Allahabad High Court
Sajjan Singh vs State Of U.P. Thru. The Prin. Secy. … on 27 January, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:5189 Court No. - 12 Case :- APPLICATION U/S 482 No. - 697 of 2025 Applicant :- Sajjan Singh Opposite Party :- State Of U.P. Thru. The Prin. Secy. Deptt. Of Home And Another Counsel for Applicant :- Ram Naresh Singh Chauhan,Bhoopendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard.
2. The present application has been filed for the following main reliefs:-
“Wherefore, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to quash/set-aside the impugned order dated 11.11.2024 passed by learned Additional District & Sessions Judge/Fast Track Court No.1, Unnao in Sessions Trial No.566/2010 (State Versus Jasveer & Others) arising out of Case Crime No.2105/2010, Under Sections-147, 148, 149, 302/34 IPC, Police Station Kotwali, District Unnao, as contained in Annexure No.1 to this Petition.
It is further prayed that this Hon’ble court may kindly be pleased to stay the further proceedings of Sessions. Trial No.566/2010 (State Versus Jasveer & Othes) arising out of Case Crime No.2105/2010, Under Sections-147, 148, 149, 302/34 IPC, Police Station Kotwali, District Unnao pending in the court of learned Additional District & Sessions Judge/Fast Track Court No.1, Unnao during pendency of instant petition in the interest of justice.
It is further prayed that this Hon’ble Court be pleased to direct the learned Trial court ile. learned Additional District & Sessions Judge/Fast Track Court No.1, Unnao to summon the defence witnesses i.e. Satish Chandra, Inspector, CBCID, Lucknow (Earlier Investigating Officer), Ramesh Chandra, son of Ganga Narayan and Ravi Shankar, son of Shiv Dulare, both resident of village Chilaula, Police Station Kotwali, District Unnao in the above said trial proceeding as requested by the defence/petitioner through application dated 27.9.2024 No.159-Ka to secure the ends of justice.”
3. The present application has been filed by the applicant challenging the order dated 11.11.2024, passed by Additional District and Sessions Judge/FTC, Court No.1, Ayodhya (in short ‘trial court’) on an application preferred by the applicant under Section 311 Cr.P.C. praying therein to recall Satish Chandra/Inspector CBCID, Lucknow (earlier Investigating Officer), Ramesh Chandra and Sri Ravi Shanker.
4. The relevant facts of the case have been narrated in paragraphs 3 to 11 of this application, which are extracted hereunder:-
“3. That brief facts of the case are that allegedly on 23.4.2010 at about 14.15 hours a First Information Report was lodged by the complainant/opposite party no.2 Ram Prasad (father of deceased) against the petitioner and 4 other co-accused persons namely Jasveer Singh, Satyendra Singh, Satya Pal Singh and Sonu Singh in Case Crime No. 2105/2010, under sections 147, 148, 149, 302/34 IPC, Police Station Kotwali, District Unnao on totally false and baseless allegations. The true typed copy of the First Information Report is being annexed herewith as Annexure No.2 to this Affidavit.
4. That it is also relevant to mention here that the petitioner is totally innocent and has falsely been roped by the complainant with ulterior motive only for harassing to petitioner due to village party bandi and enmity, nothing else.
5. That in fact, the complainant is not eye witness of the incident and he had not witnessed the actual incident.
6. That it is also relevant to mention here that after usual investigation the Investigating Officer with the collusion of opposite party No.2 (complainant) had filed charge sheet against the petitioner and other named accused persons namely Jasveer Singh, Satyendra Singh, Satya Pal Singh and Sonu Singh under sections 147, 148, 149, 302/34 IPC and upon the said charge sheet the learned Magistrate concern had taken cognizance and after compliance of provision mentioned under section 207 Cr.P.C., the above said case has been committed before learned Sessions Judge, Unnao, where the trial proceeding of the above said case crime is pending in the court of learned Additional Sessions Judge/F.T.C-I, Unnao bearing Sessions Trial No.566/2010 (State Versus Jasveer & Others).
7. That it is also relevant to mention here that the petitioner is allowed on bail in this case crime. The petitioner and other co-accused persons are facing and fully cooperating with the trial proceeding mentioned above and they are not delaying the trial proceeding.
8. That it is also submitted that in the above said trial proceedings the learned trial court has framed the charges against the accused persons in the year 2010 and during course of trial the evidence of the prosecution witnesses have been recorded without adopting any delayed tactics and thereafter the prosecution evidence has been closed and the case has been pasted for recording statement under section 313 Cr.P.C of the accused.
9. That it is also submitted that after recording statement under section 313 Cr.P.C the accused persons have entered into defence and initially on 15.12.2023 the counsel of the petitioner has filed an application for producing defence evidence, which was allowed, as a result defence witness Awadhesh Kumar was produced and examined as D.W.1, but without consent of the present petitioner the learned trial court has closed the defence evidence only on the consent of the co-accused Swarnpal alias Sonu and Satyendra Singh and the trial proceeding has been pasted for arguments.
10. That thereafter on 27.9.2024 the petitioner has again filed an application for summoning 3 other defence witnesses namely Satish Chandra, Inspector, CBCID, Lucknow (earlier Investigating Officer) and Ramesh Chandra, son of Ganga Narayan and Ravi Shankar, son of Shiv Dulare, resident of Chilaula, Police Station Kotwali, District Unnao in the above said trial proceeding and the said application was numbered as Application No. 159-Ka. The true typed copy of the application dated 27.9.2024 bearing No 159-Ka is being annexed herewith as Annexure No.3 to this petition.
11. That thereafter vide impugned order dated 11.11.2024 the learned trial court has rejected the said application moved by the defence only on the ground that the trial proceeding is oldest and in the list of action plan and the said application has been filed by the defence at the stage of arguments.”
5. The trial Court upon due consideration of the facts of the case rejected the application under Section 311 Cr.P.C. filed by the applicant for recalling Satish Chandra/Inspector CBCID, Lucknow (earlier Investigating Officer), Ramesh Chandra and Sri Ravi Shanker for cross-examination vide impugned order dated 11.11.2024. The relevant portion of the order dated 11.11.2024 is extracted hereinunder:-
“i=koyh is’k gqbZA vfHk;qDrx.k gkftj gSA vfHk;qDr lTtu flag }kjk izLrqr izkFkZuk i= dkxt la[;k 159d ds vkns’[email protected] gsrq fu;r gSA iz’uxr izkFkZuk i= 159d ij mHk; i{k dks iwoZ esa lquk tk pqdk gSA
vfHk;qDr lTtu flag tfj;s fo}ku vf/koDrk }kjk 159d izkFkZuk i= bl vk’k; dk izLrqr fd;k x;k gS fd izkFkhZ fuEu lk{khx.k dks crkSj cpko lk{kh izLrqr djuk pkgrk gSA vr% lk{khx.k iwoZ foospd lrh’k pUnz] jes’k pUnz iq= xaxk ukjk;.k] jfo ‘kadj iq= f’ko nqykjs dks crkSj cpko lk{kh ryc fd;s tkus dh ;kpuk dh gSA
izkFkZuk i= 159d ds iq”V ij vfHk;kstu i{k dh vksj ls fo}ku lgk;d ftyk ‘kkldh; vf/koDrk QkStnkjh }kjk ;g vkifRr dh x;h gS fd i;kZIr volj fn;k tk pqdk gSA okn dkQh iqjkuk gSA izkFkZuk i= dk fojks/k fd;k tkrk gSA
oknh jke izlkn tfj;s fo}ku vf/koDrk }kjk 160d vkifRr nkf[ky dh x;h gS ftles dFku fd;k x;k gS fd eqdnek mijksDr esa vfHk;qDr lTtu flag }kjk cpko esa xokg ryc djus gsrq izkFkZuk i= fn;k gS tks U;k; laxr ugh gS] D;ksafd mijksDr i=koyh cgl esa dkQh fnuksa ls py jgh gSA dsoy egt eqdnek c<+kus gsrq vfHk;qDr lTtu flag izkFkZuk i= fn;k gSA vr% izkFkZuk i= fnukWfdr 27-9-2024 vfHk;qDr lTtu flag dks fujLr fd;s tkus dh ;kpuk dh gSA
iz’uxr izkFkZuk i= 159d ds fuLrkj.k ds lanHkZ esa i=koyh dk lE;d ifj’khyu fd;kA i=koyh ds ifj’khyu ls fofnr gksrk gS fd orZeku l= okn izkphure okn dh Js.kh esa gS rFkk ,sD’ku Iyku dh lwph esa gS rFkk iz’uxr izkFkZuk i= 159d vfHk;qDr lTtu flag }kjk tfj;s vf/koDrk cgl ds Lrj ij lQkbZ lk{; dh vuqefr gsrq izLrqr fd;k x;k gS ftlesa dFku fd;k x;k gS fd izkFkhZ fuEu lk{khx.k dks crkSj cpko lk{kh izLrqr djuk pkgrk gSA vr% lk{khx.k iwoZ foospd lrh’k pUnz] jes’k pUnz iq= xaxk ukjk;.k] jfo ‘kadj iq= f’ko nqykjs dks crkSj cpko lk{kh ryc fd;s tkus dh ;kpuk dh gSA i=koyh ds voyksdu ls ;g Hkh fofnr gks jgk gS fd orZeku l= okn esa iwoZ esa cgl ds Lrj ij vfHk;qDr lTtu flag }kjk izkFkZuk i= fnukWfdr 15-12-2023 ckcr lQkbZ lk{; izLrqr djus dh vuqefr gsrq fn;k x;k tks U;k; fgr esa U;k;ky; ds vkns’k }kjk Lohd`r fd;k x;kA ftl ij lQkbZ lk{; ds :i esa lk{kh vo/ks’k dqekj dks ijhf{kr djk;k x;kA mlds mijkUr vfHk;qDrx.k Lo.kZiky mQZ lksuw o lR;sUnz flag }kjk vkns’k i= esa vfHkfyf[kr fd;k x;k gS fd vc dksbZ lQkbZ lk{; izLrqr ugh djuk gSA rnksijkUr i=koyh iqu% cgl gsrq fu;r gqbZA iqu% vfHk;qDr lTtu flag }kjk iz’uxr izkFkZuk i= 159d esa mfYyf[kr mijksDr O;fDr;ksa dks lQkbZ lk{kh ds :i esa lk{; gsrq ryc fd;s tkus gsrq izLrqr fd;k x;k gSA bl izdkj mijksDr ls Li”V gS fd iz’uxr izkFkZuk i= okn dks foyfEcr djus ds mn~ns’; ls fn;k tkuk Li”V gks jgk gSA vr% ekeys ds leLr rF;ksa ,oa ifjfLFkfr;ksa dks n`f”Vxr j[krs gq, vfHk;qDr lTtu flag }kjk fn;k x;k izkFkZuk i= 159d vk/kkj i;kZIr u gksus ds dkj.k rn~uqlkj fujLr fd;s tkus ;ksX; gSA
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izkFkZuk i= 159d fujLr fd;k tkrk gSA vkifRr 160d rn~uqlkj fuLrkfjr dh tkrh gSA i=koyh okLrs cgl fnukWd 18-11-2024 dks is’k gksA ”
6. In the aforesaid background of the case, present application has been filed.
7. Learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon’ble Apex Court in regard to expression ‘Fair Trial’. In this regard, he placed reliance on the judgment dated 30.07.2008 passed by the Hon’ble Apex Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd. reported in 2008 (11) SCC 108. As such, interference of this Court is required in the matter.
8. Learned AGA opposed the present application. He stated that the application under Section 311 Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in the circumstances of the case, the application has rightly been rejected by the trial court. Prayer is to affirm the impugned order and dismiss the instant application.
9. Considered the submissions advanced by the learned counsel for the parties and perused the record.
10. Considered the aforesaid and the observations made by the trial court in the order dated 11.11.2024 and the principles related to recall of witness under Section 311 Cr.P.C. settled by the Hon’ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad Yadav vs. State of Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).
11. It is well settled by catena of decisions by the Hon’ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society.
12. The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, 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. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.
13. The jurisdiction under Section 482 of the Code is extraordinary and it can be used only in such cases where there is gross injustice or clear abuse of process of law. It can not be used to help such person who is not cooperating in fair trial. Similarly, power conferred to Trial Court in Section 311 of the Code to summon any person as witness for examination, cross-examination or for further examination can be exercised only in such cases where his examination is necessary for the just decision of the case. Such power cannot be invoked to harass the witness who has already been examined or for causing delay in trial.
14. In the facts of the case, it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra); Ram Mehar (Supra); State (NCT of Delhi) (Supra) and Swapan Kumar Chatterjee (Supra).
15. In the case of Mohd. Khalid (Supra), the Hon’ble Apex Court observed as under:-
“Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in- chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:-
“9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner.”
16. In the case of Ram Mehar (Supra) the Hon’ble Apex Court observed as under:-
“23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions 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 spectator or a mute observer when it presides over a trial. It is the duty of the court 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 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 – all kinds of individual notions of fair trial have no room”.”
“38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. 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 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 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 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 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 doctrine of balance”.
17. The relevant paragraphs of the judgment passed in the case of State (NCT of Delhi) (Supra) are extracted hereunder:-
“10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.
11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. 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 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.
14. In Hoffman Andreas case [Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 : 2001 SCC (Cri) 1488] , the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of the illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed : (SCC p. 432, para 6)
“6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. 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 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, if the new counsel thought to have the material witnesses further 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.”
15. 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.
16. 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.
27. 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 CrPC 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.
28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.
29. We may now sum up our reasons for disapproving the view of the High Court in the present case:
(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 the 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 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;
(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.”
18. In the case of Swapan Kumar Chatterjee (Supra), a note of caution was sounded and the same can be deduced from paragraphs 11 and 12 of the report, which are as under:-
“11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision.”
19. Upon due consideration of aforesaid facts as also the law settled on the issue, this Court does not find any illegality in the impugned order dated 11.11.2024. It is for the reason that this Court finds that the application under Section 311 Cr.P.C. was preferred by the applicant only to delay the proceedings pending before the trial court and the same can be deduced from the following facts:-
(i) The Sessions Trial in issue, is pending since 2010.
(ii) At the stage of arguments an application dated 15.12.2023 for adducing evidence in defence was given by the applicant and the same was allowed by the trial court.
(iii) In the application under Section 311 Cr.P.C., in issue, no reason for recalling Satish Chandra/Inspector CBCID, Lucknow (earlier Investigating Officer), Ramesh Chandra and Sri Ravi Shanker have not been indicated, though the same, are required in view of the judgment passed by the Hon’ble Apex Court in the case of State (NCT of Delhi) (Supra).
20. For the aforesaid, this Court does not find any illegality in the impugned order dated 11.11.2024. The instant application is hereby dismissed. Costs made easy.
Order Date :- 27.01.2025
Jyoti/-
