Lack Of Knowledge And Experience Of Lawyer Not A Ground For Recalling Witnesses: Madhya Pradesh HC [Read Order]

The Madhya Pradesh High Court recently reiterated that the incompetence of a lawyer cannot be a ground for recalling witnesses under Section 311 of the Code of Criminal Procedure.

The Court was hearing a criminal revision petition challenging an order passed by the Additional Sessions Judge, Gwalior, who had rejected an application for recalling a witness on the ground that the Counsel was "experienced enough to ask pertinent questions ought to have been asked thereby prejudicing the case of defence".

Justice Sheel Nagu refused to allow the petition relying on the judgment rendered by the Supreme Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav and Another, (2016) 2 SCC 402, wherein it was observed,

"The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. 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.

The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the authorities concerned including the Law Commission and the Bar Council of India."