Mere change of counsel cannot be a ground to recall witnesses #indianlaws

 As per both, Section 311 CrPC and Section 138 Evidence Act for the purposes of criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. 

The question before the Apex Court in the present appeals was whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (CrPC) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses?

In the instant matter wherein trial was being conducted under Section 376 of the Indian Penal Code (IPC), after the statement of accused was recorded, an application was moved for recalling the prosecutrix and one formal witness which however was rejected. This order was never challenged. Thereafter the accused who till now was represented by counsel through legal aid engaged another counsel, who filed another application for recall of all the prosecution witnesses. This application was dismissed by the trial court but was allowed by the High Court vide impugned order. As observed in the order, it was held that recall of certain witnesses was deemed proper to ensure fair trial.

It was observed that the object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is however not possible to lay down precise situations when such power can be exercised and the Legislature also in its wisdom has left the power undefined. The scope of the power thus has to be considered from case to case.

Under Section 311 CrPC widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. Section 138 of the Evidence Act prescribes the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. As per both, Section 311 CrPC and Section 138 Evidence Act for the purposes of criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the 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 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. Therefore, 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. However, the exercise of such power should be made judicially and also with extreme care and caution.

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. 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. The exercise of such 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. The wide discretionary power should be exercised judiciously and not arbitrarily.

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. 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.

Court thus should not routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant.

The principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in It was held that the plea of the accused that the counsel representing him earlier was incompetent, being a novice and that he is entitled to recall all the prosecution witnesses now that he has engaged a new counsel was held to be not sustainable. His earlier counsels were recently enrolled with the bar, however, as held by Court competence of a Lawyer is subjective and the date of his enrolment with the Bar Council cannot be said to be a yardstick to measure his competence.

In the instant matter not a single specific reason was assigned by the High Court as to how in the present case recall of witnesses was necessary as was directed in the impugned order. No fault was found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. The same was held as not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings.

Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall.  Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial.

The Apex Court allowed the present appeal with the following observations:

1. The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap;
2. No finding could be recorded that the counsel appointed by the accused were incompetent particularly behind his back ;
3. Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;
4. The trial Court as well as the High Court rejected the reasons for recall of the witnesses;
5. The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;
6. Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;
7. Mere change of counsel cannot be ground to recall the witnesses;
8. There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;
9. The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;
10. There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.

[AG vs. Shiv Kumar Yadav & Anr. ]

(SC, 10.09.2015)

Criminal Appeal Nos. 1187-1188 of 2015