UBER Case; Mere change of counsel cannot be ground to recall the witnesses; SC issues Guidelines relating to re-examination of Witnesses [Read the Judgment]

A two Judge bench of  Supreme Court of India comprising of Justice J S Khehar and Justice Adarsh Kumar Goel yesterday set aside the order of Delhi High Court which permitted the accused to re-examine Twelve prosecution witnesses, including the victim girl in the sensational UBER rape Case. [See the LiveLaw report here]

In the Judgment Justice Goel had elaborately discussed the scope and ambit of Section 311 of Code of Criminal Procedure 1973.

“The accused is entitled to be  represented  by  a counsel of his choice, to be provided  all  relevant  documents,  to  cross-examine the prosecution witnesses and to lead evidence in his defence.   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  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 Bench said.

The Court relied on another Two Judge Bench Judgment of the Supreme Court in Rajaram Prasad Yadav vs. State  of  Bihar in which the principles relating to S.311 Cr.P.C were summarised as follows;

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

c) 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.

d) The exercise of power under Section 311 Cr.P.C. 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.

e) 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.

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

g) 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.

h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

j) Exigency of the situation, fair play and good sense should be the safe guard, 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.

k) 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.

l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

n) The power under Section 311 Cr.P.C. 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 ensured being a constitutional goal, as well as a human right.

Applying the above principles in the present Case, the Court  held that “It is  difficult  to  approve  the  view  taken  by  the  High  Court. Undoubtedly, fair trial is the objective and it is the duty of the court  to ensure such fairness.  Width of power under Section 311  Cr.P.C.  is  beyond any doubt. Not a single specific reason has been assigned by the High  Court as to how in the present  case  recall  of  as  many  as  13  witnesses  was necessary as directed in the impugned order.  No fault has been  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.  It is 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.  Certainly  recall  could  be  permitted  if essential for the just decision but not on such consideration  as  has  been adopted in the present case.  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.    Having   regard   to   these considerations, we  do  not  find  any  ground  to  justify  the  recall  of witnesses already examined”.

Finally the Bench summarised the reasons for disapproving the view taken by the High Court as follows;

(i)   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;

(ii)  No finding could  be  recorded  that  the  counsel  appointed  by  the accused were incompetent particularly at back of such counsel;

(iii)      Expeditious trial in a heinous offence  as  is  alleged  in  the present case is in the interests of justice;

(iv)  The trial Court as well as the High Court  rejected  the  reasons  for recall of the witnesses;

(v)   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;

(vi)  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;

(vii) Mere change of counsel cannot be ground to recall the witnesses;

(viii)      There is no basis for holding that any prejudice will be  caused to the accused unless the witnesses are recalled;

(ix)  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  indealing with the grounds for recall, i.e., denial  of  fair  opportunity  on account of incompetence of earlier counsel  or  on  account  of  expeditious proceedings;

(x)   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.

Read the Judgment here.