TMI Blog2012 (7) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 2011 passed by the Special Judge for CBI cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld. 3. The appellant is being prosecuted for offences punishable under Sections 7 13 (1) read with Section 13(1)(D) of Prevention of Corruption Act, 1988, before the Special Judge for CBI cases at Hyderabad. Around the time the prosecution concluded its evidence, the appellant filed Crl. Misc. Petitions No.18 and 19 of 2011 under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination. The appellant s case in the said Criminal Misc. Petition No.18 of 2011 was that cross-examination of PWs 1 and 2 had been deferred till such time the Trap Laying Officer (PW 11) was examined by the prosecution and since the said officer had been examined, PWs 1 and 2 need be recalled for cross- examination by counsel for the accused-appellant. In Crl. Misc. Petition No.19 of 2011 the petitioner made a prayer for deferring the cross- examination of Investigating Officer (PW12) in the case till such time PWs 1 and 2 were cross-examined. 4. Both the applications mentioned above were opposed by the prosecution resulting in the dismissal of the said appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appearing before the Trial Court had also filed a personal affidavit stating that PWs. 1 and 2 had not been cross-examined by him under a bona fide impression that he could do so after the evidence of the Trap Laying Officer (PW-11) had been recorded. Mr. Ramanujan urged that while the lawyer may have committed a mistake in presuming that the prosecution witnesses No. 1 and 2 could be recalled for cross-examination at a later stage without the Trial Court granting to the accused the liberty to do so, such a mistake should not vitiate the trial by denying to the appellant a fair opportunity to cross-examine the said witnesses. Heavy reliance was placed by learned counsel on the decision of this Court in Rajendra Prasad Vs. Narcotic Cell [1999 SCC (Cri) 1062], in support of his submission that no party to a trial can be denied the opportunity to correct errors if any committed by it. If proper evidence was not adduced or the relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such a mistake to be rectified. 8. Appearing for the respondent Mr. H.P. Rawal, learned Additional Solicitor General, contended that while cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PWs. 1 2 for cross-examination and the other asking for a deferring that the cross- examination of PW 12 till PWs. 1 and 2 are recalled and cross-examined. 10. The only question that arises in the above backdrop is whether the decision not to cross-examine PWs 1 and 2 was for the reasons stated by the petitioner or for any other reason. There is no dispute that no formal application was filed by the petitioner nor even an oral prayer made before the Trial Court to the effect that the exercise of the right to cross- examine the two witnesses was being reserved till such time the Trap Laying Officer was examined. This is precisely where counsel for the appellant has stepped in and filed a personal affidavit in which he has stated that even though there is no formal prayer made to that effect he intended to cross-examine the two witnesses only after the deposition of the Trap Laying Officer was recorded. In the peculiar circumstances of the case, we feel that the version given by the counsel may indeed be the true reason why two witnesses were not cross-examined on the conclusion of their examination-in-chief. We say so primarily because no lawyer worth his salt especially one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appellant a lot of trouble in getting the witnesses recalled. But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial. 12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan Ors. (2008) 15 SCC 652. This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. The following passage is in this regard apposite: 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. (emphasis supplied) 14. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India Anr. 1991 Supp (1) 271, where this Court observed: 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 and examination of any person which would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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