Page 1

1

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

Page 2

2

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.  

Page 3

3

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

Page 4

4

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

Page 5

5

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

Page 6

6

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

Page 7

7

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

Page 8

8

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

Page 9

9

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

Page 10

10

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.”

Page 11

11

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

Page 12

12

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

Page 13

13

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

Page 14

14

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.

Page 15

15

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

Page 16

16

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

Page 17

17

parties shall appear before the Trial Court on 6th August,  

2012.  

……………………….……..……J.               (T.S. THAKUR)

………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi July 2, 2012