Section 311 Cr.P.C.- Mere Change Of Counsel Cannot Be A Ground To Recall Witnesses: Delhi High Court

The Delhi High Court has held that a mere change of counsel would not suffice to recall witnesses to put certain suggestions in the manner the new counsel desires. Rejecting an application under Section 311 of Cr.P.C, Justice Yogesh Khanna noted that since considerable delay has taken place, the victim's plight also cannot be ignored while making a decision. He also placed emphasis on the conscious decision of the former counsel to not examine the said victim, referring to a catena of judicial precedents.

Background

This petition challenges an order of the Trial Court whereby an application of the petitioner under Section 311 Cr. P.C was dismissed.

Senior Advocate N. Hariharan, appearing on behalf of the petitioner, argued that the former counsel has chosen not to cross-examine one of the key victims despite his opportunity. The said victim is an Investigating Officer who prepared the second charge sheet, where the accused was not named. After the appointments of a new counsel, he was of the opinion that the examination of the said witness was necessary, and thus an application under Section 311 Cr. P.C was moved. However, the trial court dismissed the same with the following reasons:

"The change of counsel and the decision of the new counsel to cross-examine any witness who the previous counsel did not cross-examine is no ground to exercise power u/s 311. CrPC for recalling the witness where due opportunity was afforded earlier. Lastly, this is a criminal trial and not a game where, if one party were afforded an opportunity for recalling any witness for valid reasons, the other party would ask for chance as a matter of right without any reason. Accordingly, considering the totality of the circumstances, this Court is not inclined to exercise power u/s 311 CrPC to recall PW~38 as no justifiable grounds exists for the same. Application is accordingly dismissed."

The petitioner further argued that they require only a day to cross-examine the said witness to bring the facts before the Court for a just adjudication of the matter.

Senior Advocate Dayan Krishnan, appearing on behalf of the state, argued that the petitioner's argument is nothing but a ploy to delay the matter further. It is further submitted that the said witness was cross-examined by each accused except for the present petitioner, who had consciously chosen not to examine the witness.

Findings

The Court noted the delay in the present matter, which has been ongoing since 2006. It further inquired into the intention of the accused to file such an application under Section 311 Cr. P.C was at a deeply belated stage when the final arguments had started.

The Court noted that the power under Section 311 Cr. P.C is to be exercised only for solid and valid reasons; there can be no parity in deciding such an application. It further mentioned that the former counsel consciously chose not to examine the present witness among 18 other witnesses. Therefore, to recall the said witness because the former counsel failed to do so is not a ground for exercising discretion under Section 311 Cr.P.C.

The Court referred to State (NCT of Delhi) v. Shiv Kumar Yadav & Anr. (2016) where it was held that,

"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 e before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature, in its wisdom, has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case."

Furthermore, it was discussed that in Girish v. State of Uttar Pradesh (2020) and Veerendradas Bairagi v. Shreekant Bairagi (2019), it had been held that the subsequently engaged counsel could not seek one more opportunity as a matter of right to delay the issues further.

Title: Sushil Ansal v. State of NCT Delhi

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