of the Code of  Criminal  Procedure  enables  the
court to send for the police-diaries in a case and use them  to  aid  it  in
the trial. The record of the proceedings of the  Committing  Magistrate  may
also be perused by the Sessions Judge to further aid him in the trial.”


20.   While saying so, 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 others v. State of Madhya Pradesh[9] 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[10]  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 cause acute suffering and anguish to the  victim  of
the offence. In many  cases  the  victim  may  suffer  even  more  than  the
accused. There is, therefore, no reason to give all the benefits on  account
of the delay in trial to the accused and to completely deny all  justice  to
the victim of the offence.”
                                                         (Emphasis supplied)

61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah  v.
Meenakshi Marwah[11] (SCC p. 387, para 24) though in  a  different  context,
had also observed that delay in the prosecution of a guilty person comes  to
his advantage as  witnesses  become  reluctant  to  give  evidence  and  the
evidence gets lost.

62. We have referred to the aforesaid authorities to illumine and  elucidate
that the  delay  in  conclusion  of  trial  has  a  direct  nexus  with  the
collective cry of the society and  the  anguish  and  agony  of  an  accused
(quaere a  victim).  Decidedly,  there  has  to  be  a  fair  trial  and  no
miscarriage of justice and  under  no  circumstances,  prejudice  should  be
caused to the accused but, a pregnant one, every procedural lapse  or  every
interdict that has been acceded to  and  not  objected  at  the  appropriate
stage would not get the trial dented or make it unfair. Treating  it  to  be
unfair would amount to  an  undesirable  state  of  pink  of  perfection  in
procedure. An absolute apple-pie order in carrying out  the  adjective  law,
would only be sound and fury signifying nothing.

      x          x           x          x          x

64. Be it noted, one cannot afford to treat the victim  as  an  alien  or  a
total stranger to the criminal trial. The criminal jurisprudence,  with  the
passage of time, has laid emphasis on victimology which fundamentally  is  a
perception of a trial from the viewpoint of the  criminal  as  well  as  the
victim. Both are viewed in the social context. The view  of  the  victim  is
given due regard and respect in certain countries.  In  respect  of  certain
offences in our  existing  criminal  jurisprudence,  the  testimony  of  the
victim is given paramount importance. Sometimes it is perceived that  it  is
the duty of the court to  see  that  the  victim’s  right  is  protected.  A
direction for retrial is to put the clock back and it would  be  a  travesty
of justice to so direct if the trial really has not been  unfair  and  there
has been no miscarriage of justice or failure of justice.”


 22.  In J. Jayalalithaa and others v. State of Karnataka and others[12]  it
has been ruled that fair 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  convict  the  guilty  and
protect the innocent, the trial should be a search for  the  truth  and  not
about over technicalities and must be conducted under  such  rules  as  will
protect the innocent and punish the guilty. Justice should not only be  done
but should be seem to have been done. Therefore, free and fair  trial  is  a
sine qua non of Article 21 of the Constitution. Right to get  a  fair  trial
is not only a basic fundamental right but a  human  right  also.  Therefore,
any hindrance in a fair trial could  be  violative  of  Article  14  of  the
Constitution. “No trial can be allowed to prolong indefinitely  due  to  the
lethargy of the prosecuting agency or the State machinery and  that  is  the
raison d’être in prescribing the time frame” for conclusion of the trial.”

23.   In Bablu Kumar and others v. State of Bihar and another[13] the  Court
referred to the authorities in  Sidhartha  Vashisht  alias  Manu  Sharma  v.
State (NCT of Delhi)[14], Rattiram (supra), J. Jayalalithaa  (supra),  State
of Karnataka v. K. Yarappa Reddy[15] and other decisions and  came  to  hold
that keeping in view the concept  of  fair  trial,  the  obligation  of  the
prosecution, the interest of the community and the duty  of  the  court,  it
can irrefragably be stated that the court cannot be a silent spectator or  a
mute observer when it presides over a trial. It is the duty of the court  to
see that neither the prosecution nor  the  accused  play  truancy  with  the
criminal trial or corrode  the  sanctity  of  the  proceeding.  They  cannot
expropriate or hijack the community interest  by  conducting  themselves  in
such a manner as a consequence of which the trial becomes  a  farcical  one.
It has been further stated  that  the  law  does  not  countenance  a  “mock
trial”. It is a serious concern of society. Every member of  the  collective
has an inherent interest in such a trial. No one can be allowed to create  a
dent in  the  same.  The  court  is  duty-bound  to  see  that  neither  the
prosecution nor the defence takes  unnecessary  adjournments  and  take  the
trial under their control.  We may note with profit though the  context  was
different, yet the message is writ large.  The message is  –  all  kinds  of
individual notions of fair trial have no room.

24.   The decisions of this court when analysed  appositely  clearly  convey
that the concept of the fair trial is not in the realm of  abstraction.   It
is not a vague idea.  It is a concrete 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 play a pivotal role.  The centripodal purpose is to see  that  injustice
is avoided when the trial is conducted.  Simultaneously the concept of  fair
trial cannot be allowed to such an extent so  that  the  systemic  order  of
conducting  a  trial  in  accordance  with  CrPC  or  other  enactments  get
mortgaged to the whims and fancies of the defence or the  prosecution.   The
command of the Code cannot be thrown to winds.  In such  situation,  as  has
been laid down in many  an  authority,  the  courts  have  significantly  an
eminent role.  A plea of fairness cannot be utilized  to  build  Castles  in
Spain or permitted to perceive a bright  moon  in  a  sunny  afternoon.   It
cannot be acquiesced to create an organic disorder in the system. It  cannot
be acceded to manure a fertile mind to usher in the nemesis of  the  concept
of trial as such.  From the aforesaid it may not be understood that  it  has
been impliedly stated that the fair trial should not  be  kept  on  its  own
pedestal.  It ought to remain in its  desired  height  but  as  far  as  its
applicability is concerned, the party invoking it has to establish with  the
support of established principles.  Be it stated when  the  process  of  the
court is abused in the name of fair trial at the drop of  a  hat,  there  is
miscarriage of justice.  And, justice,  the  queen  of  all  virtues,  sheds
tears.  That is not unthinkable and we have no hesitation in saying so.

25.   Having dwelled upon the concept of fair trial we may  now  proceed  to
the principles laid down in the precedents of this Court,  applicability  of
the same to a fact situation and duty of the court under Section  311  CrPC.
 The said provision reads as follows:-
“311. Power to summon material  witness,  or  examine  person  present.  Any
Court may, at any stage of any inquiry,  trial  or  other  proceeding  under
this Code, summon any  person  as  a  witness,  or  examine  any  person  in
attendance, though not summoned as a witness, or recall and  re-examine  any
person already examined; and the Court shall summon and  examine  or  recall
and re- examine any such  person  if  his  evidence  appears  to  it  to  be
essential to the just decision of the case.”

26.   A quarter of a century back, a  two-Judge  Bench  in  Mohanlal  Shamji
Soni v. Union of India and another[16] has held that:-
“Section 311 is an almost verbatim reproduction of Section 540  of  the  old
Code except for  the  insertion  of  the  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 discretion of  the  court  in  any  way.
However,  the  very  width  requires  a  corresponding  caution   that   the
discretionary power should be invoked as the exigencies of  justice  require
and exercised judicially  with  circumspection  and  consistently  with  the
provisions of the Code. The second part of the section does  not  allow  for
any discretion but it binds and  compels  the  court  to  take  any  of  the
aforementioned two steps if the fresh evidence to be obtained  is  essential
to the just decision of the case.”
                                                            [Emphasis added]

      The aforesaid passages  make  it  abundantly  clear  about  the  broad
applicability of the provision and the role of the  court  in  two  distinct
situations.

27.    In  the  said  authority  the   Court   referred   to   the   earlier
pronouncements in Rameshwar Dayal and others v. State of Uttar  Pradesh[17],
State of West Bengal v. Tulsidas Mundhra[18],  Jamatraj  Kewalji  Govani  v.
State of Maharashtra[19] and proceeded to opine that:-
“The principle of law that emerges from the views expressed  by  this  Court
in the above decisions is that the criminal court has ample power to  summon
any person as a witness or recall and re-examine any  such  person  even  if
the evidence on both sides is closed and the jurisdiction of the court  must
obviously be dictated by exigency of the situation, and fair play  and  good
sense appear to be the only safe guides and that only  the  requirements  of
justice command the examination of any person  which  would  depend  on  the
facts and circumstances of each case.”
                                                         [Emphasis supplied]


It is important to note here in the said case, it was also observed that:-
“Though Section 540 (Section  311  of  the  new  Code)  is,  in  the  widest
possible terms and calls for no limitation, either with regard to the  stage
at which the powers of the court should be exercised, or with regard to  the
manner in which they should be exercised, that  power  is  circumscribed  by
the principle that underlines Section 540, namely, evidence to  be  obtained
should appear to the court essential to a  just  decision  of  the  case  by
getting at the truth by all lawful means. Therefore, it should be  borne  in
mind that the aid of the section should be invoked only with the  object  of
discovering relevant facts or obtaining proper proof of  such  facts  for  a
just  decision  of  the  case  and  it  must  be  used  judicially  and  not
capriciously or arbitrarily because any 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[20] 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 CrPC, 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 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  be  magnanimous
in permitting such mistakes to be rectified.  After  all,  function  of  the
criminal court is administration  of  criminal  justice  and  not  to  count
errors committed by the parties or to find out and  declare  who  among  the
parties performed better.”
                                                            [Emphasis added]

After so stating the two-Judge bench  referred  to  the  exigencies  of  the
situation and the ample power of the court as  has  been  laid  in  Mohanlal
Shamji Soni (supra) and  further  referred  to  the  authority  in  Jamatraj
Kewalji Govani (supra) and opined thus:-
“We cannot therefore accept the contention  of  the  appellant  as  a  legal
proposition that the court cannot exercise power of resummoning any  witness
if once that power was exercised, nor can the power be whittled down  merely
on the ground that the prosecution discovered laches only when  the  defence
highlighted them during final arguments. The power of the court  is  plenary
to summon or even recall any witness at any stage of the case if  the  court
considers it necessary for a just decision. The steps which the trial  court
permitted in this case for resummoning certain  witnesses  cannot  therefore
be spurned down or frowned at.”
                                                         [Emphasis supplied]


29.   The  aforesaid  decision  has  to  be  appropriately  understood.   It
reiterates the principle stated in Mohanlal  Shamji  Soni’s  case.   It  has
only explained the sphere of lacuna by elaborating the same which has  taken
place due to oversight  and  non-production  of  material  evidence  due  to
inadvertence.  It is significant to note that it  has  also  reiterated  the
principle that such evidence is necessary for a just decision by the  Court.


30.   In U.T. of Dadra & Nagar Haveli and  another  v.  Fatehsinh  Mohansinh
Chauhan[21], the Court was dealing with an order passed by  the  High  court
whereby it had allowed the revision and set aside the order  passed  by  the
learned trial judge who had exercised the power under Section  311  CrPC  to
summon certain witnesses.  The Court referred  to  the  earlier  authorities
and ruled that it is well settled that the exercise of power  under  Section
311 CrPC 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 another[22],  the  Court
after referring to Section 311 CrPC and Section  138  of  the  Evidence  Act
observed that Section 311 CrPC vest widest  powers  in  the  court  when  it
comes to the issue of summoning a witness or to  recall  or  re-examine  any
witness  already  examined.   Analysing  further  with  regard  to  “trial”,
“proceeding”, “person already examined”, the Court ruled that invocation  of
Section 311 CrPC and its application in a particular case can be ordered  by
the court, only by bearing in mind  the  object  and  purport  of  the  said
provision, namely, for achieving a just decision  of  the  case.  The  Court
observed that the power vested under the said provision  is  made  available
to any court at any stage in  any  inquiry  or  trial  or  other  proceeding
initiated under the Code for the  purpose  of  summoning  any  person  as  a
witness or for examining any person in attendance, even though not  summoned
as witness or to recall or re-examine any person already  examined.  Insofar
as  recalling  and  re-examination  of  any  person  already   examined   is
concerned, the court must necessarily consider and ensure that  such  recall
and re-examination of any person, appears in the view of  the  court  to  be
essential for the just decision of the case.   The  learned  Judges  further
ruled that the paramount requirement is just decision and for  that  purpose
the essentiality of a person to  be  recalled  and  re-examined  has  to  be
ascertained.  It was also stated that while such a widest power is  invested
with the court, exercise of such power should be made  judicially  and  also
with extreme care and caution.

32.   The Court referred to the earlier decisions  and  culled  out  certain
principles which are to  be  kept  in  mind  while  exercising  power  under
Section 311 CrPC.  We think it seemly to reproduce some of them:-
“17.2. The exercise of the widest  discretionary  power  under  Section  311
CrPC 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  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 CrPC  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.

                              x     x     x    x     x     x    x     x    x

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  afford  an
opportunity to them in the  fairest  manner  possible.  In  that  parity  of
reasoning, it would be safe to err in  favour  of  the  accused  getting  an
opportunity  rather  than  protecting  the  prosecution   against   possible
prejudice at the cost of the accused. The court should  bear  in  mind  that
improper or capricious exercise of such a discretionary power, may  lead  to
undesirable results.

               x     x     x    x     x     x    x     x    x

17.14. The power under Section 311 CrPC must therefore, be  invoked  by  the
court only in order to meet  the  ends  of  justice  for  strong  and  valid
reasons  and  the  same  must  be   exercised   with   care,   caution   and
circumspection. The court should bear in mind that fair  trial  entails  the
interest of the accused, the victim and  the  society  and,  therefore,  the
grant of fair and proper opportunities to the  persons  concerned,  must  be
ensured being a constitutional goal, as well as a human right.”
                                                         [Emphasis supplied]


33.   Recently in  Shiv  Kumar  Yadav  (supra),  the  Court  reproduced  the
principles  culled  out  in  Rajaram  Prasad  Yadav’s  case  and  thereafter
referred to the authority in Hoffman Andreas (supra)  wherein  it  has  been
laid down that:-
“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 in Section 311 of the Code. After all  the
trial  is  basically  for  the  prisoners  and  courts  should  afford   the
opportunity to them in the fairest manner possible”.

      The Court  in  Shiv  Kumar  Yadav  (supra)  case  explained  the  said
authority by opining thus:-
“15. …..While advancement of justice remains the prime  object  of  law,  it
cannot be understood that recall can be allowed for the  asking  or  reasons
related to mere convenience.  It  has  normally  to  be  presumed  that  the
counsel conducting a case  is  competent  particularly  when  a  counsel  is
appointed 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  apart,  it  has  been  urged  that  certain
suggestions could not be given. The marrow of the  grounds  relates  to  the
illness of the counsel.  It needs to be stated that the learned trial  Judge
who had the occasion to  observe  the  conduct  of  the  witnesses  and  the
proceedings in the trial, has clearly held that recalling of  the  witnesses
were not necessary for just decision of the case.  The  High  Court,  as  we
notice, has referred to certain authorities and distinguished  the  decision
in Shiv Kumar Yadav (supra) and Fatehsinh Mohansinh  Chauhan  (supra).   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
CrPC.  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.
35.   The heart of the matter is whether the reasons ascribed  by  the  High
Court are germane for  exercise  of  power  under  Section  311  CrPC.   The
criminal trial is required to proceed in accordance with Section 309 of  the
CrPC. This court in Vinod Kumar v. State of Punjab[23], while  dealing  with
delay in examination and cross-examination was compelled to observe thus:-
“If one is asked a question, what afflicts the  legally  requisite  criminal
trial in its conceptual eventuality in this country  the  two  reasons  that
may earn the status of phenomenal signification are, first,  procrastination
of trial due to non-availability of witnesses when the trial is in  progress
and second, unwarranted adjournments sought by the  counsel  conducting  the
trial and the unfathomable reasons  for  acceptation  of  such  prayers  for
adjournments by the trial courts, despite a statutory command under  Section
309  of  the  Code  of  Criminal  Procedure,  1973  (CrPC)  and  series   of
pronouncements by this Court. What was  a  malady  at  one  time,  with  the
efflux  of  time,  has  metamorphosed  into  malignancy.  What  was  a  mere
disturbance once has become a disorder, a diseased one, at present”.

      And again:-
“The duty of the court is to see that not only the interest of  the  accused
as per law is protected but also the societal  and  collective  interest  is
safeguarded. It is distressing to note that despite series 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[24],  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 sincerity. An advocate cannot afford to bring any kind of  disrespect
to fairness of trial by taking recourse to subterfuges  for  procrastinating
the same.”

37.    There  is  a  definite  purpose  in  referring   to   the   aforesaid
authorities.  We are absolutely conscious about the factual  matrix  in  the
said cases.  The observations were made in the context where examination-in-
chief was deferred for quite a long time and the  procrastination  ruled  as
the Monarch.  Our reference to the said authorities should not be  construed
to mean that Section 311 CrPC should not be allowed to have its  full  play.
But,  a  prominent  one,  the  courts  cannot  ignore  the  factual   score.
Recalling of witnesses as envisaged under the said  statutory  provision  on
the grounds that  accused  persons  are  in  custody,  the  prosecution  was
allowed to recall some of its witnesses earlier, the  counsel  was  ill  and
magnanimity commands fairness should be shown, we  are  inclined  to  think,
are not acceptable in the obtaining factual  matrix.   The  decisions  which
have used the words that the court should be magnanimous, needless  to  give
special  emphasis,  did  not  mean  to  convey  individual   generosity   or
magnanimity which is founded on any kind of fanciful notion.  It has  to  be
applied on the basis of  judicially  established  and  accepted  principles.
The approach may be liberal but that does not necessarily mean “the  liberal
approach”  shall  be  the  rule  and  all  other  parameters  shall   become
exceptions.   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
CrPC.  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  the  case
or to arrive at the truth.  The singular ground which prominently  comes  to
surface is that the earlier counsel who was engaged by the defence  had  not
put some questions and  failed  to  put  some  questions  and  give  certain
suggestions.  It has come on record that number of 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 CrPC 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 the exercise of  power
under  Section  311  CrPC  can  be  sought  to  be  invoked  either  by  the
prosecution or by the accused persons or by  the  Court  itself.   The  High
Court has been moved by the ground that  the  accused  persons  are  in  the
custody and the concept of speedy trial is not nullified  and  no  prejudice
is caused, and,  therefore,  the  principle  of  magnanimity  should  apply.
Suffice it to say, a criminal trial does not singularly centres  around  the
accused.  In it there is involvement of the prosecution, the victim and  the
victim represents the collective.  The cry of  the  collective  may  not  be
uttered in decibels which is physically audible in the court  premises,  but
the Court has to remain sensitive to such silent cries and the agonies,  for
the society seeks justice.  Therefore, a balance has to be struck.  We  have
already explained the use of the words “magnanimous  approach”  and  how  it
should be understood.  Regard being had  to  the  concept  of  balance,  and
weighing the factual score on the scale of balance, we are of the  convinced
opinion that the High Court has fallen into  absolute  error  in  axing  the
order passed by the learned trial Judge.  If  we  allow  ourselves  to  say,
when  the  concept  of  fair  trial  is  limitlessly  stretched,  having  no
boundaries, the orders like the  present  one  may  fall  in  the  arena  of
sanctuary of errors.  Hence, we  reiterate  the  necessity  of  doctrine  of
balance.

39.   In view of the proceeded analysis we allow the appeals, set aside  the
order passed by the High Court and restore that of the learned trial  Judge.
 We direct the learned trial judge to proceed with the trial  in  accordance
with the law.




                                                                 …………………….J.
                                                               [Dipak Misra]



                                                                 …………………….J.
                                                          [Uday Umesh Lalit]

New Delhi
August 24, 2016





-----------------------
[1]    (2000) 10 SCC 430
[2]    (2003) 11 SCC 486
[3]    (2012) 7 SCC 56
[4]    (2013) 5 SCC 741
[5]    (2016) 2 SCC 402
[6]    (1979) 4 SCC 167
[7]    (1981) 3 SCC 191
[8]    1972 Cri LJ 1485
[9]    (2012) 4 SCC 516
[10]   (2009) 17 SCC 303
[11]   (2005) 4 SCC 370
[12]   (2014) 2 SCC 401
[13]   (2015) 8 SCC 787
[14]   (2010) 6 SCC 1
[15]   (1999) 8 SCC 715
[16]   AIR 1991 SC 1346
[17]   (1978) 2 SCC 518
[18]   (1963) 2 SCJ 204
[19]   AIR 1968 SC 178
[20]   (1999) 6 SCC 110
[21]   (2006) 7 SCC 529
[22]   (2013) 14 SCC 461
[23]    (2015) 3 SCC 220
[24]    (2013) 7 SCC 108


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