Supreme Court of India
STATE OF HARYANAversusRAM MEHAR & OTHERS ETC. ETC.
- Citation
- 2016 INSC 616
- Decided
- 24 August 2016
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The Supreme Court held that the High Court erred in allowing the recall of witnesses; the trial court's refusal was correct as the recall was not essential for a just decision.
Summary
The State of Haryana prosecuted 148 workers for offences including murder arising from a factory fire. After the prosecution examined 102 witnesses and the accused gave statements under Section 313 CrPC, the defence sought recall of several prosecution witnesses under Section 311 CrPC, alleging that the lead counsel had been critically ill and important questions on weapons and injuries were missed. The trial court rejected the recall, but the High Court allowed it, invoking the concept of a fair trial and magnanimity. On appeal, the Supreme Court held that the witnesses had already been fully examined, the grounds pleaded did not make recall essential for a just decision, and allowing it would risk a de‑novo retrial. The Court emphasized that the discretion under Section 311 must be exercised with caution and that the fair‑trial doctrine is not a limitless justification for recalling witnesses. Consequently, the Supreme Court set aside the High Court order and restored the trial court's decision, directing the trial to proceed without further recall.
Issues considered
- The scope of discretion under Section 311 CrPC to recall and re‑examine witnesses at a late stage of trial.
- Whether the alleged illness of defence counsel and alleged missed cross‑examination questions constitute sufficient ground to permit recall of witnesses.
- Whether the principle of a fair trial can justify recalling witnesses despite the prosecution having already examined them.
- Whether recalling witnesses would prejudice the prosecution, victims, or lead to a de‑novo retrial.
Legislation cited
- Code of Criminal Procedure, 1973s. 231(2), s. 309, s. 311, s. 313, s. 482
- Indian Evidence Act, 1872s. 172(2)
Subjects
fair trialSection 311 CrPCrecall of witnessescriminal procedureright to defencespeedy trialmagnanimityjudicial discretiontrial fairness
Judgment
[2016] 5 S.C.R. 172
A STATE OF HARYANA
v.
RAM MEHAR & OTHERS ETC. ETC.
(Criminal Appeal Nos. 805-806 of2016)
B AUGUST 24, 2016
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 1973: s.311 - Scope and ambit
of - Petition by accused u/s. 311 for recalling of witnesses - Trial
court held that when the material questions had already been put,
c there was no point to entertain the application and mere change of
the counsel could not be co11sidered as a grou11d to allow the
application for recalling the witnesses for fi1rther cross-examinatio11
- Petitio11 uls.482 011 the ground that the leadi11g.counsel for defe11ce
was critically ill during the trial and certain important questio11S,
D suggestions with respect to i11dividual roles a11d i11juries sustai11ed
and the weapon used etc. had not been put to the wit11esses - High
Court, allowed the petitions holding that a case for recalli11g was
made out to ensure grant of fair opportunity to defend and uphold
the concept offair trial - On appeal, held: Jn the case at hand, the
prosecution had examined all the witnesses - The statements of all
E
the accused persons, that is 148 i11 11u111ber. had been recorded uls.
313 - The defence had exami11ed 15 witnesses - Number of lawyers
were e11gaged by the defence - The accused persons had e11gaged
counsel of their choice - Jn such a situation recalling of witnesses
indubitably cannot form the foundation - High Court was persuaded
F 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 certai11 aspects - Jn this regard,
High Court 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
G
suggestions - This kind of plea in a case of this nature and at this
stage could not have been allowed to be entertained.
Natura/justice: Fair trial-Held: 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 can claim absolute
H
172
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 173
predominance over the other. A
Allowing the appeals, the Court
HELD: 1. The concept of the fair trial is not rigid and there
cannot be any strait-jacket formula for applying the same. On
occasions it has the necessary flexibility. It is because fair trial
in its ambit requires fairness to the accused, the victim and the B
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. There should be passion for doing
justice but it must be coinmanded by reasons and not propelled
by any kind of vague instigation. It would be dependent on the c
fact situation; established norms and recognized principles and
eventual appreciation of the factual scenario in entirety. 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 D
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. [Para 24)[191-D-H]
Bablu Kumar and others v. State of Bihar and another . E
2015 (8) SCR 512 : (2015) 8 SCC 787; Sidhartha
Vashisht alias Manu Sharma v. State (NCT of Delhi)
2010 (4) SCR103: (2010) 6 SCC 1; State of Karnataka
v. K. Yarappa Reddy 1999 (3) Suppl. SCR 359 : (1999)
8 SCC 715; J. Jayala!ithaa and others v. State of F
Karnataka and others (2014) 2 SCC 401 - relied on.
2. Recalling of witnesses as envis11ged u/s.311 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 are G
not acceptable in the obtaining factual matrix. The decisions
which have used the words that the court should be magnanimous,
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
H
174. SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
dangerous. In the case at hand, the prosecution had examined
all the witnesses. The singular ground which prominently comes
to surface is that the earlier counsel who was engaged by the
defence had not put some questions and failed to put some
questions and give certain suggestions. It has come on record
c 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. The High Court has been persuaded by the submission
that recalling of witnesses and their cross-examination would not
D
take much time and that apart, the cross-examination could be
restricted to certain aspects. In this regard, 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 discrep_ancies; and also to be given certain
E suggestions. This kind of plea in a case of this nature and at this
stage could not have been allowed to be entertained. [Para
35][202-B-H; 203-A-BJ
Mohan/al Shamji Soni v. Union of India and another
AIR 1991 SC 1346 : 1991 (1) SCR 712 ; Rameshwar
F Dayal and others v. State of Uttar Pradesh 1978 (3)
SCR 59 : (1978) 2 SCC 518; State of West Ben~al v.
Tulsidas Mundhra (1963) 2 SCJ 204; Jamatraj Kewalji
Govani v. State of Maharashtra AIR 1968 SC 178 :
1967 SCR 415; Rajendra Prasad 1i Narcotic Cell 1999
(3) SCR 818 : (1999) 6 SCC 110; U. T. of Dadra &
G Nagar Haveli and another v. Fatehsinh Mohansinh
Chauhan 2006 (4) Suppl. SCR 522 : (2006) 7 SCC
529 - relied on.
3. The exercise of power .u/s.311 CrPC can be sought to be
invoked either by the prosecution or by the accused persons or
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 175
by the Court itself. The High Court has been moved by the A
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. A
criminal trial does not singularly centres around the accused. In
it there is involvement of the prosecution, the victim and the
8--
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 he struck. The High Court has fallen into absolute
error in axing the order passed by the trial Judge. (Para 38] (203- c
C-F]
Rajaram Prasad Yadav v. State of Bihar and another
2013 (7) SCR 420 : (2013) 14 SCC 461; Vinod Kumar
v. State of Punjab 2015 (1) SCR 504 : (2015) 3 SCC
220; Gurnaib Singh v. State of Punjab 2013 (3) D
SCR563 : (2013) 7 SCC 108 - relied on.
Hoffman Andreas v. Inspector of Customs Amritsar
(2000) 10 SCC 430; P. Chhaganlal Daga v. M Sanjay
Shaw (2003) 11 SCC 486; P. SaY!jeeva Rao v. State of
Andhra Pradesh 2012 (6) SCR 787 : (2012) 7 SCC E
56; Natasha Singh v. Central Bureau of Investigation
(State) 2013 (5) SCR 539 : (2013) 5 SCC 741; State
(NCT of Delhi) v. Shiv Kumar Yadav and another 2015
(10) SCR 455 : (2016) 2 SCC 402; Maneka Sanjay
Gandhi and another v. Rani Jethmalani 1979 (2) SCR
378 : (1979) 4 SCC 167; Ram Chander v. State of F
Haryana 1981 (3) SCR 12 : (1981) 3 SCC 191;
Sessions Judge, Ne/lore v. Intha Ramana Reddy 1972
Cri LJ 1485; Rattirmi1 and others v. State of Madhya
Pradesh 2012 (3) SCR 496 : (2012) 4 SCC 516 -
referred to. G
Case Law Reference
(2000) 10 sec 430 referred to Para 9
(2003) 11 sec 486 referred to Para 9
2012 (6) SCR 787 referred to Para 9
H
176 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 2013 (5) SCR 539 referred to Para9
2015 (10) SCR 455 referred to Para9
1979 (2) SCR 378 referred to Para 17
1981 (3) SCR 12 referred to Para 19
B 1972 Cri LJ 1485 referred to Para 19
2012 (3) SCR 496 referred to Para 21
(2014) 2 sec 401 relied on Para 22
2015 (8) SCR 512 relied on Para23
c 2010 (4) SCR103 relied on Para23
1999 (3) Suppl. SCR 359 relied on Para23
1991 (1) SCR 712 relied on Para26
1978 (3) SCR 59 relied on Para27
D
(1963) 2 SCJ 204 relied on Para 27
1967 SCR 415 relied on Para 27
1999 (3) SCR 818 relied on Para28
2006 (4) Suppl. SCR 522 relied on Para30
E
2013 (7) SCR 420 relied on Para 31
2015 (1) SCR 504 relied on Para35
2013 (3 ) SCR 563 relied on Para36
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 805-806 of2016.
From the Judgment and Order dated 09.03.2016 of the High Court
of Punjab and Haryanaat Chandigarh in CRM-MNo. 482 of2016 and
in CRM-M No. 484 of2016.
G Tushar Mehta, ASG, Vikas Pahwa, Sr. Adv.,Alok Sangwan, AAG,
Astha Sharma, Aditya Dogra, Dr. Monika Gusain, Advs. for the
Appellant.
R. S. Cheema, Ms. Rebecca John, Sr. Advs., Ms. Vrinda Grover,
Tarannum Cheema, Harsh Bora, Ratna, Sanjay Jain, Advs. for the
H Respondents.
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC., 177
The Judgment of the Court was delivered by A
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.
484of2016 whereby the learned single Judge in exercise of the power
under Section 482 of the Code of Criminal Procedure (for short "CrPC") B
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 seeking recall of the witnesses under Section 311
read with Section 231(2) CrPC.
2. To appreciate the controversy that has emanated in these c
appeals, it is obligatory to state tlie 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
MI 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 D
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 prosecutiori further unfurl, the exhortation continued for quite a length
of time. All kind of attempts were made to bum alive the officials of the
management. During this pandemonium, the entire office was set on E
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 officials. Despite the obstruction, the officials
were saved by the police and the fire was brought under control by the F
fire brigade. In the incident where chaos was the sovereign, Mr. Avnish
Dev, General Manager, Human Resources of the Company was burnt
alive. The ~aid 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 G
the competent court which, in tum, 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/ 20 II I 20B/ 34/ 325/ 381 & 382 IPC.
H
178 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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
B
rejected upto the High Court, some accused persons moved this Court
by filing Special Leave Petition (Criminal) Nos. 9881-9882 of2013 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
c witnesses, the State proposes to examine and approximately
how much time it will take. Mr. K.T.S. Tutsi, 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
D 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
E feel that it would be appropriate to give directions to the
learned Sessions Judge to dispose of the trial as
exped!tiously as possil:>l.e. 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
F 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
G learned Sess.ions Judge to examine all the eye-witnesses
by30.4.2014. Needlesstosaythatit will be open tothe
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
H opinion."
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 179
[DIPAK MISRA, J.]
4. To continue the narrative in chronology, on 13.02.2015, Salil A
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.
B
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-I, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3,
Birendra Prasad, PW-5, Salil Bihari Lal, PW-8, Vikram Sarin, PW-I 0,
Deepak Anand, PW-29 and DSP Om Prakash, PW-99. In respect of c
DeepakAnand, 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 D
and circumstances pertaining to how the incident took place. That apart,
it was 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 µersons to put forth certain aspects of the investigation, E
particularly_\\'.jth 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 stat~d in the application:-
"6. That the cross-examination proposed to be undertaken
by the defence will be limited to the aspect of injuries F
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 G
cross-examination of these witnesses on the dates on which
they appear, or such further dates as decided by this Hon 'ble
Court.
H
180 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
satisfactorily put to the prosecution witnesses in question.
9. That the trial was essentially conducted by Sh. R.S.
Hooda, Advocate, who was sufferingfrom a critical illness
throughout the trial, and on numerous occasions, despite
his valiant effort and intentions, the above aspects were
c 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.
D 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
E 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
F to state the law laid down by this Cour.t 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
G almost the same apart from some additional ground which we think
appropriate to r@produce:-
"7. That the trial was eS'sentially conducted by Sh. R. S.
Hooda, Advocate, who was suffering from a critical illness
throughout the trial, and on numerous occasioJlS, despite
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 181
[DIPAK MISRA, J.]
his valiant efforts and intentions, the above aspects were A
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.
B
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 c
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 D
learned counsel for the defence and the prosecution and observed that:-
"7. The present application has been moved at a vezy belated
stage at a time when I 02 prosecution witnesses have already
been examined during this trial in which larger number of
148 accused are involved and they have been examined E
way back as prosecution evidence was concluded on 2.3.1 S.
Long time was consumed for recording the statements of
the accused under section 313 Cr.P.C. and forthe 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 IS F
defence witnesses have been examined so· far. At this·
juncture it may be recalled that Hon'ble Supreme Court
has directed this court to decide this trial expeditiously.
x x x x x x x
G
9. Nothing has been explained as to what are the left out
questiqns 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
H
182 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
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
c 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
D
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
E 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 expected to be fair to both the parties and
its duty is also to ensure that the process oflaw is not abused
by either of them for extraneous reasons. The speedy trial
F is essence ofjustice 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. Aft~r so stating, the learned trial Judge referred to the authorities
in Hoffman Andreas v. Inspector of Customs Amritsar 1, P.
G Chhaganlal Daga v. M. Sanjay Shaw1 , P. Sanjeeva Rao v. State of
Andhra Pradesh-', Natasha Singh v. Central Bureau of Investigation
1 (2000J 1o sec 430
2
(2003 l 11 sec 486
H '(2012) 1sec56
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 183
[DIPAK MISRA, J.]
(State)' and State (NCT of Del/ti) v. Sit iv Kumar Yadav and another' A
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 fmiher cross-examination. It
is worthy to note that two separate orders were passed by the trial court
B
but the analysis is almost the same.
I 0. Dissatisfied with the aforesaid orders, the accused persons
prererred CRM-M No. 482of2016 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,
c
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 D
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 E
Judge, referred to certain decisions by this Court including the recent
decision in Sltiv Kumar Yadav (supra) and came to hold that a case for
recalling had been made out to ensure grant of fair opportunity 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 I 02 witnesses regarding different roles, F
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 G
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
'(2013) s sec 741
'(2016) 2 sec 402
H
184 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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 s~tting up a new case or make the witnesses tum
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
B
behalf of the accused. It was observed that some of such omissions 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,
c 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
D
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
E 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
F 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 concluded. The order at P-8 is only in the context of
the right of the accused to seek bail. The reliance by the
G s
trial Court on AG Vs. Shiv Kumar Yadav 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
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 185
[DIPAK MISRA, J.]
almost to a denovo trial without any regard to the harassment A
and plight of the young vi~tim. 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."
B
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 c
resile from their earli_er 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 D
'the High Court really requires to be unsettled or deserves to be assented
to.
14. Mr. Tushar Mehta, learned Additional Solicitor General
appearing for the appellant-State ofHaiyana, criticiJ:ing the order of the
High Court, submits that Section 311 CrPC despite its width and broad E
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 F
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 Cr PC.
15. Mr. R.S. Cheema, learned senior counsel along with Mr. Sanjay G
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 grant of permission for recalling of witnesses so that in
H
186 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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
B
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
c 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.
D 16. Before we advert to the ambit and scope of Section 311 CrPC
and its attractability to the existing factual matrix, we 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.
E
17. A three-Judge Bench speaking through Krishna Iyer, J. in
Maneka Sanjay Gandhi and another v. Rani Jethma/ani6, though in
a different context, observed:-
" Assurance of a fair trial is the first imperative of the
F dispensation ofjustice 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
G 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 I 0 case. We have to lest the petitioner's grounds on
this touchstone bearing in mind the rule that normally the
• (1979) 4 sec 167
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 187
[DIPAK MISRA, J.]
complainant has the right to choose any court having A
jurisdiction and the accused cannot dictate when- the case
against him should be tried. Even so, the process ofj ustice
should not harass the parties and from that angle the court
may weigh the circumstances."
18. The aforesaid principle has been stated in the context of B
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 ~nd 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
c
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 ofHaryana 7, while speaking about
the presidingjudge in a criminal trial, Chinnappa Reddy, J. observed that
if a criminal court is to be an effective instrument in dispensingjustice, D
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 from Sessions Judge,
Nellore v. Intlla Ramana Reddy" which reads as follows:- E
"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 F
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 G
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."
, (1981) 3 sec 191
' 1972 Cri LJ 1485 H
188 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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 Prades/1 9
B 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 which would totally ostracise
c 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 Mangat
D Singh v. Kishan Singh' 0 wherein it has been observed
thus: (SCC p. 307, para 14)
"14 . ... Any inordinate delay in conclusion ofa criminal
trial undoubtedly has a highly deleterious effect on the
society generally, and particularly on the two sides of
E 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, 110 reason to give all
F
the benefits 011 account of the delay in trial to the
accused and to completely deny all justice to the
victim of the offence."
(Emphasis supplied)
61. lt is worth noting that the Constitution Bench in Iqbal
G Singh Marwah v. Meenakshi Manrah" (SCC p. 387,
para 24) though in a different context, had also observed
that delay in the prosecution of a guilty person comes to
• (2012) 4 sec 516
'" (2009) 11 sec 303
H " (2005) 4 sec 370
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 189
[DIPAK MISRA, J.]
his advantage as witnesses become reluctant to give A
evidence and the evidence gets lost.
62. We have referred to the aforesaid authorities to
illumine and elucidate that the delay in conclusion oftrial
has a direct nexus with the collective cry of the society
and the anguish and agony of an accused (quaere a B
victim). Decidedly, there has to be a fair trial and no
miscarriage of justice and under no circumstances,
prejudice should be caused to 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 c
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 D
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 E
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 j'urisprudence; the testimony of the victim is given
paramount importance. Sometimes it is perceived that it F
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 ofjustice or failure ofjustice."
G
22. In J. Jayalalitflaa and others v. State of Kamataka a11d
12
ot/1ers 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
"(2014) 2 sec 401 H
190 SUPREME COURT REPORTS [2016) 5 S.C.R.
A of the society. Thus, fair trial must be accorded to every accused in the
spirit of the 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
B
have a duty to maintain public confidence in the administration ofjustice
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:-
c "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
D innocent, the trial shou Id 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
E or.ly 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'etre
F in prescribing the time frame" for conclusion of the trial."
23. In Bablu Kumar mfr/ others v. State of Bihar and another 13
the Court referred to the authorities in Sidlwrtlw Vasilis/It alias Manu
Sharma v. State (NCT of Delhi)", Rattiram (supra), J. Jayalalithita
(supra), State of Kamataka v. K Yarappa Reddy and other decisions
1
;
G 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
" t201 sJ s sec 1s1
"(2010)6SCC I·
H 1, tl999J s sec 11s
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 191
[DIPAK MISRA, J.]
spectator or a mute observer when it presides over a trial. It is the duty A
of the c~urt 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
B
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 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 - c
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 D
occasions it has the necessary flexibi.Jity. Therefore, it cannot be attributed
or clothed with any kind ofrigidity 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 E
the effect potentiality to bring in an anarchical disorder in the conducting
of trial defying established legal norm. There should be passion for
doingjustice but it must be commanded 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 F
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 G
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,
H
192 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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. From the aforesaid it may not be understood
B
that it has been impliedly stated that the fair trial should not be kept on its
own pedestal. (t 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
c miscarriage ofjustice. And,justice, the queen ofall 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
D 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
E 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."
F 26. A quarter of a century back, a two-Judge Bench in Mohan/al
Sliamji Soni v. Union of India and anotller 16 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
G 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
1
H " AIR 1991 SC 1346
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 193
[DIPAK MISRA, J.]
or other proceedings' under the Code to act in one of the A
three ways, namely,
(I) to summon any person as a witness, or
(2) to examine any person in attendance, though not
summoned as a witness, or
B
(3) to recall and re-exam.ine any person already
examined.
8. The second part which is mandatory imposes an
obligation on the court-
( I) to summon and examine, or c
(2) to recall and re-exami_ne 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
D
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 E
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 discretion but it
binds and compels the court to take any of the
aforementioned two steps if the fresh evidence to be
F
obtained is essential to the just decision of the case."
fEmphasis addedl
The aforesaid passages make it abundantly clear about the broad
applicability of the provision and the role of the court in two distinct
situations. G
27. In the said authority the Court referred to the earlier
pronouncements in Ram.eshwar Dayal and others v. State of Uttar
Pradesh 17 , State of West Bengal v. Tulsidas Mundhra 18 , Jamatraj
17 (1978) 2 sec 518
IS (1963) 2 SCJ 204 H
194 . SUPREME COURT REPORTS [2016] 5 S.C.R.
A Kewalji Govani v. State of Maharashtra 19 and proceeded to opine
that:-
"The principle of law that emerges from the views expressed
by this Court in the above decisions is thatthe criminal court
has am le ower to summon an erson as a witness or
B ecall 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
c and circumstances of each case."
[Emphasis supplied]
It is important to note here in the said case, it was also observed
. that:- . .
D "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
E . 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
F fiicts for a just deCision of the case and it must be used
judicially and not capriciously or arbitrarily because any
improper or capricious exercise.ofthe power may lead to
undesirable results. Further it is incumbent that due care
should .be taken by the. court while exercising the power
G
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
1
H • AIR 1968 SC 178
STATE OF HARYANA v. RAM MEHAR: & OTHERS ETC. ETC. 195
[DIPAK MISRA; J.]
not be received as a disguise for a retrial or to change the .A
nature of the case against either of the parties".
[Underlining is by us]
28. In Rajendra Prasad v. Narcotic Ce/Po occasion arose to
appreciate the principles stated in Mohan/a/ Shamji Soni (supra). The
two-Judge Bench took note of the observations made in the said case B
which was to the effect that while exercising the power under Section
311 ofCrPC, the court shall not use such power"forfilling 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 c
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 partv in a trial can be foreclosed D
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 E
declare who among the parties performed better."
fEmphasis addedl
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 F
Mohan/al S/1amji Soni (supra) and further referred to the authority in
Ja1J1alra] Kewa,;; 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
G
exercised, nor can the power be whittled down merely on
the ground that the prosecution discovered )aches only when
the defence highlighted them during final arguments. The
power of the court is plenary to summon or even recal I any
"' (1999) 6 sec 110 H
196 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 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]
B 29. The aforesaid decision has to be appropriately understood. It
reiterates the principle stated in Mohan/a/ Shamii 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
c the principle that such evidence is necessary for a just decision by the
Court.
30. In U. T. of Dadra & Nagar Have/i and another v. Fatehsinh
Mollansinll C/rnulrnnc the Court was dealing with an order passed by
1
,
the High court whereby it had allowed the revision and set aside the
D 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 authorities and ruled that it is well settled that the
exercise of power under Section 311 CrPC shout<;! 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
E primary duty of a criminal court. Calling a witness or re-examining a
witness already examined for the purpose of finding 011~ 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 o(
F power by the court would result in causing serious prejudice to the accused
resulting in miscarriage ofjustice. 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.
G 31. In Rajaram Prasad Yadav v. State of Bilrnr mu/ anotherCc,
the Court after referring to Section 311 Cr PC and Section 13 8 of the
Evidence Act observed that Section 311 CrPC vest widest powers in
the court when it comes to the issue of summoning a witness or to recal I
" (2006) 1 sec 529
H "(2013) 14 sec 461
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 197
[DIPAK MISRA, J .)
or re-examine any witness already examined. Analysing further with A
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
8
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 ofany person
already examined is concerned, the court must necessarily consider and c
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 essential ity of a person to be recalled
and re-examined has to be ascertained. It was also stated that while
D
such a widest 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:- E
"17 .2. The exercise of the widest discretionary powerunder
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. F
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.
G
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 co1Tect decision of the case.
H
198 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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 ofjustice.
B 17.6. The wide discretionary power should be exercised
judiciously and not arbitrarily.
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
C the case.
x x x x x x x x x
I 7.10. 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
D 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.
17.1 I. The court should be conscious of the position that
E 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
F 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
G
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,
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 199
· [DIPAK MISRA, J.]
must be ensured being a constitutional goal, as well as a ., A
human right."
[Emphasis supplied]
33. Recently in Shiv Kumar Yadav (supra), the Court reproduced
the principles culled out in Raiaram Prasad Yadav's case and thereafter
referred to the authority in Hoffman Andreas (supra) wherein it has B
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 c
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, ifthe
new counsel thought to have the material witnesses further D
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". E
The Court in Shiv Kumar Yadav (supra) case explained the said
authority by opining thus:-
4
"15 ...... While advancement of justice remains the prime
object of law, it cannot be understood that recall can be F
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 ofa 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 G
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
H
200 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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
B 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
c 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 and the proceedings in the trial, has clearly held that recalling
of the witnesses were not necessary for just decision of the case. The
D High Court, as we notice, has referred to certain authorities and
distinguished the decision in S/1iv Kumar Yadav (supra) and Fateltsinlt
Molta11si11/t Cltaulta11 (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
E 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
F CrPC. The criminal trial is required to proceed in accordance with
Section 309 of the Cr PC. This court in Vinod Kumar v. State ofPu11]ab~3 ,
while dealing with delay in examination and cross-examination was
compelled to observe thus:-
"lf one is asked a question, what afflicts the legally requisite
G criminal trial in its conceptual eventuality in this country the
two reasons that 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
H "(2015) 3 sec 220
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 201
[DlPAK MISRA, J.]
conducting the trial and the unfathomable reasons for A
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
0f pronouncements by this Court. What was a malady at
one time, with the efflux of time, has metamorphosed into
B
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 c
and collective interest is safeguarded. It is distressing to
note that despite series ofjudgments of this Court, the habit
of granting adjournment, really an ailment, continues. How
long shall we say, "Awake! Arise!". There is a constant
discomfort. ... "
D
36. Yet again, in Gumaib Singh l'. State of Punjab~", 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 E
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 cond!,!cted by allowing
the control to the counsel for the parties. They have their
roles to perform. They are required to monitor. They cannot
abandon their responsibility. It should be borne in mind that F
the whole dispensation of criminal justice atthe 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 ofjustice reflects its purity when G
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."
"(2013) 7 sec 10s H
202 SUPREME COURT REPORTS [2016) 5 S.C.R.
A 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
B
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
c be shown, we are inclined to think, are not acceptable in the obtaining
factual matrix. The decisions which have used the words that the court
should be magnanimous, needless to give special emphasis, did not mean
to convey individual genero~ity 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
D
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
E 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
F
truth. The singular ground which prominently comes to surface is that
the earlier counsel wh~ was engaged by the defenc~ had not put some
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
G such a situation recalling of witnesses indubitably cannot form the
foundation. !fit is accepted as a gr_ound, 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 ofSecti_on 311 CrPC for exercise
of such jurisdiction. It is noticeable that the High Court has been persuaded
H
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 203
[DIPAK MISRA, J.]
by the submission that recalling of witnesses and their cross-examination A
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 appreci'ate 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
B
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.
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
c
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 D
be uttered in decibels which is physically audible in the courtpremises,
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 E
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 boundaries, the orders like the present one may fall in the
arena of sanctuary of errors. Hence, we reiterate the necessity of F
doctrine of balance.
39. In view of the proceeded analysis we allow the appeals, set
aside tl}e 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. G
Devika Gujral Appeals allowed.
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