2016 (8) TMI 1564 - SC - Indian Laws

Dishonor of Cheque - cross-examination of witnesses - applicability of principle of magnanimity - recording of statements of the accused persons Under Section 313 Code of Criminal Procedure - seeking recall of the witnesses Under Section 311 read with Section 231(2) Code of Criminal Procedure - HELD THAT - 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 2015 (9) TMI 1702 - SUPREME COURT and Fatehsinh Mohansinh Chauhan 2006 (8) TMI 684 - SUPREME COURT . 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 Code of Criminal Procedure. 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. 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 Code of Criminal Procedure. 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 - 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 Code of Criminal Procedure 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. The exercise of power Under Section 311 Code of Criminal Procedure 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 - 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. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Recalling of witnesses under Section 311 of the Code of Criminal Procedure.
2. Fair trial and its implications under Article 21 of the Constitution.
3. Exercise of judicial discretion by the trial court and High Court.

Detailed Analysis:

1. Recalling of Witnesses under Section 311 of the Code of Criminal Procedure:

The primary issue was whether the High Court was correct in allowing the recall of witnesses under Section 311 of the Code of Criminal Procedure. The trial court had rejected the application for recalling witnesses, noting that the defence had already cross-examined the witnesses extensively and that the application was filed at a very belated stage. The High Court, however, allowed the recall, emphasizing the need for a fair trial and the illness of the defence counsel during the initial trial.

The Supreme Court analyzed the scope of Section 311, which permits the court to recall witnesses if their evidence appears essential to the just decision of the case. The Court reiterated that this power should be exercised judicially and not arbitrarily, emphasizing that it should not be used to fill lacunae left by the prosecution or defence. The Court found that the High Court had erred in its decision, as the grounds for recall did not justify such an action under the established norms of Section 311.

2. Fair Trial and its Implications under Article 21 of the Constitution:

The concept of a fair trial, as an inseparable facet of Article 21 of the Constitution, was extensively discussed. The Supreme Court highlighted that a fair trial involves fairness to the accused, the victim, and society. It stated that the trial should not be prolonged unnecessarily, and the concept of fair trial should not be stretched to allow for a retrial or to accommodate every request for recalling witnesses, especially when it is not essential for the just decision of the case.

The Court referred to previous judgments emphasizing that a fair trial should not be reduced to a mere formality and that the rights of the victim and society should also be considered. The Court noted that the High Court's decision to allow the recall of witnesses based on the illness of the defence counsel and the accused being in custody was not sufficient to warrant such an action.

3. Exercise of Judicial Discretion by the Trial Court and High Court:

The Supreme Court scrutinized the exercise of judicial discretion by both the trial court and the High Court. The trial court had denied the recall of witnesses, stating that the defence had already had ample opportunity to cross-examine them and that allowing the recall would delay the trial further. The High Court, however, allowed the recall, emphasizing the need for a fair trial and the illness of the defence counsel.

The Supreme Court held that the trial court had correctly exercised its discretion, while the High Court had erred in its judgment. The Court emphasized that judicial discretion should be exercised based on established principles and not on vague notions of fairness or magnanimity. The Court concluded that the High Court's decision to allow the recall of witnesses was not justified and set aside the High Court's order, restoring the trial court's decision.

Conclusion:

The Supreme Court allowed the appeals, set aside the High Court's order, and restored the trial court's decision, directing the trial court to proceed with the trial in accordance with the law. The judgment underscores the importance of judicial discretion, the balance between the rights of the accused and the interests of society, and the proper application of Section 311 of the Code of Criminal Procedure.