Ali v. State [Salamat Ali v. State, 2010 SCC OnLine
Del 1343: (2010) 174 DLT 558].
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
2025:CHC-AS:1123
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.