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
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
