P.SANJEEVA RAO Vs STATE OF A.P.
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: Crl.A. No.-000874-000875 / 2012
Diary number: 16091 / 2011
Advocates: Vs
D. MAHESH BABU
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 874-875 OF 2012 (Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011)
P. Sanjeeva Rao …Appellant
Versus
The State of A.P. …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. These appeals arise out of an order dated 29th March,
2011, passed by the High Court of Judicature for Andhra
Pradesh whereby Criminal Revision Petitions No.534 and
710 of 2011 filed by the appellant have been dismissed and
order dated 22nd January, 2011 passed by the Special Judge
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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.
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4. Both the applications mentioned above were opposed
by the prosecution resulting in the dismissal of the said
applications by the Trial Court in terms of its order dated
22nd January, 2011. The Trial Court observed:
“For what ever be the reasons the cross-examination of PWs 1 and 2 has been recorded as “nil”. There is nothing to show on the record that the petitioner had reserved his right to cross examine the witnesses at a later point of time. The dockets of the Court do not reflect any such intention of the petitioner.”
5. The Trial Court also held that recall of PWs 1 and 2 for
cross-examination more than 3 and ½ years after they had
been examined in relation to an incident that had taken
place 7 years back, was bound to cause prejudice to the
prosecution. The Trial Court was of the view that the
appellant had adopted a casual and easy approach towards
the trial procedure and that he could not ask for the recall
of any witness without cogent reasons.
6. Aggrieved by the order passed by the Trial Court the
appellant filed two revision petitions before the High Court
which, as noticed earlier, have been dismissed by the High
Court in terms of the order impugned in these appeals. The
High Court took the view that PWs 1 and 2 had been
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examined on 13th June, 2008 and 31st July, 2008
respectively followed by examination of nearly one dozen
prosecution witnesses. The High Court held that since this
was an old case of the year 2005 and the matter was now
coming up for examination of the appellant-accused under
Section 313 Cr.P.C., there was no justification for recall of
the prosecution witnesses No.1 and 2. The revision
petitions were accordingly dismissed.
7. Appearing for the appellant Mr. A.T.M Ranga
Ramanujan, learned senior counsel, contended that the
Trial Court as also the High Court had taken a hyper
technical view of the matter without appreciating that grave
prejudice will be caused to the appellant if the prayer for
cross-examination of PWs. 1 and 2 was not granted and the
recall of the witnesses for that purpose declined. He
submitted that counsel for the appellant before the Trial
Court was under a bona fide belief that the cross-
examination of the prosecution witnesses PWs. 1 and 2,
who happened to be the star witnesses, one of them being
the complainant and the other a witness who allegedly
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heard the conversation and observed the passing of the
bribe to the accused could be conducted after PW-11 had
been examined. It was contended that the lawyer
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
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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 cross-
examination of PWs. 1 and 2 could be deferred at the
option of the accused to a later stage, the Court record
does not show any such request having been made or any
liberty being reserved to the accused. It was, according to
Mr. Rawal, a case where an opportunity to cross-examine
had been given to the accused and his counsel but they had
chosen not to avail of the same, in which case a belated
request for recall of the witnesses to exercise the right to
cross-examine could and has been rightly rejected by the
Trial Court and that rejection affirmed by the High Court. It
was also submitted that the recall of the prosecution
witnesses, who have gone without cross-examination at an
earlier stage, is likely to prejudice the prosecution
inasmuch as the incident in question is as old as of the year
2005, while the request for recall was made only in the
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year 2011, nearly four years after the framing of the
charges against the appellant.
9. The appellant who was working as Sub Divisional
Officer in the B.S.N.L., Karimnagar, is accused of having
demanded and received a bribe of Rs.3,000/- from the
complainant who was examined as PW1 at the trial. The
trap led by the CBI in which PW2 was associated as an
independent witness is said to have succeeded in catching
the petitioner red-handed with the bribe money eventually
leading to the filing of a charge-sheet against him before
the Court of Special Judge for CBI cases at Hyderabad in
March, 2005. Charges were framed against the petitioner
on 7th December, 2006. While PW1, the complainant in the
case, was examined on two different dates i.e. 3rd March,
2008 and 13th June, 2008, prosecution witness No.2 was
similarly examined on 18th July, 2008 and 31st July, 2008.
It is common ground that both the witnesses have stood by
the prosecution case for they have not been declared
hostile by the prosecution. This implies that the depositions
of the two witnesses are incriminating against the appellant
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and in the absence of any cross-examination their version
may be taken to have remained unchallenged. It is also
common ground that PWs. 3 to 11 were examined during
the period 31st July, 2008 and 28th December, 2011. The
Trap Laying Officer (PW 11) was examined on 18th
February, 2010 and on 1st April, 2010. The two applications
referred to earlier were filed before the Trial Court at that
stage, one asking for recall of 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
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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 who had sufficient experience at the Bar like
the one appearing for the appellant would have let the
opportunity to cross-examine go unavailed in a case where
the witnesses had supported the prosecution version not
only in regard to the demand of bribe but also its payment
and the success of the trap laid for that purpose. There is
no gainsaying that every prosecution witness need not be
cross-examined by the defence. It all depends upon the
nature of the deposition and whether the defence disputes
the fact sought to be established thereby. Formal witnesses
are not at times cross-examined if the defence does not
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dispute what is sought to be established by reference to
his/her deposition. The decision to cross-examine is
generally guided by the nature of the depositions and
whether it incriminates the accused. In a case like the one
at hand where the complainant examined as PW1 and the
shadow witness examined as PW2 had clearly indicted the
appellant and supported the prosecution version not only
regarding demand of the bribe but also its receipt by the
appellant there was no question of the defence not cross-
examining them. The two witnesses doubtless provided the
very basis of the case against the appellant and should
their testimony have remained unchallenged, there was
nothing much for the appellant to argue at the hearing.
The depositions would then be taken to have been accepted
as true hence relied upon. We may, in this connection, refer
to the following passage from the decision of this Court in
Sarwan Singh v. State of Punjab (2003) 1 SCC 240:
“It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted.”
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11. We are, therefore, inclined to believe that the two
prosecution witnesses were not cross-examined by the
counsel for the appellant not because there was nothing
incriminating in their testimony against the appellant but
because counsel for the appellant had indeed intended to
cross-examine them after the Trap Laying Officer had been
examined. The fact that the appellant did not make a
formal application to this effect nor even an oral prayer to
the Court to that effect at the time the cross-examination
was deferred may be a mistake which could be avoided and
which may have saved 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
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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 ambiguity
in the statements of the witnesses. This Court observed:
“This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched 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 it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its
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own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case . The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”
(emphasis supplied)
13. Grant of fairest opportunity to the accused to prove
his innocence was the object of every fair trial, observed
this Court in Hoffman Andreas v. Inspector of
Customs, Amritsar (2000) 10 SCC 430. The following
passage is in this regard apposite:
“In such circumstances, if the new Counsel thought to have the material witnesses further examined, the
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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 depend on the facts and circumstances of each case. ”
(emphasis supplied)
15. Discovery of the truth is the essential purpose of any
trial or enquiry, observed a three-Judge Bench of this Court
in Maria Margarida Sequeria Fernandes v. Erasmo
Jack de Sequeria through LRs. 2012 (3) SCALE 550.
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A timely reminder of that solemn duty was given, in the
following words:
“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.”
16. We are conscious of the fact that recall of the
witnesses is being directed nearly four years after they
were examined in chief about an incident that is nearly
seven years old. Delay takes a heavy toll on the human
memory apart from breeding cynicism about the efficacy of
the judicial system to decide cases within a reasonably
foreseeable time period. To that extent the apprehension
expressed by Mr. Rawal, that the prosecution may suffer
prejudice on account of a belated recall, may not be wholly
without any basis. Having said that, we are of the opinion
that on a parity of reasoning and looking to the
consequences of denial of opportunity to cross-examine the
witnesses, we would prefer to err in favour of the appellant
getting an opportunity rather than protecting the
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prosecution against a possible prejudice at his cost.
Fairness of the trial is a virtue that is sacrosanct in our
judicial system and no price is too heavy to protect that
virtue. A possible prejudice to prosecution is not even a
price, leave alone one that would justify denial of a fair
opportunity to the accused to defend himself.
17. In the result, we allow these appeals, set aside the
orders passed by the Trial Court as also the High Court and
direct that the prosecution witnesses No.1 and 2 shall be
recalled by the Trial Court and an opportunity to cross-
examine the said witnesses afforded to the appellant. In
fairness to the counsel for the appellant, we must record
that he assured us that given an opportunity to examine
the witnesses the needful shall be done on two dates of
hearing, one each for each witness without causing any un-
necessary delay or procrastination. The Trial Court shall
endeavour to conclude the examination of the two
witnesses expeditiously and without unnecessary delay. The
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parties shall appear before the Trial Court on 6th August,
2012.
……………………….……..……J. (T.S. THAKUR)
………………………….…..……J. (GYAN SUDHA MISRA)
New Delhi July 2, 2012