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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  805-806  OF 2016 (@ S.L.P. (Crl.) Nos. 3278-79 of 2016)

State of Haryana …Appellant(s)

  Versus

Ram Mehar & Others Etc. Etc. …Respondent(s)

J U D G M E N T

Dipak Misra, J.

Present appeals, by special leave, assail the order dated

09.03.2016 passed by the High Court of Punjab and Haryana

at Chandigarh in CRM-M No. 482 of 2016 and CRM-M No. 484

of  2016 whereby the learned single Judge in exercise of  the

power under Section 482 of the Code of Criminal Procedure (for

short  “CrPC”)  has  annulled  the  order  of  the  learned  First

Additional  Sessions  Judge,  Gurgaon  passed  on  16.12.2015

wherein  he  had  rejected  the  prayer  of  the  accused  persons

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seeking recall  of  the witnesses under Section 311 read with

Section 231(2) CrPC.

2. To appreciate the controversy that has emanated in these

appeals,  it  is  obligatory  to  state  the  facts  in  brief.   The

prosecution case before the trial court is that on 18.07.2012

about  7  p.m.  the  accused  persons  being  armed  with  door

beams  and  shockers  went  upstairs  inside  M1  room  of  the

Manesar Factory of Maruti Suzuki Limited, smashed the glass

walls of the conference room and threw chairs and table tops

towards the management officials, surrounded the conference

hall from all sides and blocked both the staircases and gave

threats of doing away with the lives of the officials present over

there.  As the allegations of the prosecution further unfurl, the

exhortation continued for quite a length of time.  All kind of

attempts  were  made  to  burn  alive  the  officials  of  the

management.  During this pandemonium, the entire office was

set on fire by the accused persons and the effort by the officials

to escape became an exercise in futility as the accused persons

had blocked the staircases.  The police officials who arrived at

the spot to control the situation were assaulted by the workers

and  they  were  obstructed  from  going  upstairs  to  save  the

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officials. Despite the obstruction, the officials were saved by the

police  and  the  fire  was  brought  under  control  by  the  fire

brigade.   In the incident where chaos was the sovereign, Mr.

Avnish  Dev,  General  Manager,  Human  Resources  of  the

Company was burnt alive.   The said occurrence led to lodging

of  FIR  No.  184/2012  at  Police  Station  Manesar.  After

completion of  the  investigation,  the  police  filed  charge sheet

against 148 workers in respect of various offences before the

competent court which, in turn, committed the matter to the

court  of  session  and  during  trial  the  accused  persons  were

charged for the offences punishable under Sections 147/ 148/

149/ 452/ 302/ 307/ 436/ 323/ 332/ 353/ 427/ 114/ 201/

120B/ 34/ 325/ 381 & 382 IPC.

3. The evidence of  the prosecution commenced in August,

2013  and  was  concluded  on  02.03.2015.  Recording  of

statements  of  the  accused persons under  Section 313 CrPC

was  concluded  by  13.04.2015.   After  the  statements  under

Section  313  CrPC  were  recorded,  the  defence  adduced  its

evidence by examining number of witnesses.  Be it noted, when

an application for bail was filed before the trial court and it was

rejected upto  the  High Court,  some accused persons  moved

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this  Court  by  filing  Special  Leave  Petition  (Criminal)  Nos.

9881-9882 of 2013 and this Court on 17.02.2014 passed the

following order:-

“On  3.2.2014,  this  Court  had  directed  learned counsel  for   the   State  of  Haryana to  inform the Court  as  to  how  many  witnesses,  the  State proposes to examine and approximately how much time it will  take.   Mr.  K.T.S.  Tulsi, learned senior counsel  appearing  on  behalf  of  the  State,   has informed   the  Court  that  as   of   today,   the prosecution   wishes   to   examine   total   186 witnesses, out  of  which  92  are  eye-witnesses. However,   as   presently  advised,  the  prosecution wants to examine only 23  eye  witnesses.   Two  of the  eye  witnesses  have  already  been  examined. Therefore,   21   more   eye-witnesses  have  to  be examined.   In  view  of  this  statement,  we  do  not propose to pass any order on the bail  application filed  by  the   petitioner.  We  feel  that  it  would  be appropriate  to  give  directions  to  the  learned Sessions  Judge  to  dispose  of  the  trial  as expeditiously  as  possible.   We are informed that in a month, only one or  two  days  are  assigned  by the learned Sessions Judge to this  case.   We are aware  of  the  pressure  under which the learned Sessions  Judge  is  working.  However,  considering the peculiar nature of the offence and the number of persons  involved  in  this case,  we  feel  it  would be   in   the   interest   of   justice   to   expedite examination of eye witnesses and for that to take up the matter  on  day  to day basis, if required. We direct the learned Sessions Judge to examine all the eye-witnesses by 30.4.2014.  Needless to say that it will   be   open   to  the  petitioner  to  prefer  a  bail application  the  after  eye-witnesses  are examined. We  make  it  clear  that  on  the  merits  of  the petitioner's case,  we have expressed no opinion.”

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4. To continue the narrative in chronology, on 13.02.2015,

Salil Bihari Lal, PW-8, was recalled for further examination and

on 20.02.2015, DSP Om Prakash, PW-99, was recalled. On the

same day, the prosecution concluded its evidence. As has been

indicated earlier, the statements of the accused persons under

Section  313  CrPC  were  recorded  and  thereafter  the  defence

examined fifteen witnesses.   

5. When the matter stood thus, on 30.11.2015, two petitions

under  Section  311  CrPC  were  filed  by  different  accused

persons.  In the first petition filed by Ram Mehar and others,

recall was sought of Vikram Verma, PW-1, Vikram Khazanchi,

PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad, PW-5, Salil

Bihari Lal, PW-8, Vikram Sarin, PW-10, Deepak Anand, PW-29

and DSP Om Prakash,  PW-99.  In respect  of  Deepak Anand,

PW-29, it  was stated that  he was required to be recalled to

establish that he is not a reliable witness.   As regards Vikram

Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy,

PW-3,  Birendra  Prasad,  PW-5,  Salil  Bihari  Lal,  PW-8  and

Vikram Sarin, PW-10, it was averred that they are required to

be recalled in order to prove the manner and circumstances

pertaining to how the incident took place.  That apart, it was

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stated, certain important questions and suggestions pertaining

to the injuries received by the prosecution witness and other

persons were also required to be put to them.   With regard to

DSP Om Prakash, PW-99, it was asserted that recalling of the

said witness was required to enable the accused persons to put

forth  certain  aspects  of  the  investigation,  particularly  with

regard  to  the  type  of  weapons  used  and  injuries  allegedly

caused to various prosecution witnesses and other persons. We

think it appropriate to reproduce what further has been stated

in the application:-

“6.  That  the  cross-examination proposed to  be undertaken by the defence will be limited to the aspect  of  injuries  sustained  by  different witnesses  and  other  persons,  as  well  as  the weapons  of  offence  used,  besides  suggestions that  specifically  refute  the  sequence  of  events and roles ascribed to the accused etc. 7.  That  the  accused  persons  undertake  to conclude  the  cross-examination  of  these witnesses on the dates on which they appear, or such  further  dates  as  decided  by  this  Hon’ble Court. 8.  That  it  may be worthwhile  to  mention here that due to the nature of the case and the lack of individual  representation  to  the  148  accused persons,  much  of  the  cross-examination  was composite in nature and in the process, certain important  questions  and  suggestions  with respect to their individual roles and allegations, could not be satisfactorily put to the prosecution witnesses in question.

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9.  That  the  trial  was  essentially  conducted  by Sh.  R.S.  Hooda,  Advocate,  who  was  suffering from a critical illness throughout the trial, and on numerous occasions, despite his valiant effort and  intentions,  the  above  aspects  were inadvertently missed out.  The final arguments will now be conducted by a fresh team of Senior Lawyers, who have had occasion to examine the record and are therefore desirous of  correcting certain inadvertent  errors that  may have  crept into the defence of the accused. 10.  That  these  aspects  are  extremely  relevant and germane to the defence of the accused, and a denial of opportunity to further cross-examine the witnesses on these aspects would amount to a denial of the right to a fair trial. 11.  That  vide  the  present  application,  the Applicants  are  not  seeking  to  raise  any  fresh grounds in defence,  but  merely  correct  certain errors committed during cross-examination, and as such this does not amount to the filing up of any lacunae in the defence.”

6. After  making  such  assertions,  the  petitioners  therein

proceeded  to  state  the  law  laid  down  by  this  Court  in  the

context of Section 311 CrPC.

7. In  the  second  application  filed  by  Kishan  Kumar  and

others for recalling of witnesses, namely, Shobhit Mittal, PW-7,

Rajeev Kaul, PW-14, Sri Niwasan, PW-22 and Umakanta T.S.,

PW-28, the assertions were almost the same apart from some

additional ground which we think appropriate to reproduce:-

“7. That the trial  was essentially conducted by Sh.  R.  S.  Hooda,  Advocate,  who  was  suffering

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from a critical illness throughout the trial, and on  numerous  occasions,  despite  his  valiant efforts  and  intentions,  the  above  aspects  were inadvertently missed out.  The final arguments will now be conducted by a fresh team of senior lawyers, who have had occasions to examine the record, and are therefore, desirous of correcting certain inadvertent  errors that  may have  crept into the defence of the accused. 8. That these aspects are extremely relevant and germane to  the  defence  of  the  accused,  and a denial  of  opportunity  to  further  cross-examine the witnesses on these aspects would amount to a denial of the right to a fair trial. 9.  That  vide  the  present  application,  the Applicants  are  not  seeking  to  raise  any  fresh grounds in defence,  but  merely  correct  certain errors committed during cross-examination, and as such this does not amount of filing up of any lacuna in the defence.”

8. The learned trial Judge noted the contentions advanced

by the learned counsel for the defence and the prosecution and

observed that:-

“7.  The present application has been moved at a very  belated  stage  at  a  time  when  102 prosecution  witnesses  have  already  been examined  during  this  trial  in  which  larger number  of  148 accused are  involved and they have  been  examined  way  back  as  prosecution evidence was concluded on 2.3.15.   Long time was  consumed for  recording  the  statements  of the accused under section 313 Cr.P.C. and for the last more than six months, the case is being adjourned for recording the defence evidence and in this regard number of opportunities have been availed by the defence and 15 defence witnesses have been examined so far.  At this juncture it

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may be recalled that Hon’ble Supreme Court has directed  this  court  to  decide  this  trial expeditiously.  

  x x x x x x x 9. Nothing has been explained as to what are the  left  out  questions  and  how  the  questions already put to the said witnesses created inroad into the defence of the said accused.  In para 3 of the application, it is stated that the manner and circumstances as to how the incident took place and further the questions pertaining to weapons used and the injuries to the said witnesses and to others are certain other questions, which are to be put to them.  A perusal of the statements of the aforesaid four witnesses clearly  reveal  that they  have  been  cross  examined  at  length  and there is nothing that defence counsel faltered by not putting relevant questions to them.  Putting it differently it is not a case of giving walk over by the defence to the prosecution witnesses by not properly conducting the cross examination. It  is  rightly  argued  by  learned  PP  that  if  the present application is allowed then there will be no  end  of  moving  such  applications  and  who knows  that  another  changed  defence  counsel may  come  up  with  similar  sort  of  application stating  that  the  previous  defence  counsel inadvertently could not put material  questions. It may be recalled that the present applicants are in  custody  but  that  does  not  mean  that  they cannot  move  the  application  to  delay  the  trial which  has  already  been  delayed  considerably. The  defence  has  already  availed  numerous opportunities.  This court in order to ensure the fair  trial  allowed  the  successive  applications moved by the defence to examine  the witnesses to support their respective pleas.  An old adage of a fair trial to accused does not mean that this principle is  to be applied in favour of  accused alone but this concept will  take in its  fold the fairness of  trial  to the victim as well  as to the society.   The  court  being  neutral  agency  is

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expected to be fair  to  both the parties  and its duty is also to ensure that the process of law is not  abused  by  either  of  them  for  extraneous reasons.  The speedy trial is essence of justice but such like applications like the present one should not come in the way of delivery of doing complete  and  expeditious  justice  to  both  the parties.”

9. After  so stating,  the learned trial  Judge referred to the

authorities  in  Hoffman  Andreas  v.  Inspector  of  Customs

Amritsar1, P.  Chhaganlal  Daga  v.  M.  Sanjay  Shaw2,  P.

Sanjeeva Rao v. State of Andhra Pradesh3, Natasha Singh

v. Central Bureau of Investigation (State)4  and State (NCT

of Delhi) v. Shiv Kumar Yadav and another5  and came to

hold that when the material questions had already been put,

there  was  no  point  to  entertain  the  application  and  mere

change of the counsel could not be considered as a ground to

allow the application for recalling the witnesses for the purpose

of  further  cross-examination.   It  is  worthy  to  note  that  two

separate orders were passed by the trial court but the analysis

is almost the same.

1 (2000) 10 SCC 430 2 (2003) 11 SCC 486 3 (2012) 7 SCC 56 4 (2013) 5 SCC 741  5 (2016) 2 SCC 402

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10. Dissatisfied  with  the  aforesaid  orders,  the  accused

persons preferred CRM-M No. 482 of 2016 and CRM-M No. 484

of 2016 before the High Court under Section 482 CrPC. The

High Court took note of the common ground that the leading

counsel for the defence was critically ill  during the trial  and

due to inadvertence, certain important questions, suggestions

with respect to the individual roles and allegations against the

respective  accused  persons,  the  injuries  sustained  by  the

witnesses, as well as the alleged weapons of offence used, had

not been put to the said witnesses.  It also took note of the fact

that the senior lawyer had been engaged at the final stage and

such  inadvertent  errors  were  discovered  by  him  and  they

needed to be rectified in order to have a meaningful defence

and a fair trial.  

11. The  High  Court  thereafter  adverted  to  the  contentions

raised  by  the  learned  counsel  for  the  petitioners  therein,

analysed the grounds of rejection that formed the bedrock of

the  order  passed  by  the  trial  Judge,  referred  to  certain

decisions by this Court including the recent decision in  Shiv

Kumar  Yadav  (supra)  and  came  to  hold  that  a  case  for

recalling had been made out to ensure grant of fair opportunity

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to  defend  and  uphold  the  concept  of  fair  trial.   It  further

expressed the view that when 148 accused persons are facing

trial  together,  wherein  the  prosecution  has  examined  102

witnesses  regarding  different  roles,  weapons  and  injuries

attributed to various accused qua various victims on the day of

occurrence stretched over a period of time within a huge area

of  factory  premises,  does  raise  a  sustainable  inference  that

there was confusion during the conduct of the trial leading to

certain inadvertent omissions and putting proper suggestions

on material aspects, which are crucial for the defence in a trial,

inter alia, for an offence under Section 302 IPC, although the

accused were represented by battery of lawyers with Sh. R.S.

Hooda,  Advocate  being  the  lead  lawyer.   The  High  Court

proceeded to opine that the accused-petitioners were charged

with heinous offences including one under Section 302 IPC and

recalling is  not  for  the purpose of  setting up a new case or

make  the  witnesses  turn  hostile  but  only  to  have  a  proper

defence as it is to be judicially noticed that for lack of proper

suggestions by the defence to the prosecution witnesses, the

trial courts at times tend to reject the raised defence on behalf

of the accused.  It was observed that some of such omissions

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and suggestions by way of illustration had been spelt out in the

body of the petitions and some had been stated to be withheld

for  avoiding  any  prejudice  to  the  defence,  nevertheless  the

stated purpose  was not  to  render  the  prosecution witnesses

hostile  to  the  case  of  prosecution  and,  therefore,  such

inadvertent  omissions and lack of  suggestions deserve to  be

accepted  to  be  bonafide  and  constituting  a  valid  reason

requiring  the  approach  of  the  Court  to  be  magnanimous  in

permitting  such  mistakes  to  be  rectified,  more  so  when the

prosecution,  concededly,  were  permitted  twice  to  lead

additional  evidence by invoking the provisions under Section

311 Cr.PC on no objection of the defence, after the closure of

the  prosecution  evidence.   Thereafter,  what  the  High  Court

expressed is seemly to reproduce:-

“The accused-petitioners are in custody and having nothing to gain from delaying the trial. The reasons assumed for declining the recalling in the impugned order dated 16.11.2015 (P-1) are clearly is conceived and thus vitiated. It is apparent from the provisions of Section 311 Cr.PC as interpreted by the Courts that  the  exercise  of  the  power  to  recall  is  not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case. No doubt speedy trial is essential  in  cases  involving  heinous  crimes, however,  nothing  has  been shown on record that the  Hon'ble  Supreme  Court  has  specifically  laid down a date by which the trial is mandated to be

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concluded. The order at P-8 is only in the context of the right of the accused to seek bail. The reliance by the trial Court on AG Vs. Shiv Kumar Yadav's case (supra) and Nisar Khan v. State case, (2006) 9 SCC 386, is  also misplaced in the facts of  the present cases. In the first case, the trial was for offence of rape and the defence was seeking the recall of all the  prosecution  witnesses  amounting  almost  to  a denovo trial without any regard to the harassment and plight of the young victim. In the latter case, the defence had succeeded in its purpose of turning the already examined witnesses to be hostile to the case of prosecution by recalling them after a period of one year. In the present case the facts are clearly distinguishable as aforesaid.”

12. On the basis of the aforesaid reasoning, the High Court

allowed the petitions and set aside the impugned orders and

directed as follows:-

“… in case the learned trial Court during the cross examination of the such recalled witnesses is of the opinion that such opportunity is being misused to make  the  witnesses  resile  from  their  earlier testimonies,  in  that  eventuality  the  trial  Court would be at full liberty to put a stop to that effort.”

13. We  have  referred  to  the  contents  of  the  applications,

delineation by  the  trial  court  and the  approach of  the  High

Court  under  Section  482  CrPC  in  extenso  so  that  we  can

appreciate whether the order passed by the High Court really

requires to be unsettled or deserves to be assented to.

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14. Mr.  Tushar  Mehta,  learned  Additional  Solicitor  General

appearing  for  the  appellant–State  of  Haryana,  criticizing  the

order of the High Court, submits that Section 311 CrPC despite

its  width  and  broad  compass  can  only  be  made  applicable

keeping in view the factual  score of  the case and not  to be

entertained in a routine manner.  It is his contention that the

High Court has been wholly misguided by the idea of fair trial

and the  concept  of  magnanimity  of  the  court  without  really

remaining alive to the factual matrix of the case at hand.  The

concept of “fair trial”, submits Mr. Mehta, cannot be stretched

too far  to engulf  situations which the said conception really

does not envisage.  Additionally, it is argued by him, neither

the plea taken with regard to illness of earlier counsel nor the

accused  persons  being  in  custody  can  constitute  legitimate

grounds for exercise of jurisdiction under Section 311 CrPC.   

15. Mr. R.S. Cheema, learned senior counsel along with Mr.

Sanjay Jain, learned counsel appearing for the respondents in

his turn has emphasized basically on four aspects, namely, a

fair  trial  is  a facet of  Article  21 of  the Constitution and the

principles of its applicability should not be marginalized; that

Section 311 CrPC confers enormous powers on the court for

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grant of  permission for  recalling of  witnesses so that  in the

ultimate eventuality justice is done and injustice in any form is

avoided and for the said purpose, the stage of the trial may be

an aspect to be taken into consideration in certain cases but

cannot  be regarded as the sole governing factor to deny the

prayer  for  recall;  that  when  the  prayer  was  confined   for

recalling  of  small  number  of  witnesses  because  of  critical

illness of the defence counsel who was not in a position to put

all  relevant  questions to  the  accused persons,  there was no

justification  to refuse the prayer of  recall  of  witnesses; and

that  when  the  accused  persons  are  already  in  custody  the

question of prolonging and procrastinating the trial by adopting

dilatory  tactics does not arise.  Learned senior counsel would

further submit that the High Court has passed a guided order

and  the  accused  persons  are  bound  by  it  and  they  do  not

intend  to  take  more  than  a  day  or  two  for  the  purpose  of

further cross examination and thus, there is no warrant on the

part of this Court in exercise of power under Article 136 of the

Constitution of India to interfere with the impugn order.  

16. Before we advert to the ambit and scope of Section 311

CrPC and its attractability to the existing factual  matrix,  we

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think  it  imperative  to  dwell  upon the  concept  of  “fair  trial”.

There is no denial of the fact that fair trial is an insegregable

facet of Article 21 of the Constitution.  This Court on numerous

occasions has emphasized on the fundamental  conception of

fair trial as the majesty of law so commands.  

17. A three-Judge Bench speaking through Krishna Iyer, J.

in  Maneka  Sanjay  Gandhi  and  another  v.  Rani

Jethmalani6,  though in a different context, observed:-  

“Assurance of  a fair trial  is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is  made  is  not  the  hyperscnahivity  or  relative convenience of a party or easy availability of legal services  or  like  mini-grievances.  Something  more substantial,  more  compelling,  more  imperilling, from  the  point  of  view  of  public  justice  and  its attendant environment, is necessitous if the Court is  to  exercise  its  power  of  transfer.  This  is  the cardinal principle although the circumstances may be myriad and vary from case 10 case. We have to lest  the  petitioner’s  grounds  on  this  touchstone bearing  in  mind  the  rule  that  normally  the complainant  has  the  right  to  choose  any  court having jurisdiction and the accused cannot dictate when- the case against him should be tried. Even so,  the  process  of  justice  should  not  harass  the parties and from that angle the court may weigh the circumstances.”

6 (1979) 4 SCC 167

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18. The aforesaid principle has been stated in the context of

transfer  of  a  case  but  the  Court  has  laid  emphasis  on

assurance of fair trial. It is worthy to note that in the said case,

the  Court  declined  to  transfer  the  case  and  directed  the

Magistrate to take measures to enforce conditions where the

court functions free and fair and agitational or muscle tactics

yield  no  dividends.  However,  liberty  was  granted  to  the

appellant  therein  to  renew  prayer  under  Section  406  CrPC.

Stress was laid on tranquil court justice.  It was also observed

that  when  the  said  concept  becomes  a  casualty  there  is

collapse of our constitutional order.  

19. In  Ram Chander v. State of Haryana7, while speaking

about the presiding judge in a criminal trial, Chinnappa Reddy,

J.  observed  that  if  a  criminal  court  is  to  be  an  effective

instrument  in  dispensing  justice,  the  presiding  judge  must

cease to be a spectator and a mere recording machine.   He

must become a participant in the trial by evincing intelligent

active  interest  by putting questions to witnesses in order  to

ascertain the truth.  The learned Judge reproduced a passage

7 (1981) 3 SCC 191

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from  Sessions  Judge,  Nellore  v.  Intha  Ramana  Reddy8

which reads as follows:-  

“Every  criminal  trial  is  a  voyage  of  discovery  in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section  172(2)  of  the  Code of  Criminal  Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of  the  proceedings  of  the  Committing  Magistrate may  also  be  perused  by  the  Sessions  Judge  to further aid him in the trial.”

20. While saying so, it has been further held that the Court

may actively participate in the trial to elicit the truth and to

protect the weak and the innocent and it must, of course, not

assume the role of a prosecutor in putting questions.

21. In  Rattiram and others v. State of Madhya Pradesh9

speaking on fair trial the Court opined that:-  

“… Fundamentally, a fair and impartial trial has a sacrosanct  purpose.  It  has  a  demonstrable  object that  the accused should not  be prejudiced. A fair trial is required to be conducted in such a manner

8 1972 Cri LJ 1485 9 (2012) 4 SCC 516

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which  would  totally  ostracise  injustice,  prejudice, dishonesty and favouritism.”

In the said case, it has further been held:-   

“60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused.  The  right  of  a  victim  has  been  given recognition  in  Mangal  Singh v.  Kishan  Singh10 wherein  it  has  been observed thus:  (SCC p.  307, para 14)

“14. … Any inordinate delay in conclusion of a criminal  trial  undoubtedly  has  a  highly deleterious  effect  on the  society  generally,  and particularly on the two sides of the case.  But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of  the  offence.  In many cases the victim may suffer  even more  than the accused. There  is,  therefore,  no  reason  to  give  all  the benefits  on  account  of  the  delay in  trial  to  the accused and to completely deny all justice to the victim of the offence.”

(Emphasis supplied)

61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah11 (SCC p. 387, para 24) though in a different context, had also observed that  delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost.

62. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the  society  and  the  anguish  and  agony  of  an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no  circumstances,  prejudice  should  be  caused  to

10 (2009) 17 SCC 303 11 (2005) 4 SCC 370

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the accused but, a pregnant one, every procedural lapse  or  every  interdict  that  has  been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink  of  perfection  in  procedure.  An  absolute apple-pie  order  in  carrying  out  the  adjective  law, would only be sound and fury signifying nothing.   

x x x x x

64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The  criminal  jurisprudence,  with  the  passage  of time,  has  laid  emphasis  on  victimology  which fundamentally  is  a  perception  of  a  trial  from the viewpoint of the criminal as well as the victim. Both are  viewed in  the  social  context.  The  view of  the victim is  given due  regard and respect  in  certain countries.  In  respect  of  certain  offences  in  our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.”

22. In  J. Jayalalithaa and others v. State of Karnataka

and others12 it has been ruled that fair trial is the main object

of  criminal  procedure  and  such  fairness  should  not  be

hampered or threatened in any manner. Fair trial entails the

interests of the accused, the victim and of the society. Thus,

fair trial must be accorded to every accused in the spirit of the 12 (2014) 2 SCC 401

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right to life and personal liberty and the accused must get a

free and fair, just and reasonable trial on the charge imputed

in a criminal case. Any breach or violation of public rights and

duties  adversely  affects  the  community  as  a  whole  and  it

becomes harmful to the society in general. It has further been

observed that in all circumstances, the courts have a duty to

maintain public confidence in the administration of justice and

such duty is to vindicate and uphold the “majesty of the law”

and  the  courts  cannot  turn  a  blind  eye  to  vexatious  or

oppressive  conduct  that  occurs  in  relation  to  criminal

proceedings.   Further, the Court has observed:-

“Denial  of  a  fair  trial  is  as much injustice  to the accused  as  is  to  the  victim  and  the  society.  It necessarily  requires  a  trial  before  an  impartial Judge,  a  fair  prosecutor  and  an  atmosphere  of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and  not  about  over  technicalities  and  must  be conducted  under  such  rules  as  will  protect  the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore,  free and fair  trial  is  a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore,  any hindrance in a fair  trial could be violative of Article 14 of the Constitution. “No trial can be allowed to prolong indefinitely due to  the  lethargy  of  the  prosecuting  agency  or  the State  machinery  and  that  is  the  raison  d’être  in

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prescribing  the  time  frame”  for  conclusion  of  the trial.”

23. In  Bablu  Kumar  and  others  v.  State  of  Bihar  and

another13 the Court referred to the authorities in  Sidhartha

Vashisht  alias Manu  Sharma  v.  State  (NCT  of  Delhi)14,

Rattiram  (supra),  J.  Jayalalithaa  (supra),  State  of

Karnataka v. K. Yarappa Reddy15 and other decisions and

came to hold that keeping in view the concept of fair trial, the

obligation of  the  prosecution,  the  interest  of  the  community

and the duty of the court, it can irrefragably be stated that the

court cannot be a silent spectator or a mute observer when it

presides over  a trial.  It  is  the duty of  the court  to  see that

neither the prosecution nor the accused play truancy with the

criminal trial or corrode the sanctity of the proceeding. They

cannot  expropriate  or  hijack  the  community  interest  by

conducting themselves in such a manner as a consequence of

which the trial  becomes a farcical  one.   It  has been further

stated that the law does not countenance a “mock trial”. It is a

serious concern of society. Every member of the collective has

an inherent interest in such a trial. No one can be allowed to

13 (2015) 8 SCC 787 14 (2010) 6 SCC 1 15 (1999) 8 SCC 715

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create a dent in the same. The court is duty-bound to see that

neither  the  prosecution  nor  the  defence  takes  unnecessary

adjournments and take the trial under their control.  We may

note  with  profit  though  the  context  was  different,  yet  the

message is writ large.  The message is – all kinds of individual

notions of fair trial have no room.

24. The  decisions  of  this  court  when  analysed  appositely

clearly convey that the concept of the fair  trial  is not in the

realm of abstraction.  It is not a vague idea.  It is a concrete

phenomenon.  It is not rigid and there cannot be any strait-

jacket formula for applying the same.  On occasions it has the

necessary  flexibility.   Therefore,  it  cannot  be  attributed  or

clothed with any kind of rigidity or flexibility in its application.

It  is  because  fair  trial  in  its  ambit  requires  fairness  to  the

accused,  the  victim and the  collective  at  large.   Neither  the

accused nor the prosecution nor the victim which is a part of

the society can claim absolute predominance over the other.

Once  absolute  predominance  is  recognized,  it  will  have  the

effect  potentiality  to  bring  in  an  anarchical  disorder  in  the

conducting  of  trial  defying  established  legal  norm.   There

should be passion for doing justice but it must be commanded

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by reasons and not propelled by any kind of vague instigation.

It would be dependent on the fact situation; established norms

and  recognized  principles  and  eventual  appreciation  of  the

factual scenario in entirety.  There may be cases which may

command compartmentalization but it cannot be stated to be

an  inflexible  rule.   Each  and  every  irregularity  cannot  be

imported to the arena of fair trial.   There may be situations

where  injustice  to  the  victim  may  play  a  pivotal  role.   The

centripodal purpose is to see that injustice is avoided when the

trial  is  conducted.   Simultaneously  the  concept  of  fair  trial

cannot be allowed to such an extent so that the systemic order

of  conducting  a  trial  in  accordance  with  CrPC  or  other

enactments  get  mortgaged  to  the  whims  and  fancies  of  the

defence or the prosecution.  The command of the Code cannot

be thrown to winds.  In such situation, as has been laid down

in many an authority, the courts have significantly an eminent

role.  A plea of fairness cannot be utilized to build Castles in

Spain  or  permitted  to  perceive  a  bright  moon  in  a  sunny

afternoon.   It  cannot  be  acquiesced  to  create  an  organic

disorder in the system. It cannot be acceded to manure a fertile

mind to usher in the nemesis of the concept of trial as such.

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From the aforesaid it may not be understood that it has been

impliedly stated that the fair trial should not be kept on its own

pedestal.  It ought to remain in its desired height but as far as

its  applicability  is  concerned,  the  party  invoking  it  has  to

establish  with  the  support  of  established  principles.   Be  it

stated when the process of the court is abused in the name of

fair trial at the drop of a hat, there is miscarriage of justice.

And, justice, the queen of all virtues, sheds tears.  That is not

unthinkable and we have no hesitation in saying so.   

25. Having dwelled upon the concept of fair trial we may now

proceed to the principles laid down in the precedents of this

Court, applicability of the same to a fact situation and duty of

the court under Section 311 CrPC.   The said provision reads

as follows:-  

“311.  Power  to  summon  material  witness,  or examine person present. Any Court may, at any stage  of  any  inquiry,  trial  or  other  proceeding under  this  Code,  summon  any  person  as  a witness,  or  examine  any  person  in  attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to  it  to  be  essential  to  the  just  decision  of  the case.”

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26. A  quarter  of  a  century  back,  a  two-Judge  Bench  in

Mohanlal Shamji Soni v. Union of India and another16 has

held that:-

“Section 311 is an almost verbatim reproduction of  Section  540  of  the  old  Code  except  for  the insertion  of  the  words  ‘to  be’  before  the  word ‘essential’  occurring  in  the  old  section.  This section is  manifestly  in  two  parts.  Whereas  the word used in the first part is ‘may’ the word used in the second part is ‘shall’. In consequence, the first  part  which  is  permissive  gives  purely discretionary authority to the Criminal Court and enables it ‘at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely,

(1) to summon any person as a witness, or (2)  to  examine  any  person  in  attendance,

though not summoned as a witness, or (3) to recall and re-examine any person already

examined. 8. The second part which is mandatory imposes

an obligation on the court — (1) to summon and examine, or (2) to recall and re-examine any such person if

his  evidence appears to be essential  to  the just decision of the case.

9.  The very usage of  the words such as ‘any court’,  ‘at any stage’, or ‘of any enquiry, trial or other  proceedings’,  ‘any  person’  and  ‘any  such person’  clearly  spells  out  that  this  section  is expressed in the widest possible terms and do not limit  the  discretion  of  the  court  in  any  way. However, the very width requires a corresponding caution  that  the  discretionary  power  should  be invoked as the exigencies of  justice require and exercised  judicially  with  circumspection  and consistently with the provisions of the Code. The second part of the section does not allow for any

16 AIR 1991 SC 1346

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discretion but it binds and compels the court to take any of  the aforementioned two steps if  the fresh evidence to be obtained is essential  to the just decision of the case.”

[Emphasis added]

The aforesaid passages make it  abundantly  clear about

the broad applicability of the provision and the role of the court

in two distinct situations.   

27. In  the  said  authority  the  Court  referred  to  the  earlier

pronouncements in  Rameshwar Dayal and others v. State

of  Uttar  Pradesh17,  State  of  West  Bengal  v.  Tulsidas

Mundhra18,  Jamatraj  Kewalji  Govani  v.  State  of

Maharashtra19 and proceeded to opine that:-  

“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 the examination of  any person which would  depend on the  facts and circumstances of each case.”

[Emphasis supplied]

17 (1978) 2 SCC 518 18 (1963) 2 SCJ 204 19 AIR 1968 SC 178

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It is important to note here in the said case, it was also

observed that:-

“Though  Section  540  (Section  311  of  the  new Code) is, 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 they  should  be  exercised,  that  power  is circumscribed  by  the  principle  that  underlines Section  540,  namely,  evidence  to  be  obtained should  appear  to  the  court  essential  to  a    just decision of the case   by getting at the truth by all lawful  means.  Therefore,  it  should  be  borne in mind  that  the  aid  of  the  section  should  be invoked  only  with  the  object  of  discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper  or  capricious exercise  of the  power  may  lead  to  undesirable  results. Further it is incumbent that due care should be taken  by  the  court  while  exercising  the  power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused  or  to  give  an  unfair  advantage  to  the rival  side and  further  the  additional  evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties”.

[Underlining is by us]

28. In Rajendra Prasad v. Narcotic Cell20 occasion arose to

appreciate  the  principles  stated  in  Mohanlal  Shamji  Soni

(supra).  The two-Judge Bench took note of the observations

20 (1999) 6 SCC 110

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made  in  the  said  case  which  was  to  the  effect  that  while

exercising the power under Section 311 of CrPC, the court shall

not  use  such  power  “for  filling  up  the  lacuna  left  by  the

prosecution”.  Explaining  the  said  observation  Thomas,  J.

speaking for the Court observed:-

“Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case,  but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting  errors.  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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”

[Emphasis added]

After  so  stating  the  two-Judge  bench  referred  to  the

exigencies of the situation and the ample power of the court as

has been laid in  Mohanlal Shamji Soni (supra) and further

referred to the authority in Jamatraj Kewalji Govani (supra)

and opined thus:-

“We cannot therefore accept the contention of the appellant  as  a  legal  proposition  that  the  court cannot  exercise  power  of  resummoning  any witness if once that power was exercised, nor can

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the power be whittled down merely on the ground that the prosecution discovered laches only when the  defence  highlighted  them  during  final arguments.  The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just  decision. The  steps  which  the  trial  court permitted  in  this  case  for  resummoning  certain witnesses  cannot  therefore  be  spurned down or frowned at.”

[Emphasis supplied]

29. The  aforesaid  decision  has  to  be  appropriately

understood.   It  reiterates  the  principle  stated  in  Mohanlal

Shamji  Soni’s  case.   It  has  only  explained  the  sphere  of

lacuna by elaborating the same which has taken place due to

oversight  and  non-production  of  material  evidence  due  to

inadvertence.  It is significant to note that it has also reiterated

the principle that such evidence is necessary for a just decision

by the Court.  

30. In  U.T.  of  Dadra  &  Nagar  Haveli  and  another  v.

Fatehsinh Mohansinh Chauhan21, the Court was dealing with

an order passed by the High court whereby it had allowed the

revision and set  aside the  order  passed by the learned trial

judge who had exercised the power under Section 311 CrPC to

summon certain witnesses.  The Court referred to the earlier

21 (2006) 7 SCC 529

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authorities and ruled that it is well settled that the exercise of

power under Section 311 CrPC should be resorted to only with

the object of finding out the truth or obtaining proper proof of

such facts which lead to a just and correct decision of the case,

as it is the primary duty of a criminal court. Calling a witness

or re-examining a witness already examined for the purpose of

finding out the truth in order to enable the court to arrive at a

just  decision  of  the  case  cannot  be  dubbed  as  “filling  in  a

lacuna  in  the  prosecution  case”  unless  the  facts  and

circumstances of the case make it apparent that the exercise of

power by the court would result in causing serious prejudice to

the accused resulting in miscarriage of justice.  Be it stated, in

the said case the court came to held that summoning of the

witnesses was necessary for just and fair decision of the case

and accordingly it allowed the appeal and set aside the order

passed by the High court.

31. In  Rajaram  Prasad  Yadav  v.  State  of  Bihar  and

another22, the Court after referring to Section 311 CrPC and

Section  138  of  the  Evidence  Act  observed  that  Section  311

CrPC vest  widest  powers in the  court  when it  comes to  the

22 (2013) 14 SCC 461

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issue of summoning a witness or to recall or re-examine any

witness  already examined.   Analysing further  with regard to

“trial”,  “proceeding”,  “person  already  examined”,  the  Court

ruled that invocation of Section 311 CrPC 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. The Court observed

that  the  power  vested  under  the  said  provision  is  made

available to any court at any stage in any inquiry or trial or

other proceeding initiated under the Code for the purpose of

summoning  any  person  as  a  witness  or  for  examining  any

person in attendance, even though not summoned as witness

or to recall or re-examine any person already examined. Insofar

as  recalling  and  re-examination  of  any  person  already

examined is  concerned,  the  court  must  necessarily  consider

and ensure that such recall and re-examination of any person,

appears in the view of  the court to be essential  for the just

decision of the case.  The learned Judges further ruled that the

paramount requirement is just decision and for that purpose

the essentiality of a person to be recalled and re-examined has

to be ascertained.  It was also stated that while such a widest

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power is invested with the court, exercise of such power should

be made judicially and also with extreme care and caution.

32. The Court referred to the earlier decisions and culled out

certain principles which are to be kept in mind while exercising

power  under  Section  311  CrPC.   We  think  it  seemly  to

reproduce some of them:-

“17.2.  The  exercise  of  the  widest  discretionary power  under  Section  311  CrPC  should  ensure that  the  judgment  should  not  be  rendered  on inchoate,  inconclusive  and  speculative presentation  of  facts,  as  thereby  the  ends  of justice would be defeated.

17.3. If  evidence  of  any witness  appears  to  the court  to be essential  to  the just  decision of  the case, it is the power of the court to summon and examine  or  recall  and  re-examine  any  such person.

17.4.  The  exercise  of  power  under  Section  311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5.  The exercise  of  the  said  power  cannot  be dubbed  as  filling  in  a  lacuna  in  a  prosecution case, unless the facts and circumstances of  the case make it apparent that the exercise of power by  the  court  would  result  in  causing  serious prejudice to the accused, resulting in miscarriage of justice.

17.6.  The  wide  discretionary  power  should  be exercised judiciously and not arbitrarily.

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17.7. The court must satisfy itself that 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.

x x x x x x x x x

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 be safe  to  err  in  favour  of  the  accused  getting  an opportunity  rather  than  protecting  the prosecution against possible prejudice at the cost of  the  accused.  The court  should  bear  in  mind that  improper  or  capricious  exercise  of  such  a discretionary  power,  may  lead  to  undesirable results.

x x x x x x x x x

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet  the  ends  of  justice  for  strong  and  valid reasons  and  the  same  must  be  exercised  with care,  caution  and  circumspection.  The  court should  bear  in  mind  that  fair  trial  entails  the interest of the accused, the victim and the society and,  therefore,  the  grant  of  fair  and  proper opportunities to the persons concerned, must be

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ensured being a constitutional goal, as well as a human right.”

[Emphasis supplied]

33. Recently  in Shiv  Kumar  Yadav  (supra),  the  Court

reproduced  the  principles  culled  out  in  Rajaram  Prasad

Yadav’s  case  and  thereafter  referred  to  the  authority  in

Hoffman Andreas (supra) wherein it has been laid down that:-

“The counsel who was engaged for defending the appellant  had  cross-examined  the  witnesses  but he  could  not  complete  the  trial  because  of  his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. 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”.

The Court in  Shiv Kumar Yadav (supra) case explained

the said authority by opining thus:-

“15. …..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

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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. The witnesses cannot be expected to  face  the  hardship  of  appearing  in  court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.”

We respectfully agree with the aforesaid exposition of law.  

34. Keeping  in  mind  the  principles  stated  in  the  aforesaid

authorities  the defensibility  of  the order  passed by the High

Court  has  to  be  tested.  We  have  already  reproduced  the

assertions made in the petition seeking recall of witnesses.  We

have,  for  obvious  reasons,  also  reproduced certain  passages

from the trial court judgment.  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

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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  (supra) and  Fatehsinh Mohansinh Chauhan  (supra).

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 CrPC.

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.   

35. The heart of the matter is whether the reasons ascribed

by the  High Court  are  germane for  exercise  of  power under

Section 311 CrPC.  The criminal trial is required to proceed in

accordance with Section 309 of the CrPC. This court in Vinod

Kumar  v.  State  of  Punjab23,  while  dealing  with  delay  in

examination and cross-examination was compelled to observe

thus:-

“If one is asked a question, what afflicts the legally requisite  criminal  trial  in  its  conceptual eventuality  in  this  country the  two reasons that

23  (2015) 3 SCC 220

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may earn the status of  phenomenal  signification are,  first,  procrastination  of  trial  due  to non-availability  of  witnesses when the trial  is  in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable  reasons  for  acceptation  of  such prayers  for  adjournments  by  the  trial  courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed  into  malignancy.  What  was  a mere disturbance once has become a disorder, a diseased one, at present”.

And again:-

“The duty of the court is to see that not only the interest of the accused as per law is protected but also  the  societal  and  collective  interest  is safeguarded. It is distressing to note that despite series  of  judgments  of  this  Court,  the  habit  of granting  adjournment,  really  an  ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort. …”  

36. Yet again, in  Gurnaib Singh v. State of Punjab24,  the

agony was reiterated in the following expression:-

“We  have  expressed  our  anguish,  agony  and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the  interpretation placed by  this  Court  and not be guided by their own thinking or should not become  mute  spectators  when  a  trial  is  being conducted by allowing the control to the counsel for the parties. They have their roles to perform.

24  (2013) 7 SCC 108

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They  are  required  to  monitor.  They  cannot abandon their responsibility. It should be borne in mind  that  the  whole  dispensation  of  criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot afford to bring any kind of disrespect to fairness of trial  by  taking  recourse  to  subterfuges  for procrastinating the same.”

37. There is a definite purpose in referring to the aforesaid

authorities.   We  are  absolutely  conscious  about  the  factual

matrix in the said cases.  The observations were made in the

context  where  examination-in-chief  was  deferred  for  quite  a

long time and the procrastination ruled as the Monarch.  Our

reference to the said authorities  should not  be construed to

mean that Section 311 CrPC should not be allowed to have its

full play.  But, a prominent one, the courts cannot ignore the

factual score.  Recalling of witnesses as envisaged under the

said statutory provision on the grounds that accused persons

are in custody, the prosecution was allowed to recall some of

its  witnesses  earlier,  the  counsel  was  ill  and  magnanimity

commands fairness should be shown, we are inclined to think,

are  not  acceptable  in  the  obtaining  factual  matrix.   The

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decisions which have used the words that the court should be

magnanimous, needless to give special emphasis, did not mean

to  convey  individual  generosity  or  magnanimity  which  is

founded on any kind of fanciful notion.  It has to be applied on

the basis of judicially established and accepted principles.  The

approach may be liberal but that does not necessarily mean

“the  liberal  approach”  shall  be  the  rule  and  all  other

parameters shall become exceptions.   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 CrPC.  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

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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.   The  accused  persons  had

engaged counsel of their choice.  In such a situation recalling of

witnesses  indubitably  cannot  form  the  foundation.   If  it  is

accepted as a ground, there would be possibility of a retrial.

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

CrPC 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.   In this regard, we are obliged to

observe that the High Court has failed to appreciate that the

witnesses  have  been  sought  to  be  recalled  for  further

cross-examination to elicit certain facts for establishing certain

discrepancies; and also to be given certain suggestions.  We are

disposed to think that this kind of plea in a case of this nature

and  at  this  stage  could  not  have  been  allowed  to  be

entertained.  

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38. At this juncture, we think it apt to state that the exercise

of power under Section 311 CrPC 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.  Suffice it

to say, a criminal trial does not singularly centres around the

accused.   In  it  there  is  involvement  of  the  prosecution,  the

victim and the victim represents the collective.  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.  We have

already  explained  the  use  of  the  words  “magnanimous

approach” and how it should be understood.  Regard being had

to the concept of balance, and weighing the factual score on the

scale of balance, we are of the convinced opinion that the High

Court has fallen into absolute error in axing the order passed

by the learned trial Judge.  If we allow ourselves to say, when

the  concept  of  fair  trial  is  limitlessly  stretched,  having  no

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boundaries,  the  orders  like  the  present  one  may  fall  in  the

arena of sanctuary of errors.  Hence, we reiterate the necessity

of doctrine of balance.  

39. In view of the proceeded analysis we allow the appeals, set

aside the order passed by the High Court and restore that of

the learned trial Judge.  We direct the learned trial judge to

proceed with the trial in accordance with the law.  

…………………….J. [Dipak Misra]

…………………….J. [Uday Umesh Lalit]

New Delhi August 24, 2016