TMI Blog2015 (9) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... r. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and was closed on 31st January, 2015. The witnesses were duly cross-examined by the counsel engaged by the accused. Statement of the accused Under Section 313 Code of Criminal Procedure was recorded on 3rd February, 2015. On 4th February, 2015, an application for recall of prosecutrix PW2 and formal witness PW-23 who booked the cab was made, but the same was rejected and the said order was never challenged. Thereafter, on 9th February, 2015, the accused engaged another counsel, who filed another application Under Section 311 Code of Criminal Procedure for recall of all the 28 prosecution witnesses on 16th February, 2015. The said application was dismissed on 18th February by the trial court but the same was allowed by the High Court vide impugned order dated 4th March, 2015 in a petition filed Under Article 227 of the Constitution of India read with Section 482 Code of Criminal Procedure. Even though the specific grounds urged in the application were duly considered and rejected, it was observed that recall of certain witnesses was deemed proper for ensuring fair trial. 3. Aggrieved by the order of the High Court, the victim as well as the State have moved this Court. 4. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnataka v. Shivanna (2014) 8 SCC 916, Hofman Andreas v. Inspector of Customs (2000) 10 SCC 430, Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263, Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, NHRC v. State of Gujarat (2009) 6 SCC 767, Swaran Singh v. State of Punjab (2000) 5 SCC 668. 7. Shri Gonsalves, learned senior Counsel adopted the submissions of learned Attorney General and further submitted that the High Court appears to have been impressed by the fact that the accused was in custody and thus had no reason to delay the trial. A presumption that an accused in custody will not delay the trial was not well founded and could not be a valid consideration for retrial or recall of prosecutrix and other witnesses. The prosecutrix had already faced court proceedings while recording her statement Under Section 164 Code of Criminal Procedure and while facing cross-examination for three days. He also placed reliance on P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578, Delhi Domestic Working Women' Forum v. Union of India (1995) 1 SCC 14, Natasha Singh v. CBI (2013) 5 SCC 741, Mohanlal Shamji Soni v. Union of India (1991) Supp. 1 SCC 271, Zahira Habibul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be kept in mind for interpreting the statutory provisions. 11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son already examined . By using the said expression any as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Code of Criminal Procedure and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person Under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Code of Criminal Procedure. It is, therefore, imperative that the invocation of Section 311 Code of Criminal Procedure and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Code of Criminal Procedure simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible. 15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that the counsel's conduct falls within the wide range of reasonable professional assistance;.... 18. It may be proper to recall that the present case is in the category of cases where the trial is required to be fast tracked. In fact this Court directed in Shivanna [(2014) 8 SCC 916] as under: 2. While we propose to consider this matter on merits after service of notice to the Respondent-accused, we feel acutely concerned as to why the Union of India should not take initiative and steps to evolve a procedure for fast-track justice to be adopted by the investigating agencies and the Fast Track Courts by proposing amendments to Code of Criminal Procedure for speedy justice to the victim. 3. Fast Track Courts no doubt are being constituted for expeditious disposal of cases involving the charge of rape at the trial stage, but we are perturbed and anguished to notice that although there are Fast Track Courts for disposal of such cases, we do not yet have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast-track procedure to the Fast Track Court to resort to. 6. Considering the consistent recurrence of the heinous crime of rape and gang rape all over the country including the metropolitan cities, we are of the view that it is high time such measures of reform in Code of Criminal Procedure be introduced after due deliberation and debate by the legal fraternity as also all concerned. We, therefore, deem it just and appropriate to issue notice to the Union of India through the Attorney General which the counsel for the Petitioner is directed to serve by way of dasti summons. The matter be posted again on 3-9-2013 for further consideration. 19. In continuation of the above, further order dated 25th April, 2014 [(2014) 8 SCC 913] was passed as follows: 10.1. Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement Under Section 164 Code of Criminal Procedure. A copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. This Court disapproved the course adopted and held: 16. ... Here again it may be noted that the prosecution has closed the evidence. The accused have been examined Under Section 313 of the Code. The prosecution did not at any stage move the trial Judge for recalling PW 34 for further examination. In these circumstances, the liberty reserved to the prosecution to recall PW 34 for re-examination is undoubtedly uncalled for. 21. We may also note that the approach to deal with a case of this nature has to different from other cases. We may refer to the judgment of this Court in Gurmit Singh case, wherein it was observed: 8. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: 22. The aforesaid proceedings clearly bely the claim of the accused/applicant that the case has been proceeding at a hurried pace or that he was not duly represented by a defence counsel of his choice. The claim of the applicant that he was unwilling to continue with his earlier counsel is also nothing but a bundle of lie in as much as the accused never submitted before the court that he wants to change his counsel. Rather, it is revealed from the record that the earlier counsel, Sh. Alok Kumar was acting as per his instructions and having legal interview with him. The accused cannot be permitted to take advantage of his submissions made on the first date i.e. 13/01/2015 that he wants to engage a new counsel as his subsequent conduct does not support this submission. I may also add that before proceeding with the case further, I had personally asked the accused in the open court whether he wants to continue with his counsels and only on getting a reply in the affirmative, were the proceedings continued further. It thus appears that the endeavor of the accused by fling this application is only to delay the proceedings despite the fact that all along the trial his request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court Under Section 311 Code of Criminal Procedure. No judgment has been pointed out by the learned Counsel for the Petitioner in support of such a contention. Even on a practical level it would well nigh be impossible to ensure expeditious completion of trials if trial courts were expected to perform such an exercise at the conclusion of the examination of prosecution witnesses every time. 28. It may also be relevant to mention that Article 22(1) of the Constitution of India confers a Fundamental Right upon an accused, who has been arrested by the police to be defended by a legal practitioner of his choice. This Fundamental Right has been duly acknowledged by the Hon'ble Superior Courts in numerous pronouncements including the case of State of Madhya Pradesh v. Shobha Ram and Ors. AIR 1966 SC 1910 wherein it has been observed as under: Under Article 22, a person who is arrested for whatever reason, gets three independent rights. The first is the right to be told the reasons for the arrest as soon as an arrest's made, the second is the right to be produced before a Magistrate within 24 hours and the third is right to be defended by advocate of his choice. When the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others, that she has to be questioned as to why she did not give her sim of her mobile to the IO and why the IO did not ask her for the same. Similarly, it has been submitted that the accused though admitted his potency report but has not admitted the time and process of the potency test as stated by the IO and thus the 10 needs to be recalled. Further, SI Sandeep is required to be recalled for cross examination in order to cross examine him with regard to the document given by the Transporter, who brought the cab in question from Mathura to Delhi. It may also be mentioned that in his zest to seek recall of all the prosecution witnesses, the applicant has also sought recall of one lady constable Manju, who as per record was not even examined as a prosecution witness. 35. It is further necessary to mention that on 04/02/2015 accused had moved an application Under Section 311 Code of Criminal Procedure, thereby seeking recall of prosecutrix PW-2 and PW-23 Ayush Dabas. The application was dismissed. The present application has been filed now seeking recall of all PWs, including PW-2 and PW-23, while the order dated 04/02/2015 still remains unchallenged. 36. The application under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner which was duly granted and under these circumstances the submission of learned Counsel for the Petitioner that justice hurried is justice buried, deserves outright rejection. 25. It was then observed that competence of a counsel was a subjective matter and plea of incompetence of the counsel could not be easily accepted. It was observed: 32. The other submission of learned Counsel for the Petitioner that Sh. Alok Dubey, Advocate was not competent to appear as an Advocate inasmuch as he had not even undergone screening test as required by Bar Council of Delhi Rules and was not issued practice certificate, this submission is not fortified by any record. Much was said against the competency of the earlier counsel representing the Petitioner. However, learned standing counsel for the State was right in submitting that competency of an Advocate is a subjective issue which should not have been attacked behind the back of the concerned Advocate.... 33. Learned Additional Standing counsel for the State has furnished details of the number of questions put by the earlier counsel to the prosecution witnesses for showing the performance of the earlier counsel. Moreover, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined. 28. It will also be pertinent to mention that power of judicial superintendence Under Article 227 of the Constitution and Under Section 482 Code of Criminal Procedure has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court Jasbir Singh v. State of Punjab (2006) 8 SCC 294, prs. 10 to 14. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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