Sunday 4 September 2016

Rights of accused to recall witness Vs rights of victim and witness



18.Section 311 Cr.P.C. is in two parts. It's 1st part is discretionary in
nature. However, its second part is mandatory in nature. If the Court finds
that it is just and necessary that the evidence have to be produced before
the Court then it has to be done. It may be also through the cross-
examination of witness, also has been already examined in chief.

19.A Court cannot forget victims of crime, the duty of the State and the
interest of the State to prosecute the offenders. The victims have suffered
already at the hands of the accused. Their agony prolongs during the trial
also. Harassing of witnesses under the pretext of cross examination has
become order of the day. In certain circumstances, during the trial,
practically victims suffers more than the accused. When the victims/witnesses
attend the Court they must be treated as guest, as they have come to assist
the Court to render correct finding on a disputed facts. Making the witnesses
to wait till the close of the day and asking them to come on some other day
for their examination has become a routine ordeal in the trial Courts.
Sometimes, the accused employ some tricks to dilute or efface the evidence
already recorded, either by bargaining or browbeating the witnesses. In one
way or other the witnesses are being gained over. Major gain is to the
accused. Net result is failure of justice and collapsing of the trial.

20.In this scenario, in VINOD KUMAR (supra) the Hon'ble Supreme Court 
expressed its anguish on this appalling situation prevailing in the trial
Courts and advised them to discourage indiscriminate and indefinite deferring
of the cross examination of the witnesses and also adjourning of the cases
for no reason or for flimsy reasons. But, in VINOD KUMAR (supra) the Hon'ble
Supreme Court did not say never recall any witness for his cross examination,
whatever might be the reason. Referring to Section 309 Cr.P.C. the Hon'ble
Supreme Court, advised the trial Courts to avoid unnecessary adjournments and
try to finish the cross-examination of the witnesses on the same day or
atleast on the next day. Thus VINOD KUMAR (supra) cannot be used to turn the 
table even when there is a genuine case for recalling the witnesses for
cross-examination.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 22.08.2016  

CORAM   
THE HONOURABLE DR.JUSTICE P.DEVADASS            

Crl.O.P.(MD) Nos.14889 of 2016 and 15234 of 2016  

Vincent                                            ... Petitioner/A1 in
Crl.O.P.(MD) No.                                                                                14889 
of 2016
Sikanthar Mohideen                                 ... Petitioner/A2 in
Crl.O.P.(MD) No.                                                                                15234 
of 2016

-vs-


The State represented by
The Inspector of Police,


   
        As these two petitions are connected on factual matrix and legal
issues, they are tagged together, heard together and are being disposed of by
this common order. 

        2.In the Court of Special Judge under Prevention of Corruption Act,
Tirunelveli in Spl.C.C.No.57 of 2014, A1/Vincent/petitioner in Crl.O.P.(MD)
No.14889 of 2016 and A2/Sikinthar Mohideen/petitioner in Crl.O.P.(MD)
No.15234 of 2016 are being prosecuted for offence under Sections 7 and 13(2)
r/w 13(1)(D) of the Prevention of Corruption Act, 1988.

        3.In this case, charges were framed. Recording of prosecution evidence
is going on. So far 9 prosecution witnesses were examined.

        4.On 17.02.2016, P.W.5, an Assistant Engineer in the Tamilnadu 
Electricity Board has been examined to speak about his accompanying the 
defacto complainant to the place where trap is to be conducted. So, P.W.5 is
a trap operation witness.
        5.Both A1 and A2, have not cross-examined P.W.5. Subsequently, each   
have filed separate petitions in Crl.M.P.(MD) Nos.267 and 268 of 2016, before
the learned Special Judge for recalling P.W.5 for their cross-examination. It
was opposed to by the prosecution.

        6.The learned Special Judge, mainly referring to VINOD KUMAR V. STATE   
OF PUNJAB [(2015) 1 MLJ (Crl.) 288 (SC)], dismissed their petitions. That is
how A1 and A2 are before us. 

        7.The learned counsel for the petitioners submitted that in VINOD KUMAR
(supra), the Hon'ble Supreme Court did not say that recalling of witness
shall not be permitted at all . The trial Court misunderstood VINOD KUMAR
(supra).

        8.The learned counsel for the petitioners further submitted that under
Section 311 Cr.P.C. power has been given to the Court to recall a witness,
who has been already examined or to summon a fresh witness. It is intended to
bring forth relevant evidence to the notice of the Court to enable it to
render a correct finding. When it is essential to recall, the Court is bound
to recall it.
        9.The learned counsel for the petitioners further submitted that the
Court cannot foreclose the constitutional right of the accused to defend
himself effectively, which is part and parcel of concept of fair trial.
Merely citing VINOD KUMAR (supra), the trial Court ought not to have denied
them opportunity to test the veracity of the evidence of P.W.5 by cross-
examining them. 

        10.The learned counsel for the petitioners further submitted that the
Court must consider the need, necessity in subjecting P.W.5 to cross examine
him and whether not cross-examining him will result in causing serious,
incalculable, irreparable injury to the accused and their basic right of
defence. Of course the trial Court has every right to reject such a prayer,
if an the attempt is made to fill up the lacunae. The Court must adjudicate
the reason given for recalling the witness and also consider whether it is
necessary, essential to recall him for the purpose of obtaining further
evidence through cross-examination. In this case, such an exercise has not at
all been done by the Trial Court.

        11.The learned counsel for the petitioners further submitted that in
the facts and circumstances, when incriminating evidence has been adduced by 
the prosecution through P.W.5, it becomes necessary for the accused to cross-
examine him. The trial Court has simply assumed that if P.W.5 is recalled he
will be gained over, turn hostile to prosecution case and the incriminating
evidence already recorded will be washed out. This approach and assumption of
the trial Court is not correct. The trial Court has completely overlooked the
principles governing exercise of its judicial discretion under Section 311
Cr.P.C.

        12.To drive home his point of view, the learned counsel for the
petitioners also cited the following decisions:
        (i) U.T. OF DADRA & NAGAR HAVELI V. PATESHSINH MOHANSINH CHAUHAN [2006               
(7) SCC 529].
        (ii) P.SANJEEVA RAO V. STATE OF A.P. [2012 (7) SCC 56].     
        (iii) NATASHA SINGH V. CBI [2013 (5) SCC 741].  
        (iv) VINOD KUMAR V. STATE OF PUNJAB [2015 (1) MLJ (Crl) 288 (SC)].     
        (v) STATE (NCT OF DELHI) V. SHIV KUMAR YADAV [2016 (2) SCC 402].       
        (vi) SURESH 2 DHANASEKAR V. THE STATE REP. BY INSPECTOR OF POLICE,              
SULUR POLICE STATION, COIMBATORE DISTRICT [CRL.O.P.NO.21762 OF 2013 DATED               
02.09.2013].
        (vii) ARUMUGAM AND ANOTHER V. THE STATE REP. BY ITS STATION HOUSE              
OFFICER, VIGILANCE ANTI-CORRUPTION POLICE STATION, PUDUCHERRY [2015-1-L.W.                
(Crl.) 607].

        13.On the other hand, the learned Government Advocate (Criminal side)
submitted that rightly placing its reliance on VINOD KUMAR (supra), the trial
Court has dismissed the recall petition. Petitioners have taken their own
time and thereafter they have filed the recall petitions. No proper reason
has been given.  In such circumstances, the trial Court has rightly dismissed
their petitions to recall P.W.5.

        14.I have anxiously considered the rival submissions, perused the
impugned common  order and the decisions cited at the bar.

15.Too much insistence on the right of the accused, forgetting the plight of
the victim is not a correct approach. On the one hand there is right of
defence constitutionally guaranteed to the accused under Article 22(1) of
Constitution of India and statutorily under Section 303 Cr.P.C. On the other
hand the duty of the State to prosecute the offenders. None can be allowed to
enjoy at the cost of others. At every stage of a criminal case it must be
kept in mind. And balance has to struck to advance of justice and not
miscarriage of justice.

16.The essential function of a Court is delivery of justice. There is no
magic wand to deliver it. Contested matters have to be adjudicated on the
evidence adduced and conclusions are drawn thereon. Parties shall produce the
Court the essential and necessary evidence to assist the Court to render
justice. Evidence which is relevant shall not be held back. Evidence which is
required shall be brought forward. This is also one of the objective behind
Section 311 Cr.P.C.

17.Examination of a witness consists of his chief-examination, cross-
examination and re-examination, if the need arises. This has been envisaged
in Section 138 of the Evidence Act. Section 311 Cr.P.C. and Section 138 of
Evidence Act must be read together.

18.Section 311 Cr.P.C. is in two parts. It's 1st part is discretionary in
nature. However, its second part is mandatory in nature. If the Court finds
that it is just and necessary that the evidence have to be produced before
the Court then it has to be done. It may be also through the cross-
examination of witness, also has been already examined in chief.

19.A Court cannot forget victims of crime, the duty of the State and the
interest of the State to prosecute the offenders. The victims have suffered
already at the hands of the accused. Their agony prolongs during the trial
also. Harassing of witnesses under the pretext of cross examination has
become order of the day. In certain circumstances, during the trial,
practically victims suffers more than the accused. When the victims/witnesses
attend the Court they must be treated as guest, as they have come to assist
the Court to render correct finding on a disputed facts. Making the witnesses
to wait till the close of the day and asking them to come on some other day
for their examination has become a routine ordeal in the trial Courts.
Sometimes, the accused employ some tricks to dilute or efface the evidence
already recorded, either by bargaining or browbeating the witnesses. In one
way or other the witnesses are being gained over. Major gain is to the
accused. Net result is failure of justice and collapsing of the trial.

20.In this scenario, in VINOD KUMAR (supra) the Hon'ble Supreme Court 
expressed its anguish on this appalling situation prevailing in the trial
Courts and advised them to discourage indiscriminate and indefinite deferring
of the cross examination of the witnesses and also adjourning of the cases
for no reason or for flimsy reasons. But, in VINOD KUMAR (supra) the Hon'ble
Supreme Court did not say never recall any witness for his cross examination,
whatever might be the reason. Referring to Section 309 Cr.P.C. the Hon'ble
Supreme Court, advised the trial Courts to avoid unnecessary adjournments and
try to finish the cross-examination of the witnesses on the same day or
atleast on the next day. Thus VINOD KUMAR (supra) cannot be used to turn the 
table even when there is a genuine case for recalling the witnesses for
cross-examination.

21.Now, in this case the accused/petitioners were alleged to have committed
certain white colour offence under the Prevention of Corruption Act. It is a
trap case. P.W.5, a public servant has been examined to speak about he having
accompanied the defacto complainant and witnessed the alleged greasing of the
palms of the accused and he had also spoken in extenso in his chief
examination as to certain vital aspects of the prosecution version of the
case. If his such testimony is not tested on the altar of cross-examination
it will result in causing incalculable damage to the defence. The accused
will be greatly prejudiced.

22.There was a delay of about 3 months since P.W.5 has been examined in  
chief. In his recall petition, A1 stated that when the chief examination of
P.W.5 was over, he was advised that there are certain important documents and
they have to be ascertained and perused, so that P.W.5 could be properly
cross-examined. A2 has been defended by an elderly member of the bar aged  
about 72 years. It is to the misfortune of A2 the said counsel fell sick.
After his recovering, A2 has filed the recall petition, stating the reason.
With respect to A2 the trial Court noted that the counsel has not produced
any medical certificate. That cannot be a sole criteria to dismiss the recall
petition.

23.In (2006) 7 SCC 529 (supra), the Hon'ble Supreme Court has remarked that
the Court could be magnanimous in these matters, but at the same time it
should not be at the cost of the victim and witnesses. Magnanimity should not
become an headache for others. 
24.As regards the apprehension of the trial Court that if P.W.5 is recalled
he will prevaricate, he will turn hostile cannot be a reason to deny an
opportunity to the accused to test the veracity of incriminating evidence
adduced as against the petitioners as nobody including the trial Court, knows
what is his (P.W.5) mind and how he react when he comes to the witness box. 

25.In the facts and circumstances, this Court is of the view that it is very
much essential that the incriminating evidence of P.W.5 has to be tested
through his cross-examination by A1 and A2. Otherwise the trial Court also
will be deprived of relevant evidence. It will also result in prejudice being
caused to the accused. In the circumstances, an opportunity could have been
given to the petitioners to recall P.W.5 for their cross-examination.

26.In this view of the matter, the impugned common order passed by the
learned Special Judge under the Prevention of Corruption Act, Tirunelveli
dated 30.05.2016 in Cr.M.P.Nos.267 and 268 of 2016 in Spl.C.C.No.57 of 2014 
is set aside. The trial Court will recall P.W.5 for the cross-examination of
A1 and A2. Prosecution has every right to re-examine him, if the situation so
warrants. When 
P.W.5 is present in Court, his cross-examination shall be completed on the
same day, if not atleast on the next day. Under no circumstance, deferring of
his cross examination shall be permitted.

27.Accordingly, these petitions are disposed of.

To

1.The Special Judge under Prevention of Corruption Act,
  Tirunelveli.

2.The Government Advocate (Criminal Side) 
   Madurai Bench of Madras High Court,
   Madurai.

3.The  Inspector of Police,
  Vigilance and Anti-Corruption Wing,
  Tirunelveli..

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