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.
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
Versus
Ram Mehar & Others Etc. Etc.
Citation:AIR 2016 SC 3942
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
Amritsar1
, P. Chhaganlal Daga v. M. Sanjay Shaw2
, P.
Sanjeeva Rao v. State of Andhra Pradesh3
, Natasha Singh
v. Central Bureau of Investigation (State)4
and State (NCT
of Delhi) v. Shiv Kumar Yadav and another5
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.
1
(2000) 10 SCC 430
2
(2003) 11 SCC 486
3
(2012) 7 SCC 56
4
(2013) 5 SCC 741
5
(2016) 2 SCC 402Page 11
11
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
Jethmalani6
, 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.”
6
(1979) 4 SCC 167Page 18
18
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 Haryana7
, 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
7
(1981) 3 SCC 191Page 19
19
from Sessions Judge, Nellore v. Intha Ramana Reddy8
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 Pradesh9
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
8
1972 Cri LJ 1485
9
(2012) 4 SCC 516Page 20
20
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 Singh10
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 Marwah11 (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
10 (2009) 17 SCC 303
11 (2005) 4 SCC 370
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 others12 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
12 (2014) 2 SCC 401
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
another13 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 Reddy15 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
13 (2015) 8 SCC 787
14 (2010) 6 SCC 1
15 (1999) 8 SCC 715Page 24
24
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 straitjacket
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 reexamine
any such person if his evidence appears
to it to be essential to the just decision of the
case.”Page 27
27
26. A quarter of a century back, a two-Judge Bench in
Mohanlal Shamji Soni v. Union of India and another16 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
16 AIR 1991 SC 1346Page 28
28
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 Pradesh17
, State of West Bengal v. Tulsidas
Mundhra18
, Jamatraj Kewalji Govani v. State of
Maharashtra19 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]
17 (1978) 2 SCC 518
18 (1963) 2 SCJ 204
19 AIR 1968 SC 178
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 Cell20 occasion arose to
appreciate the principles stated in Mohanlal Shamji Soni
(supra). The two-Judge Bench took note of the observations
20 (1999) 6 SCC 110Page 30
30
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 canPage 31
31
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 Chauhan21, 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
21 (2006) 7 SCC 529
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
another22, 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
22 (2013) 14 SCC 461
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 widestPage 34
34
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.Page 35
35
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 Punjab23, 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
23 (2015) 3 SCC 220Page 39
39
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 Punjab24, 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.
24 (2013) 7 SCC 108
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
Print Page
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.
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
Versus
Ram Mehar & Others Etc. Etc.
Citation:AIR 2016 SC 3942
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
Amritsar1
, P. Chhaganlal Daga v. M. Sanjay Shaw2
, P.
Sanjeeva Rao v. State of Andhra Pradesh3
, Natasha Singh
v. Central Bureau of Investigation (State)4
and State (NCT
of Delhi) v. Shiv Kumar Yadav and another5
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.
1
(2000) 10 SCC 430
2
(2003) 11 SCC 486
3
(2012) 7 SCC 56
4
(2013) 5 SCC 741
5
(2016) 2 SCC 402Page 11
11
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
Jethmalani6
, 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.”
6
(1979) 4 SCC 167Page 18
18
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 Haryana7
, 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
7
(1981) 3 SCC 191Page 19
19
from Sessions Judge, Nellore v. Intha Ramana Reddy8
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 Pradesh9
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
8
1972 Cri LJ 1485
9
(2012) 4 SCC 516Page 20
20
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 Singh10
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 Marwah11 (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
10 (2009) 17 SCC 303
11 (2005) 4 SCC 370
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 others12 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
12 (2014) 2 SCC 401
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
another13 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 Reddy15 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
13 (2015) 8 SCC 787
14 (2010) 6 SCC 1
15 (1999) 8 SCC 715Page 24
24
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 straitjacket
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 reexamine
any such person if his evidence appears
to it to be essential to the just decision of the
case.”Page 27
27
26. A quarter of a century back, a two-Judge Bench in
Mohanlal Shamji Soni v. Union of India and another16 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
16 AIR 1991 SC 1346Page 28
28
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 Pradesh17
, State of West Bengal v. Tulsidas
Mundhra18
, Jamatraj Kewalji Govani v. State of
Maharashtra19 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]
17 (1978) 2 SCC 518
18 (1963) 2 SCJ 204
19 AIR 1968 SC 178
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 Cell20 occasion arose to
appreciate the principles stated in Mohanlal Shamji Soni
(supra). The two-Judge Bench took note of the observations
20 (1999) 6 SCC 110Page 30
30
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 canPage 31
31
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 Chauhan21, 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
21 (2006) 7 SCC 529
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
another22, 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
22 (2013) 14 SCC 461
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 widestPage 34
34
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.Page 35
35
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 Punjab23, 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
23 (2015) 3 SCC 220Page 39
39
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 Punjab24, 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.
24 (2013) 7 SCC 108
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
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