Wednesday, 10 May 2017

Whether court can permit recalling of witness on ground of change of counsel?

 The above observations cannot be read as laying down
any inflexible rule to routinely permit a recall on the ground
that cross-examination was not proper for reasons
attributable to a counsel. 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. 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 victims, especially so, of heinous
crimes, if they are required to repeatedly appear in court to
face cross-examination.

8. In the present case also, one of the grounds for
recalling the witness is change of counsel. It is not permissible.
Witness can not be expected to face the ordeal of appearing in
the Court repeatedly. No acceptable grounds have been made
out for recalling the witness. There is neither any perversity nor
any illegality in the order passed by the learned trial Court.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 254/2016
Dismissed on: September 5, 2016

Shri Mohd. Tariq 
V
Jaspal Singh and others 
Coram:
 Mr. Justice Rajiv Sharma, Judge
Citation: 2017 CRLJ 784HP

This petition is directed against Order dated
21.6.2016 rendered by the learned Chief Judicial Magistrate,
Shimla in Case No. 87-2 of 2012..
2. “Key facts" necessary for the adjudication of the
present petition are that FIR No. 231/2011 dated 31.10.2011
under sections 448 and 342 IPC was registered. Challan was
presented and the Court took cognizance of the offence and
summoned the accused persons. Accused were also charged.
Prosecution examined the complainant alongwith other
witnesses. Statement of Kutub Deen son of Kalamdeen was also
recorded. Petitioner filed an application under Section 311 CrPC
for recalling Kutub Deen, who was examined as PW-6, for re-

examination. According to the averments made in the
application, he has given the statement contradictory to the
statement made by him before the Court of learned District
Judge, Shimla in case titled, Himachal Pradesh Wakf Board vs.
Jaspal Singh and others, wherein he was examined as PW-2. He
has deposed that Mohd. Tariq and Mohd. Mossin were in
possession of the property as sub-tenants under the accused,
who had subletted the premises to them. However, while
appearing as PW-6 in case No. 87-2/2012, he has resiled from
his previous statement which was made by him on 19.11.2014.
He has given false statement, intentionally and deliberately,
while appearing as PW-6. Thereafter, complainant engaged
another counsel of his choice to assist the learned Public
Prosecutor and instructed him to file an application for reexamination
of the witness to confront him with his earlier
statement.
3. Application was contested by the accused.
According to the averments made in the reply, applicant has no
locus standi to file the application. Learned District Attorney
has not authorised him to file the application. PW-6 Kutub Deen
has not made any contradictory statement.
4. Kutub Deen was examined as PW-6 on 13.3.2015.
He was examined by the learned Public Prosecutor. He was,
thereafter, cross-examined on behalf of the accused. Application
has also not been signed by the learned Public Prosecutor.

Learned trial Court has rightly come to the conclusion that no
ground has been made out to recall the witness. Merely, that
the complainant has changed his counsel, can not be a ground
to recall a witness. In the application, it is not even stated that
what statement was made by him before the learned District
Judge in case titled HP Wakf Board vs. Jaspal Singh and others.
What has been stated is that he has intentionally and
deliberately led false evidence in connivance with the accused.
5. Their Lordships of the Hon'ble Supreme Court in
Rajaram Prasad Yadav v. State of Bihar reported in (2013)14
SCC 461 have explained the nature and scope of Section 311
CrPC. Their lordships have held that the power can be exercised
at any stage as per the principles laid down thereunder. The
paramount consideration should be for just decision of the case.
Their lordships have held as under:
“14. A conspicuous reading of Section 311 Cr.P.C. would show
that widest of the powers have been invested with the Courts
when it comes to the question of summoning a witness or to
recall or re-examine any witness already examined. A reading
of the provision shows that the expression “any” has been
used as a pre-fix to “court”, “inquiry”, “trial”, “other
proceeding”, “person as a witness”, “person in attendance
though not summoned as a witness”, and “person already
examined”. By using the said expression “any” as a pre-fix to
the various expressions mentioned above, it is ultimately
stated that all that was required to be satisfied by the Court
was only in relation to such evidence that appears to the
Court to be essential for the just decision of the case. Section
138 of the Evidence Act, prescribed the order of examination
of a witness in the Court. Order of re-examination is also
prescribed calling for such a witness so desired for such reexamination.
Therefore, a reading of Section 311 Cr.P.C. and
Section 138 Evidence Act, insofar as it comes to the question
of a criminal trial, the order of re-examination at the desire of
any person under Section 138, will have to necessarily be in
consonance with the prescription contained in Section 311
Cr.P.C. It is, therefore, imperative that the invocation of
Section 311 Cr.P.C. 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 as noted by us earlier. 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,
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.
Therefore, the paramount requirement is just decision and for
that purpose the essentiality of a person to be recalled and reexamined
has to be ascertained. To put it differently, while
such a widest power is invested with the Court, it is needless
to state that exercise of such power should be made judicially
and also with extreme care and caution.
17. From a conspectus consideration of the above
decisions, while dealing with an application under Section 311
Cr.P.C. read along with Section 138 of the Evidence Act, we
feel the following principles will have to be borne in mind by
the Courts:
17.1 Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence sought to be
led in under Section 311 is noted by the Court for a just
decision of a case?
17.2 The exercise of the widest discretionary power under
Section 311 Cr.P.C. should ensure that the judgment should
not be rendered on inchoate, inconclusive 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 Cr.P.C.
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.
17.6The 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.
17.8 The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.
17.9 The Court arrives at the conclusion that additional
evidence is necessary, not because it would be impossible to

pronounce the judgment without it, but because there would
be a failure of justice without such evidence being considered.
17.10 Exigency of the situation, fair play and good sense
should be the safe guard, 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.
17.12 The additional evidence must not be received as a
disguise or to change the nature of the case against any of the
party.
17.13 The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to the
issue involved and also ensure that an opportunity of rebuttal
is given to the other party.
17.14 The power under Section 311 Cr.P.C. 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.”
6. Their Lordships of the Hon'ble Supreme Court in
Mannan Shaikh v. State of W.B. reported in (2014)13 SCC 59
have held that the wide power to recall the witness is to be
exercised with circumspection and only with the object of
arriving at a just decision of the case and the same should not
prejudice the accused and should not permit to fill up the
lacuna by the prosecution. Their lordships have held as under:
“[12] The aim of every court is to discover truth. Section 311 of
the Code is one of many such provisions of the Code which
strengthen the arms of a court in its effort to ferret out the
truth by procedure sanctioned by law. It is couched in very

wide terms. It empowers the court at any stage of any inquiry,
trial or other proceedings under the Code to summon any
person as a witness or examine any person in attendance,
though not summoned as witness or recall and re-examine
already examined witness. The second part of the Section uses
the word 'shall'. It says that the court shall summon and
examine or recall or re-examine any such person if his
evidence appears to it to be essential to the just decision of the
case. The words 'essential to the just decision of the case' are
the key words. The court must form an opinion that for the
just decision of the case recall or re- examination of the
witness is necessary. Since the power is wide it's exercise has
to be done with circumspection. It is trite that wider the power
greater is the responsibility on the courts which exercise it.
The exercise of this power cannot be untrammeled and
arbitrary but must be only guided by the object of arriving at a
just decision of the case. It should not cause prejudice to the
accused. It should not permit the prosecution to fill-up the
lacuna. Whether recall of a witness is for filling-up of a lacuna
or it is for just decision of a case depends on facts and
circumstances of each case. In all cases it is likely to be
argued that the prosecution is trying to fill-up a lacuna
because the line of demarcation is thin. It is for the court to
consider all the circumstances and decide whether the prayer
for recall is genuine.”
7. Their Lordships of the Hon'ble Supreme Court in
State (NCT of Delhi) vs. Shiv Kumar Yadav and another
reported in (2016)2 SCC 402 have held that plea of recalling a
witness has to be bonafide and mere change of a counsel, can
not be a ground for recalling a witness. Their lordships have
held as under:
“11. It is further well settled that fairness of trial has to be
seen not only from the point of view of the accused, but also
from the point of view of the victim and the society. In the
name of fair trial, the system cannot be held to ransom. The
accused is entitled to be represented by a counsel of his
choice, to be provided all relevant documents, to crossexamine
the prosecution witnesses and to lead evidence in his
defence. The object of provision for recall is to reserve the
power with the court to prevent any injustice in the conduct of
the trial at any stage. The power available with the court to
prevent injustice has to be exercised only if the Court, for valid
reasons, feels that injustice is caused to a party. Such a
finding, with reasons, must be specifically recorded by the
court before the power is exercised. It is not possible to lay
down precise situations when such power can be exercised.
The Legislature in its wisdom has left the power undefined.
Thus, the scope of the power has to be considered from case

to case. The guidance for the purpose is available in several
decisions relied upon by the parties. It will be sufficient to
refer to only some of the decisions for the principles laid down
which are relevant for this case.
12. In Rajaram case, the complainant was examined but
he did not support the prosecution case. On account of
subsequent events he changed his mind and applied for recall
under Section 311 Cr.P.C. which was declined by the trial
court but allowed by the High Court. This Court held such a
course to be impermissible, it was observed :
“13. .. In order to appreciate the stand of the appellant
it will be worthwhile to refer to Section 311 CrPC, as
well as Section 138 of the Evidence Act. The same are
extracted hereunder:
Section 311, Code of Criminal Procedure “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 reexamine
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.” * * *
Section 138, Evidence Act “138. Order of
examinations.—Witnesses shall be first
examined-in-chief then (if the adverse party so
desires) cross-examined, then (if the party
calling him so desires) re-examined.
The examination and cross-examination must
relate to relevant facts but the crossexamination
need not be confined to the facts
to which the witness testified on his
examination-in-chief.
Direction of re-examination.—The reexamination
shall be directed to the
explanation of matters referred to in crossexamination;
and if new matter is, by
permission of the court, introduced in reexamination,
the adverse party may further
cross-examine upon that matter.”
14. A conspicuous reading of Section 311 CrPC would
show that widest of the powers have been invested
with the courts when it comes to the question of
summoning a witness or to recall or re-examine any
witness already examined. A reading of the provision
shows that the expression “any” has been used as a
prefix to “court”, “inquiry”, “trial”, “other proceeding”,
“person as a witness”, “person in attendance though
not summoned as a witness”, and “person already
examined”. By using the said expression “any” as a
prefix to the various expressions mentioned above, it is

ultimately stated that all that was required to be
satisfied by the court was only in relation to such
evidence that appears to the court to be essential for
the just decision of the case. Section 138 of the
Evidence Act, prescribed the order of examination of a
witness in the court. The order of re-examination is
also prescribed calling for such a witness so desired for
such re- examination. Therefore, a reading of Section
311 CrPC and Section 138 Evidence Act, insofar as it
comes to the question of a criminal trial, the order of
re-examination at the desire of any person under
Section 138, will have to necessarily be in consonance
with the prescription contained in Section 311 CrPC. It
is, therefore, imperative that the 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 as noted by us
earlier. 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. Therefore, 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. To put it
differently, while such a widest power is invested with
the court, it is needless to state that exercise of such
power should be made judicially and also with extreme
care and caution.”
13. After referring to earlier decisions on the point, the
Court culled out following principles to be borne in mind :
“17.1. Whether the court is right in thinking that the
new evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by the
court for a just decision of a case?
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.
17.8. The object of Section 311 CrPC simultaneously
imposes a duty on the court to determine the truth and
to render a just decision.
17.9. The court arrives at the conclusion that
additional evidence is necessary, not because it would
be impossible to pronounce the judgment without it,
but because there would be a failure of justice without
such evidence being considered.
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.
17.12. The additional evidence must not be received as
a disguise or to change the nature of the case against
any of the party.
17.13. The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would be
germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
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.”
14. In Hoffman Andreas case, the counsel who was
conducting the case was ill and died during the progress of
the trial. The new counsel sought recall on the ground that

the witnesses could not be cross-examined on account of
illness of the counsel. This prayer was allowed in peculiar
circumstances with the observation that normally a closed
trial could not be reopened but illness and death of the
counsel was in the facts and circumstances considered to be a
valid ground for recall of witnesses. It was observed :
“6. Normally, at this late stage, we would be disinclined
to open up a closed trial once again. But we are
persuaded to consider it in this case on account of the
unfortunate development that took place during trial
i.e. the passing away of the defence counsel midway of
the trial. 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.”
15. The above observations cannot be read as laying down
any inflexible rule to routinely permit a recall on the ground
that cross-examination was not proper for reasons
attributable to a counsel. 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. 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 victims, especially so, of heinous
crimes, if they are required to repeatedly appear in court to
face cross-examination.

8. In the present case also, one of the grounds for
recalling the witness is change of counsel. It is not permissible.
Witness can not be expected to face the ordeal of appearing in
the Court repeatedly. No acceptable grounds have been made
out for recalling the witness. There is neither any perversity nor
any illegality in the order passed by the learned trial Court.
9. Accordingly, there is no merit in the present petition
and the same is dismissed, so also the pending applications, if
any.
(Rajiv Sharma)
Judge
September 5, 2016

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