Delhi High Court
Shiv Kumar Yadav vs State on 4 March, 2015
Author: Sunita Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 04th March, 2015
+ CRL .M.C.725/2015 & Crl. MA 2765/2015
SHIV KUMAR YADAV ..... Petitioner
Through: Mr D.K. Mishra, Advocate
versus
STATE ..... Respondent
Through: Mr. Rajesh Mahajan, ASC for State
along with Insp. Anil Dureja, Insp.
Devender Rathi, SI Sandeep and SI
Renu, PS Sarai Rohilla, Delhi.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. This is a petition under Article 227 of the Constitution of India read
with Section 482 Cr.P.C. moved on behalf of the petitioner for setting
aside the order dated 18th February, 2015 passed by the learned Additional
Sessions Judge in Sessions Case No. 02/2015 vide FIR No. 1291/2014 u/s
376/323/506 IPC registered with Police Station Sarai Rohilla vide which
the prayer of the petitioner for recalling the prosecution witnesses for
further cross-examination was declined.
2. FIR in the instant case was registered on the basis of statement made
by prosecutrix "X" wherein she levelled allegations of commission of rape
upon her on 5th December, 2014 by the petitioner in his cab No. DL-1YD-
7910 Swift Desire while she was returning home in that cab. After
completion of investigation, charge sheet was submitted before the learned
Metropolitan Magistrate and the case was committed to the Court of
Sessions. After hearing arguments on charge, charge u/s 376(2)(m)
323/356/506 IPC was framed. Thereafter prosecution in all examined 28
witnesses. Statement of petitioner u/s 313 Cr.P.C. was recorded.
Thereafter application u/s 311 Cr.P.C. was moved for recalling all the
prosecution witnesses for further cross-examination which was declined by
the learned Additional Sessions Judge vide the impugned order. Feeling
aggrieved by the same, the present petition has been filed.
3. It was submitted by learned counsel for the petitioner that the
previous defence counsel Sh. Alok Dubey having enrolment No. D-
2695/14 and Sh. Ankit Bhatia having enrolment No.2805/14 got the
petitioner‟s vakalatnama signed at Tihar Jail to defend his case. Both the
advocates were very new to the profession and Sh. Alok Dubey, Advocate
had not even passed the screen test as was required by Bar Council of
Delhi and, as such, was not competent to contest the case on behalf of the
petitioner. The vakalatnama does not even contain the name of the Court
for which the counsels came to be appointed. It was submitted that besides
the maxim justice delayed is justice denied there is other judicial maxim
justice hurried is justice buried which applies to the facts of the present
case. The trial has been conducted in this case on a day to day basis
without allowing the petitioner even breathing space to have a fair
conference with his counsel which is vital and necessary for fair defence in
such cases wherein the petitioner can be punished for a substantially long
period of incarceration.
4. It was further submitted that the learned Trial Court failed to
appreciate that the case of the petitioner as disclosed in application u/s 311
Cr.P.C. was not that of change of counsel but that of being represented by
a counsel who was a novice in law, incompetent and having just enrolled
as an advocate who does not know the nuances of conducting evidence
which is vital for a fair defence, leave aside conducting trial in such a
serious matter. It is evident from the fact that questions have been asked
which are self incriminatory. The counsel for the petitioner has taken up
the case pro bono because the accused is an indigent person and does not
have the wherewithal to match the might of the State who have engaged
Special Public Prosecutor. While the object of having Fast Track Courts
may be to have an expeditious trial, the learned Additional Sessions Judge
cannot overlook the judicial dictum that right to defence includes the right
to effective and meaningful defence at the trial. The process of justice may
be speeded up and hurried but the fairness which is a basic element of
justice cannot be permitted to be buried. It was required to be seen
whether the petitioner was having meaningful and effective defence or not
even though the counsel may be of the choice of the accused.
5. It was further submitted that the counsel engaged by the petitioner
failed to conduct the cross-examination of the witnesses properly; that
material portions of evidence available on record were not put to the
witnesses to contradict their statements; failure of the counsel to elicit
these contradictions would preclude the petitioner from putting forth an
effective defence in accordance with law at a subsequent stage of the case.
6. Reference was also made to the material facts as detailed in para 15
of the application u/s 311 Cr.P.C. moved before the learned Additional
Sessions Judge for enumerating the reasons why recall of prosecution
witnesses is necessary. Lastly, it was submitted that the petitioner does not
insist on calling upon the entire prosecution witnesses for cross-
examination and he will be satisfied if PW 2,3,4,9,12,13,14,16,20,22,24,26
and 27 are ordered to be recalled. Moreover, counsel undertakes not to
repeat any question which has already been put to the witnesses for the
purpose of cross-examination. As such, it was submitted that for the
purpose of affording an opportunity to the petitioner to have a fair trial,
these witnesses be recalled for the purpose of cross-examination.
7. Reliance was placed on:
i. Rajaram Prasad Yadav vs. State of Bihar & Anr., (2013) 14
SCC 461.
ii. Salamat Ali vs. State, 174(2010)DLT558
iii. Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC
2140.
8. The application is vehemently opposed by the learned Additional
Standing Counsel for the State on the ground that by virtue of application
u/s 311 Cr.P.C., the petitioner wants to recall all the prosecution witnesses
for the purpose of cross-examination which tantamounts to retrial of the
case which is to be resorted to only in exceptional circumstances which are
lacking in the instant case. Even if the petitioner restricts his claim to
certain witnesses he will still claim prejudice that although he wanted to
recall entire prosecution witnesses but was allowed only certain number of
witnesses to be recalled. Moreover, such a prayer should have been made
before the learned Trial Court so that the Court could have applied its mind
as to whether limited number of witnesses are required to be recalled or
not. Counsel further submits that the primary aim of this application is to
delay the trial. By conducting day-to-day trial, the learned Additional
Sessions Judge has followed the legislative mandate as incorporated in
Section 309 of the Code of Criminal Procedure. The counsel cannot be
permitted to say that by following the procedure prescribed by law, he has
been prejudiced in any manner. Moreover, the counsel was appointed by
the accused of his own choice. He was not novice to crime inasmuch as he
was involved in 9 other cases. Moreover, sufficient opportunity was given
to the counsel to have consultation with the petitioner and only thereafter
the witnesses were cross-examined. It was further submitted that the
submission of learned counsel for the petitioner that the earlier counsel was
not eligible to practice as he had not qualified screen test was not based on
any documentary evidence and, in fact, the learned counsel should not
have commented upon the competency of the Advocate behind his back.
Reference was also made to the detailed cross-examination conducted by
the earlier counsel for submitting that the manner in which the witnesses
were cross-examined does not reflect that earlier counsel was incompetent
or inexperienced. In any case competency is always subjective.
9. Counsel further urged that it is easier to pick holes in the cross-
examination conducted by the earlier counsel. If with change of counsel
defence is to vary, it can be adopted thereafter also. If the application is
allowed what is the guarantee that after the application is allowed and third
counsel is engaged then he will not move such an application for recalling
the witnesses and such a practice cannot be allowed to be adopted.
Allowing of the application would tantamount to filling in the lacuna, more
particularly, when it is not limited to a particular question. In fact, it will
open a pandora box. A reasoned order has been passed by the learned
Additional Sessions Judge, which cannot be termed to be perverse and no
interference is warranted, as such, the petition is liable to be dismissed.
10. Reliance was placed on:
i. Raminder Singh vs. State, MANU/DE/0339/2008, decided on
20.02.2008.
ii. Prakash Chandra vs. CBI, 188 (2012) DLT 62
iii. Noor Jahan vs. State of NCT of Delhi, 2010 ILR 2 Delhi 507
iv. Dr. Rajesh Talwar and Anr. vs. CBI and Anr.,(2014) 1 SCC
v. Shri Praveen Jain vs. Mr. Naresh Kumar Goel,
MANU/DE/1565/2013.
vi. State vs. Navjot Sandhu, AIR 2005 SC 3820.
11. I have given my considerable thoughts to the respective submissions
of learned counsel for the parties and have perused the record.
12. Learned counsel for the petitioner laid emphasis on the maxim
„justice hurried is justice buried' but there is another maxim „justice
delayed is justice denied." Quick and prompt trial of criminal offences is
the need of the hour to repose faith of the people in judiciary. For this
purpose the constitutional guarantee of speedy trial is an important
safeguard. The right to speedy trial is implicit in Art.21 of the constitution
of India. The first written articulation of the right to speedy trial appeared
in 1215 in the Magna Carta: "We will sell to no man, we will not deny or
defer to any man either justice or right." Article 21 of the Indian
constitution declares that "no person shall be deprived of his life or
personal liberty except according to the procedure laid by law." Justice
V.R.Krishna Iyer in Babu Singh v. State of UP, AIR 1978 SC 527
remarked, "Our justice system even in grave cases, suffers from slow
motion syndrome which is lethal to „fair trial‟ whatever the ultimate
decision. Speedy justice is a component of social justice since the
community, as a whole, is concerned in the criminal being condignly and
finally punished within a reasonable time and the innocent being absolved
from the inordinate ordeal of criminal proceedings."
Even in the case of Sheela Barse vs. Union of India, 1986 3 SCR
562, Hon‟ble Supreme Court has held that the right to speedy trial is a
fundamental right. Further it was stated by the Hon‟ble Apex Court that the
consequence of violation of the fundamental right to speedy trial would be
that the prosecution itself would be liable to be quashed on the ground that
it is in breach of fundamental right.
13. Section 309 has been inserted in the Code of Criminal Procedure,
1973 keeping in view this constitutional mandate of speedy trial.
14. Under Section 309 of the Code of Criminal Procedure falling under
Chapter XXIV it has been specifically stipulated as under:-
"(1) In every inquiry or trial, the proceedings shall be held as expeditiously as
possible, and in particular, when the examination of witnesses has once begun,
the same shall be continued from day to day until all the witnesses in attendance
have been examined, unless the Court finds the adjournment of the same beyond
the following day to be necessary for reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under sections 376
to 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as
possible, be completed within a period of two months from the date of
commencement of the examination of witnesses."
15. Keeping in view the fact that crime against women is on increase, in
order to effectively deal with the situation, by Criminal Law Amendment
Act, 2013, Section 21 Sub Section 1 was substituted w.e.f. 3 rd February,
2013 which reads as under:-
"(1) In every inquiry or trial the proceedings shall be continued from day-to-
day until all the witnesses in attendance have been examined, unless the Court
finds the adjournment of the same beyond the following day to be necessary for
reasons to be recorded.
Provided that when the inquiry or trial relates to an offence under section 376,
section 376A, section 376B, section 376C or section 3760 of the Indian Penal
Code, the inquiry or trial shall, as far as possible be completed within a period of
two months from the date of filing of the charge sheet."
16. As such, there is a legislative mandate that where the trial relates to
an offence u/s 376, the inquiry or trial, shall be completed within a period
of two months as far as possible from the date of filing of the charge sheet.
Special Courts/Fast Track Courts to deal with the cases of sexual assault of
women were set up by the Government. Hon‟ble Supreme Court has been
giving specific directions from time to time reminding that once
examination of witnesses starts, the Court has to continue the trial on day-
to-day until all witnesses have been examined. The Court has to record
reasons for deviating from the said course. "Special reasons" are required
to be mentioned in the order for adjournment and that can alone confer
jurisdiction on the Court to adjourn the case without examination of
witnesses who are present in Court.
17. In this context it will also be worthwhile to refer to a circular issued
by the High Court of Delhi in Circular No. 1/87 dated 12 th January 1987.
Clause 24A of the said circular reads as under:
"24A disturbing trend of trial of Sessions cases being adjourned, in some cases
to suit convenience of counsel and in some others because the prosecution is
not fully ready, has come to the notice of the High Court. Such adjournments
delay disposal of Sessions cases.
The High Court considers it necessary to draw the attention of all the Sessions
Judges and Assistant Sessions Judges once again to the following provisions of
the Code of Criminal Procedure, 1973, Criminal Rules of Practice, Kerala, 1982
and Circulars and instructions on the list system issued earlier, in order to
ensure the speedy disposal of Sessions cases.
1. (a) In every enquiry or trial, the proceedings shall be held as expeditiously as
possible, and, in particular, when the examination of witnesses has once begun,
the same shall be continued from day to day until all the witnesses in
attendance have been examined, unless the court finds the adjournment of the
same beyond the following day to be necessary for reasons to be recorded.
(Section 309(1) Code of Criminal Procedure).
(b) After the commencement of the trial, if the court finds it necessary or
advisable to postpone the commencement of, or adjourn, any inquiry or trial, it
may, from time to time, for reasons to be recorded postpone or adjourn the
same on such terms as it thinks fit, for such time as it considers reasonable. If
witnesses are in attendance no adjournment or postponement shall be granted,
without examining them, except for special reasons to be recorded, in writing.
(Section 309(2) Code of Criminal Procedure).
2. Whenever more than three months have elapsed between the date of
apprehension of the accused and the close of the trial in the Court of Sessions,
an explanation of the cause of delay, (in whatever court it may have occurred)
shall be furnished, while transmitting the copy of the judgment. (Rule 147 Crl.
Rules of Practice).
3. Sessions cases should be disposed of within six weeks of their institution, the
date of commitment being taken as the date of institution in Sessions Cases.
Cases pending for longer periods should be regarded as old cases in respect of
which explanations should be furnished in the calendar statements and in the
periodical returns. (High Court Circular No. 25/61 dated 26th October 1961).
4. Sessions cases should be given precedence over all other work and no other
work should be taken up on sessions days until the sessions work for the day is
completed. A Sessions case once posted should not be postponed unless that is
unavoidable, and once the trial has begun, it should proceed continuously from
day to day till it is completed. If for any reason, a case has to be adjourned or
postponed, intimation should be given forthwith to both sides and immediate
steps be taken to stop the witnesses and secure their presence on the
adjourned date.
On receipt of the order of commitment the case should be posted for trial to as
early a date as possible, sufficient time, say three weeks, being allowed for
securing the witnesses. Ordinarily it should be possible to post two sessions
cases a week, the first on Monday and the second on Thursday but sufficient
time should be allowed for each case so that one case does not telescope into
the next. Every endeavour should be made to avoid telescoping and for this, if
necessary, the court should commence sitting earlier and continue sitting later
than the normal hours. Judgment in the case begun on Monday should
ordinarily be pronounced in the course of the week and that begun on Thursday
the following Monday. (Instructions on the list system contained in the O.M.
dated 8th March 1984).
All the Sessions Judges and the Assistant Sessions Judges are directed to adhere
strictly to the above provisions and instructions while granting adjournments in
Sessions Cases."
18. In this context some of the decisions which have specifically dealt
with such a situation which has caused serious inroad into the criminal
jurisprudence can also be referred to. In one of the earliest cases reported
in Emperor v. Badri Prasad, 1913 ILR 35 All 63, a Division Bench of the
Allahabad High Court has stated the legal position as under:
"...Moreover, we wish to point out that it is most inexpedient for a Sessions trial
to be adjourned. The intention of the Code is that a trial before a Court of Session
should proceed and be dealt with continuously from its inception to its finish.
Occasions may arise when it is necessary to grant adjournments, but such
adjournments should be granted only on the strongest possible ground and for
the shortest possible period...."
(Emphasis added)
19. In a decision reported in Chandra Sain Jain and Ors. v. The State,
1982 Cri. L.J. NOC 86 (ALL), a Single Judge has held as under while
interpreting Section 309 of Code of Criminal Procedure:
"Merely because the prosecution is being done by C.B.I. or by any other
prosecuting agency, it is not right to grant adjournment on their mere asking
and the Court has to justify every adjournment if allowed, for, the right to
speedy trial is part of fundamental rights envisaged under Article 21 of the
Constitution, 1979 Cri LJ 1036 (SC), Foll."
(Emphasis added)
20. In the decision reported in Lt. Col. S.J. Chaudhary v. State (Delhi
Administration), (1984) 1 SCC 722, Apex Court in paragraphs 2 and 3 has
held as under:
2. We think it is an entirely wholesome practice for the trial to go on from day-to-
day. It is most expedient that the trial before the Court of Session should proceed
and be dealt with continuously from its inception to its finish. Not only will it
result in expedition, it will also result in the elimination of manoeuvre and
mischief. It will be in the interest of both the prosecution and the defence that
the trial proceeds from day-to-day. It is necessary to realise that Sessions cases
must not be tried piecemeal. Before commencing a trial, a Sessions Judge must
satisfy himself that all necessary evidence is available. If it is not, he may
postpone the case, but only on the strongest possible ground and for the shortest
possible period. Once the trial commences, he should, except for a very pressing
reason which makes an adjournment inevitable, proceed de die in diem until the
trial is concluded.
3. We are unable to appreciate the difficulty said to be experienced by the
Petitioner. It is stated that his Advocate is finding it difficult to attend the court
from day-to-day. It is the duty of every Advocate, who accepts the brief in a
criminal case to attend the trial from day-today. We cannot over-stress the duty
of the Advocate to attend to the trial from day-to-day. Having accepted the brief,
he will be committing a breach of his professional duty, if he so fails to attend.
The criminal miscellaneous petition is, therefore, dismissed."
(Emphasis added)
21. In a comprehensive decision of Hon‟ble Supreme Court reported in
State of U.P. v. Shambhu Nath Singh and Ors., (2001) 4 SCC 667 the
legal position on this aspect has been dealt with in extenso. Useful
reference can be made to paragraphs 10 & 11:
"10. Section 309 of the Code of Criminal Procedure (for short "the Code") is the
only provision which confers power on the trial court for granting adjournments
in criminal proceedings. The conditions laid down by the legislature for granting
such adjournments have been clearly incorporated in the section. It reads thus:
309. xxx xxx xxx
11. The first Sub-section mandates on the trial courts that the proceedings shall
be held expeditiously but the words "as expeditiously as possible" have provided
some play at the joints and it is through such play that delay often creeps in the
trials. Even so, the next limb of the Sub-section sounded for a more vigorous
stance to be adopted by the court at a further advanced stage of the trial. That
stage is when examination of the witnesses begins. The legislature which diluted
the vigour of the mandate contained in the initial limb of the Sub-section by
using the words "as expeditiously as possible" has chosen to make the
requirement for the next stage (when examination of the witnesses has started)
to be quite stern. Once the case reaches that stage the statutory command is
that such examination "shall be continued from day to day until all the witnesses
in attendance have been examined". The solitary exception to the said stringent
rule is, if the court finds that adjournment "beyond the following day to be
necessary" the same can be granted for which a condition is imposed on the
court that reasons for the same should be recorded. Even this dilution has been
taken away when witnesses are in attendance before the court. In such situation
the court is not given any power to adjourn the case except in the extreme
contingency for which the second proviso to Sub-section (2) has imposed another
condition,
Provided further that when witnesses are in attendance, no adjournment or
postponement shall be granted, without examining them, except for special
reasons to be recorded in writing."
22. In Akil @ Javed vs. State of NCT of Delhi, 2013(7) SCC 125,
Hon‟ble Supreme Court came heavily upon the learned Trial Courts by
observing as under:-
"35. It is unfortunate that in spite of the specific directions issued by this
Court and reminded once again in Shambhu Nath (supra) such recalcitrant
approach was being made by the trial Court unmindful of the adverse serious
consequences affecting the society at large flowing therefrom. Therefore, even
while disposing of this appeal by confirming the conviction and sentence imposed
on the Appellant by the learned trial Judge, as confirmed by the impugned
judgment of the High Court, we direct the Registry to forward a copy of this
decision to all the High Courts to specifically follow the instructions issued by this
Court in the decision reported in Rajdeo Sharma (supra) and reiterated in
Shambhu Nath (supra) by issuing appropriate circular, if already not issued. If
such circular has already been issued, as directed, ensure that such directions are
scrupulously followed by the trial Courts without providing scope for any
deviation in following the procedure prescribed in the matter of a trial of sessions
cases as well as other cases as provided under Section 309 of Code of Criminal
Procedure. In this respect, the High Courts will also be well advised to use their
machinery in the respective State Judicial Academy to achieve the desired result.
We hope and trust that the respective High Courts would take serious note of the
above directions issued in the decisions reported in Rajdeo Sharma (supra) which
has been extensively quoted and reiterated in the subsequent decision of this
Court reported in Shambhu Nath (supra) and comply with the directions at least
in the future years."
23. Again in Vinod Kumar vs. State of Punjab, 2015 (1) SCALE 542
Hon‟ble Supreme Court expressed the agony and anguish by observing as
under:-
41. ....Adjournments are sought on the drop of a hat by the counsel, even
though the witness is present in court, contrary to all principles of holding a trial.
That apart, after the examination-in-chief of a witness is over, adjournment is
sought for cross-examination and the disquieting feature is that the trial courts
grant time. The law requires special reasons to be recorded for grant of time but
the same is not taken note of. As has been noticed earlier, in the instant case the
cross-examination has taken place after a year and 8 months allowing ample
time to pressurize the witness and to gain over him by adopting all kinds of
tactics. There is no cavil over the proposition that there has to be a fair and
proper trial but the duty of the court while conducting the trial to be guided by
the mandate of the law, the conceptual fairness and above all bearing in mind its
sacrosanct duty to arrive at the truth on the basis of the material brought on
record. If an accused for his benefit takes the trial on the path of total mockery, it
cannot be countenanced. The Court has a sacred duty to see that the trial is
conducted as per law. If adjournments are granted in this manner it would
tantamount to violation of rule of law and eventually turn such trials to a farce. It
is legally impermissible and jurisprudentially abominable. The trial courts are
expected in law to follow the command of the procedure relating to trial and not
yield to the request of the counsel to grant adjournment for non-acceptable
reasons. In fact, it is not all appreciable to call a witness for cross-examination
after such a long span of time. It is imperative if the examination-in-chief is over,
the cross-examination should be completed on the same day. If the examination
of a witness continues till late hours the trial can be adjourned to the next day for
cross-examination. It is inconceivable in law that the cross-examination should
be deferred for such a long time. It is anathema to the concept of proper and fair
trial. 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 and collective interest is safe-guarded.
It is distressing to note that despite series of judgments of this Court, the habit of
granting adjournment, really an ailment, continues. How long shall we say,
"Awake! Arise!". There is a constant discomfort. Therefore, we think it
appropriate that the copies of the judgment be sent to the learned Chief Justices
of all the High Courts for circulating the same among the learned trial Judges
with a command to follow the principles relating to trial in a requisite manner
and not to defer the cross-examination of a witness at their pleasure or at the
leisure of the defence counsel, for it eventually makes the trial an apology for
trial and compels the whole society to suffer chicanery. Let it be remembered
that law cannot allowed to be lonely; a destitute.
24. In view of legislative mandate as incorporated under Section 309 of
the Code of Criminal Procedure and repeated directions given by Hon‟ble
Supreme Court if the learned Additional Sessions Judge conducted the trial
of the case on day-to-day basis, no fault can be found with the manner the
trial has been conducted.
25. The further submission of learned counsel for the petitioner that due
to trial of the case on day-to-day basis, the accused was deprived of due
consultation by his Advocate, the same is not borne out from the record.
26. Certified copies of the order sheets placed on record by the
petitioner himself goes to show that at every stage of the proceedings, he
has been represented by an Advocate. After the arrest of the accused when
he was produced before the learned Metropolitan Magistrate on 8th
December, 2014, Sh. Vineet Malhotra, Advocate from legal aid was
present and after hearing arguments, police remand for three days was
granted and accused was ordered to be produced on 11 th December, 2014.
On 11th December, 2014, counsel from DLSA was present and after
hearing the submissions, the accused was remanded to judicial custody.
After the case was committed to the Court of Sessions and the petitioner
was produced before the learned Additional Sessions Judge on 7th January,
2015. Sh Alok Kumar, Advocate appeared along with the accused. He
moved an application seeking permission to inspect the car in question and
the permission was granted. The matter was adjourned for hearing
arguments on charge on 9th January, 2015. On 9th January, 2015,
arguments on charge were heard from learned Public Prosecutor for the
State as well as Sh. Alok Kumar, counsel for accused in the presence of
accused who was produced from jail. By detailed order, accused was
directed to be charged for offence punishable u/s 376(2)(m)/323/356/506
IPC. The charge was read over and explained to the accused. He pleaded
not guilty and claimed trial, however, he refused to sign the charge stating
that arguments on charge were not advanced in his presence and he wanted
to engage another counsel. At that juncture, his counsel Sh. Alok Kumar
submitted that he has been duly representing the accused. His
Vakalatnama executed by the accused formed part of the court record. The
accused was, therefore, again questioned as to why he did not want to sign
the charges then he submitted that he had not read complete order and did
not want to sign the same. The charge was again read over and explained
to him then he gave a separate statement written by him in his own hand
that he was willing to sign the charges voluntarily and that he pleads not
guilty and claimed trial. Thereafter he signed the charge. At that stage,
learned Public Prosecutor for the State submitted that in terms of Section
294 Cr.P.C., accused may be asked if he is ready to admit any document of
the prosecution. After due consultation with his lawyer, the accused gave
statement which was recorded separately wherein he did not dispute the
factum of recording statement of prosecutrix u/s 164 Cr.P.C., his refusal to
join TIP proceedings, his potency report prepared by Dr. Ashish Tyagi and
the factum of his being the registered owner of the vehicle.
27. The record also reveals that the Prosecutrix, who was examined on
15.01.2015 was not cross-examined on that day and her cross-examination
was deferred at request of the then learned defence counsel, who wanted to
have a legal interview with the accused before cross-examining the
prosecutrix. The prosecutrix was partly cross-examined by learned defence
counsel on 16.01.2015 and her further cross-examination was concluded
by learned defence counsel on 17.01.2015. On the same day, necessary
directions for ensuring the safety and security of the accused/applicant
were also issued on an application moved by him in this regard.
28. The record of the case further reveals that learned defence counsel,
who was earlier representing the accused had been seeking necessary
instructions from the accused on various aspects, as is apparent from the
order dated 19.01.2015 also.
29. On 22.01.2015, cross-examination of PW13 was also deferred on a
request made on behalf of accused, as was the cross-examination of PW22,
which was deferred on 24.01.2015, again at request of learned defence
counsel. On 28.01.2015, again the cross-examination of PW26 was
deferred at request of learned defence counsel, who wanted to go through
the record before further cross-examining the witness. Similarly, the cross-
examination of PW27 SI Renu was deferred on 29.01.2015 at request of
learned defence counsel. Her further cross-examination was again deferred
on 30.01.2015 at request of learned defence counsel. Prosecution
Evidence was closed vide order dated 31.01.2015.
30. On 03.02.2015, statement of accused was recorded under Section
313 Cr.P.C. Learned defence counsel submitted that accused wants to
examine his wife as defence witness, but on the date fixed for her
examination, she was not examined as a defence witness. The application
of the accused seeking permission to examine himself in his defence under
Section 315 Cr.PC was allowed vide order dated 04.02.2015, for which
purpose the case was adjourned to 09.02.2015. On 09.02.2015, learned
defence counsel, Sh.Dharmender Kumar Mishra, Advocate filed his
vakalatnama on behalf of accused and earlier counsel sought discharge. At
request of the new counsel appointed by accused, the case was listed for
defence evidence. The order passed by learned Additional Sessions Judge
dated 11.02.2015 reflects that Sh. Dharamender Kumar Mishra, Advocate
inspected the Court record on 10.02.2015 and 11.02.2015. Thereafter he
filed an application for supply of documents and another application for
adjournment. The documents were supplied to him. However the request
for further adjournment was declined. Accused stated that he did not wish
to examine himself in his defence u/s 315 Cr.P.C. Accordingly the defence
evidence was closed. The matter was thereafter listed for final arguments
on 16.02.2015, on which date the application for recalling the prosecution
witnesses for further cross examination was moved.
31. The aforesaid narration of proceedings before the learned Additional
Sessions Judge clearly reflects that while posting the matter on day to day
basis, the Court‟s only endeavour was to comply with the provisions of
Section 309 Cr.P.C as far as possible while ensuring the right of the
accused to a fair trial. The earlier counsel had been seeking adjournment
for consulting the petitioner which was duly granted and under these
circumstances the submission of learned counsel for the petitioner that
justice hurried is justice buried, deserves outright rejection.
32. The other submission of learned counsel for the petitioner that Sh.
Alok Dubey, Advocate was not competent to appear as an Advocate
inasmuch as he had not even undergone screening test as required by Bar
Council of Delhi Rules and was not issued practice certificate, this
submission is not fortified by any record. Much was said against the
competency of the earlier counsel representing the petitioner. However,
learned standing counsel for the State was right in submitting that
competency of an Advocate is a subjective issue which should not have
been attacked behind the back of the concerned Advocate. In Navjot
Sandhu(supra), Hon‟ble Supreme Court referred to Strickland v.
Washington [466 US 668] making it clear that judicial scrutiny of a
counsel's performance must be careful, deferential and circumspect as the
ground of ineffective assistance could be easily raised after an adverse
verdict at the trial. It was observed therein:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel's defence
after it has proved unsuccessful, to conclude that a particular act of omission of
counsel was unreasonable. Cf. Engle v. Isaac [456 US 107] (1982). A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge in a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; ..."
33. Learned Additional Standing counsel for the State has furnished
details of the number of questions put by the earlier counsel to the
prosecution witnesses for showing the performance of the earlier counsel.
Moreover, one cannot lose sight of the fact that the Advocate was
appointed by the petitioner of his own choice.
34. The only question which remains for consideration is whether the
witnesses are required to be recalled for the purpose of further cross
examination while exercising power u/s 311 of the Code of Criminal
Procedure. Section 311 of the Code reads as under:-
"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 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."
35. In Rajaram Yadav(supra) relied upon by learned counsel for the
appellant also, the question regarding applicability of Section 311 of
Cr.P.C was under consideration. The operative portion of the judgment
which has bearing on the present petition is reproduced as under:-
"14. A conspicuous reading of Section 311 Code of Criminal Procedure would
show that widest of the powers have been invested with the Courts when it
comes to the question of summoning a witness or to recall or re-examine any
witness already examined. A reading of the provision shows that the expression
"any" has been used as a pre-fix to "court", "inquiry", "trial", "other
proceeding", "person as a witness", "person in attendance though not
summoned as a witness", and"person already examined". By using the said
expression "any" as a pre-fix to the various expressions mentioned above, it is
ultimately stated that all that was required to be satisfied by the Court was
only in relation to such evidence that appears to the Court to be essential for
the just decision of the case. Section 138 of the Evidence Act, prescribed the
order of examination of a witness in the Court. Order of re-examination is also
prescribed calling for such a witness so desired for such re-examination.
Therefore, a reading of Section 311 Code of Criminal Procedure and
Section 138 Evidence Act, insofar as it comes to the question of a criminal trial,
the order of re-examination at the desire of any person under Section 138, will
have to necessarily be in consonance with the prescription contained in
Section 311 Code of Criminal Procedure It is, therefore, imperative that the
invocation of Section 311 Code of Criminal Procedure 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 as noted by us earlier. The power vested under the said provision 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 of any person already examined, the
Court must necessarily consider and 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. Therefore, the paramount requirement is just decision and
for that purpose the essentiality of a person to be recalled and re-examined has
to be ascertained. To put it differently, while such a widest power is invested
with the Court, it is needless to state that exercise of such power should be
made judicially and also with extreme care and caution.
15. In this context, we also wish to make a reference to certain decisions
rendered by this Court on the interpretation of Section 311 Code of Criminal
Procedure where, this Court highlighted as to the basic principles which are to
be borne in mind, while dealing with an application under Section 311 Code of
Criminal Procedure In the decision reported in Jamatraj Kewalji Govani v. State
of Maharashtra, AIR 1968 SC 178, this Court held as under in paragraph 14:
"14. It would appear that in our criminal jurisdiction, statutory law confers
a power in absolute terms to be exercised at any stage of the trial to
summon a witness or examine one present in court or to recall a witness
already examined, and makes this the duty and obligation of the Court
provided the just decision of the case demands it. In other words, where
the court exercises the power under the second part, the inquiry cannot be
whether the accused has brought anything suddenly or unexpectedly but
whether the court is right in thinking that the new evidence is needed by it
for a just decision of the case. If the court has acted without the
requirements of a just decision, the action is open to criticism but if the
court's action is supportable as being in aid of a just decision the action
cannot be regarded as exceeding the jurisdiction.(Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni v. Union of India and Anr. ,
1991 Supp. (1) SCC 271, this Court again highlighted the importance of the
power to be exercised under Section 311 Code of Criminal Procedure as under
in paragraph 10:
10... In order to enable the court to find out the truth and render a just
decision, the salutary provisions of Section 540 of the Code (Section 311 of
the new Code) are enacted where under any court by exercising its
discretionary authority at any stage of enquiry, trial or other proceeding
can summon any person as a witness or examine any person in attendance
though not summoned as a witness or recall or re-examine any person in
attendance though not summoned as a witness or recall and re-examine
any person already examined who are expected to be able to throw light
upon the matter in dispute; because if judgments happen to be rendered on
inchoate, inconclusive and speculative presentation of facts, the ends of
justice would be defeated.
17. In the decision in Raj Deo Sharma (II) v. State of Bihar, 1999 (7) SCC 604, the
proposition has been reiterated as under in paragraph 9:
9. We may observe that the power of the court as envisaged in Section 311 of
the Code of Criminal Procedure has not been curtailed by this Court. Neither
in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar
Singh case such power has been restricted for achieving speedy trial. In other
words, even if the prosecution evidence is closed in compliance with the
directions contained in the main judgment it is still open to the prosecution
to invoke the powers of the court under Section 311 of the Code. We make it
clear that if evidence of any witness appears to the court to be essential to
the just decision of the case it is the duty of the court to summon and
examine or recall and re-examine any such person.(Emphasis added)
18. In U.T. Of Dadra and Nagar Haveli and Anr. v. Fatehsinh Mohansinh
Chauhan , 2006 (7) SCC 529, the decision has been further elucidated as under
in paragraph 15:
15. A conspectus of authorities referred to above would show that the
principle is well settled that the exercise of power under Section 311 Code of
Criminal Procedure should 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, this being the primary duty of a criminal court.
Calling a witness or re-examining a witness already examined for the
purpose of finding out 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 of power by the court would result in causing
serious prejudice to the accused resulting in miscarriage of justice.(Emphasis
added)
19. In Iddar and Ors. v. Aabida and Anr. , AIR 2007 SC 3029, the object
underlying under Section 311 Code of Criminal Procedure, has been stated as
under in paragraph 11:
11. The object underlying Section 311 of the Code is that there may not be
failure of justice on account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative factor is whether it
is essential to the just decision of the case. The section is not limited only for
the benefit of the accused, and it will not be an improper exercise of the
powers of the court to summon a witness under the section merely because
the evidence supports the case for the prosecution and not that of the
accused. The section is a general section which applies to all proceedings,
enquiries and trials under the Code and empowers Magistrate to issue
summons to any witness at any stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that occurs is 'at any stage of inquiry
or trial or other proceeding under this Code'. It is, however, to be borne in
mind that whereas the section confers a very wide power on the court on
summoning witnesses, the discretion conferred is to be exercised judiciously,
as the wider the power the greater is the necessity for application of judicial
mind.(Emphasis added)
20. In P. Sanjeeva Rao v. State of A.P. , AIR 2012 SC 2242, the scope of
Section 311 Code of Criminal Procedure has been highlighted by making
reference to an earlier decision of this Court and also with particular reference
to the case, which was dealt with in that decision in paragraphs 13 and 16,
which are as under:
"13. Grant of fairest opportunity to the accused to prove his innocence was the
object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of
Customs, Amritsar , (2000) 10 SCC 430. The following passage is in this regard
apposite:
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.
16. We are conscious of the fact that recall of the witnesses is being directed
nearly four years after they were examined-in-chief about an incident that is
nearly seven years old. Delay takes a heavy toll on the human memory apart
from breeding cynicism about the efficacy of the judicial system to decide cases
within a reasonably foreseeable time period. To that extent the apprehension
expressed by Mr. Rawal, that the prosecution may suffer prejudice on account
of a belated recall, may not be wholly without any basis. Having said that, we
are of the opinion that on a parity of reasoning and looking to the
consequences of denial of opportunity to cross-examine the witnesses, we
would prefer to err in favour of the Appellant getting an opportunity rather
than protecting the prosecution against a possible prejudice at his
cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and
no price is too heavy to protect that virtue. A possible prejudice to prosecution
is not even a price, leave alone one that would justify denial of a fair
opportunity to the accused to defend himself.(Emphasis added)
21. In a recent decision of this Court in Sheikh Jumman v. State of
Maharashtra , (2012) 9 SCALE 80, the above referred to decisions were
followed.
22. Again in an unreported decision rendered by this Court dated 08.05.2013
in Natasha Singh v. CBI (State) Criminal Appeal No. 709 of 2013, where one of
us was a party, various other decisions of this Court were referred to and the
position has been stated as under in paragraphs 14 and 15:
"14. The scope and object of the provision is to enable the Court to determine
the truth and to render a just decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may lead to undesirable
results. An application under Section 311 Code of Criminal Procedure must
not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite
party. Further the additional evidence must not be received as a disguise for
retrial, or to change the nature of the case against either of the parties. Such
a power must be exercised, provided that the evidence that is likely to be
tendered by a witness, is germane to the issue involved. An opportunity of
rebuttal, however, must be given to the other party.
The power conferred under Section 311 Code of Criminal Procedure must,
therefore, be invoked by the Court only in order to meet the ends of justice,
for strong and valid reasons, and the same must be exercised with great
caution and circumspection.
The very use of words such as 'any Court', 'at any stage', or 'or any enquiry',
trial or other proceedings', 'any person' and 'any such person' clearly spells
out that the provisions of this section have been expressed in the widest
possible terms, and do not limit the discretion of the Court in any way. There
is thus no escape if the fresh evidence to be obtained is essential to the just
decision of the case. The determinative factor should, therefore, be whether
the summoning/recalling of the said witness is in fact, essential to the just
decision of the case.
15. Fair trial is the main object of criminal procedure, and it is the duty of the
court to ensure that such fairness is not hampered or threatened in any
manner. Fair trial entails the interests of the accused, the victim and of the
society, and therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must be ensured as this
is a constitutional, as well as a human right. Thus, under no circumstances
can a person's right to fair trial be jeopardized. Adducing evidence in support
of the defence is a valuable right. Denial of such right would amount to the
denial of a fair trial.
Thus, it is essential that the rules of procedure that have been designed to
ensure justice are scrupulously followed, and the court must be zealous in
ensuring that there is no breach of the same. (Vide Talab Haji Hussain v.
Madhukar Purshottam Mondkar and Anr. , AIR 1958 SC 376; Zahira Habibulla
H. Sheikh and Anr. v. State of Gujarat and Ors. ,AIR 2004 SC 3114; Zahira
Habibullah Sheikh and Anr. v. State of Gujarat and Ors. , AIR 2006 SC 1367;
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258; Vijay
Kumar v. State of U.P. and Anr. , (2011) 8 SCC 136; and Sudevanand v. State
through C.B.I. , (2012) 3 SCC 387.).
23. From a conspectus consideration of the above decisions, while dealing with
an application under Section 311 Code of Criminal Procedure read along with
Section 138 of the Evidence Act, we feel the following principles will have to be
borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it?
Whether the evidence sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Code of
Criminal Procedure should ensure that the judgment should not be rendered on
inchoate, inconclusive speculative presentation of facts, as thereby the ends of
justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and re-examine any such person.
d) The exercise of power under Section 311 Code of Criminal Procedure should
be resorted to only with the object of finding out the truth or obtaining proper
proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing serious
prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not
arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine
such a witness or to recall him for further examination in order to arrive at a
just decision of the case.
h) The object of Section 311 Code of Criminal Procedure simultaneously imposes
a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not
because it would be impossible to pronounce the judgment without it, but
because there would be a failure of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good sense should be the safe guard,
while exercising the discretion. The Court should bear in mind that no party in a
trial can be foreclosed from correcting errors and that if proper evidence was
not adduced or a relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting such mistakes to
be rectified.
k) The Court should be conscious of the position that after all the trial is
basically for the prisoners and the Court should afford an opportunity to them in
the fairest manner possible. In that parity of reasoning, it would be safe to err in
favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a discretionary
power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the
nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely
to be tendered, would be germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
n) The power under Section 311 Code of Criminal Procedure must therefore, be
invoked by the Court only in order to meet the ends of justice for strong and
valid reasons and the same must be exercised with care, caution and
circumspection. The Court should bear in mind that fair trial entails the interest
of the accused, the victim and the society and, therefore, the grant of fair and
proper opportunities to the persons concerned, must be ensured being a
constitutional goal, as well as a human right."
36. The observations made by Hon‟ble Supreme Court in Kishore
Chand (supra) also deserve to be mentioned where it was held as under:-
"13............ the liberty of a citizen is a precious one guaranteed by Article 3 of
Universal Declaration of Human Rights and also Article 21 of the Constitution of
India and its deprivation shall be only in accordance with law. The accused has
the fundamental right to defend himself under Article 10 of Universal Declaration
of Human Rights. The right to defence includes right to effective and meaningful
defence at the trial. The poor accused cannot defend effectively and adequately.
Assigning an experienced defence counsel to an indigent accused is a facet of fair
procedure and an inbuilt right to liberty and life envisaged under
Article 14, 19 and 21 of the Constitution. Weaker the person accused of an
offence, greater the caution and higher the responsibility of the law enforcement
agencies.
xx xx xx xx xx xx xx xx xx xx xx
Though Article 39A of the Constitution provides fundamental rights to equal
justice and free legal aid and though the State provides amicus curiae to defend
the indigent accused, he would be meted out with unequal defence if, as is
common knowledge the youngster from the Bar who has either a little
experience or no experience is assigned to defend him. It is high time that senior
counsel practising in the court concerned, volunteer to defend such indigent
accused as a part of their professional duty."
37. Even in Salamat Ali(supra), the Division Bench of this Court set
aside the impugned judgment of conviction by observing that none can
belittle the right of every accused to be fairly and adequately represented in
a criminal trial, especially where capital sentence is involved. Counsels
play an important role in the resolution of issues in an adversarial system.
Every accused has a right to meet the case of the prosecution on even
terms. At a criminal trial involving a serious offence, the counsel for the
defence has a duty to bring such skill and knowledge so as to make a trial
reliable adversarial testing process. Reference was made to Turner v.
Duncan, the US 9th circuit Court of Appeals where it was held that no
discernible defence strategy emerged at the trial, the trial could not be
relied as having produced a just result.
38. Tested on the anvil of law aforesaid in the instant case, various
reasons have been given in the application u/s 311 Cr.P.C. as detailed in
para 15(a) to (xx) as to why recalling of the witnesses for further cross
examination is necessitated. Keeping in view the well established
principle that fair trial is the main object of criminal procedure and it is the
duty of the Court to ensure that such fairness is not hampered or threatened
in any manner and fair trial includes the grant of fair and proper
opportunity to the person concerned and the same must be ensured as this
is a constitutional as well as a human right which cannot be jeopardised
under any circumstance, as such, in the interest of justice, although
recalling of all the prosecution witnesses is not necessary, however in view
of the circumstances narrated by learned counsel for the petitioner as
detailed in para 15(a) to (xx), for ensuring fair trial, it is deemed proper to
recall certain witnesses. Moreover, petitioner is in custody and in case he
adopts delaying tactics, it is only he who would suffer. The judgments
relied upon by learned Standing counsel in Praveen Jain(supra),
Raminder Singh(supra), Prakash Chandra(supra), Noorjahan(supra) and
Dr. Rajesh Talwar(supra) were on the factual matrix of the respective
cases where application u/s 311 Cr.P.C was dismissed. In Praveen
Jain(supra), application for examining handwriting expert in defence on
the ground of change in counsel was not allowed on the ground that if the
witnesses are allowed to be recalled on such ground there would no finality
to the trial. Moreover in that case, the statement of accused was recorded
on 14.03.2008 and defence evidence was closed on 26.09.2011 after
granting number of opportunities. In Noorjahan(supra), the application
was dismissed because it did not specify material aspect of the case left out
in cross examination nor did it indicate what questions were put to the
witnesses. In Dr. Rajesh Talwar(supra), the application was dismissed on
the ground of delaying tactics adopted by the accused, yet the observations
made in the case dealt with the issue of fair trial and observed as under:-
"11. This Court in Selvi J. Jayalalithaa and Ors. v. State of Karnataka and
Ors. (Writ Petition (Crl.) No. 154 of 2013) decided on 30.9.2013, after referring
to its earlier judgments in Smt. Triveniben v. State of Gujarat , AIR 1989 SC
1335; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Capt.
Amarinder Singh v. Parkash Singh Badal and Ors. ,(2009) 6 SCC 260; Mohd.
Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750;
and Natasha Singh v. CBI , (2013) 5 SCC 741, dealt with the issue of fair trial
observing:
"28. 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 of the society. Thus, fair trial must be accorded to
every accused in the spirit of 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. In all circumstances, the courts have a duty to maintain public
confidence in the administration of justice 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.
29. 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 innocent, the trial
should be a search for the truth and not a bout 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 only 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.
30. Article 12 of the Universal Declaration of Human Rights provides for the
right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore,
fair trial is the heart of criminal jurisprudence and, in a way, an important facet
of a democratic polity and is governed by rule of law. Denial of fair trial is
crucifixion of human rights."
39. That being so, in the interest of justice, the petition is partly allowed.
Witnesses No. PW 2, 3, 4, 9, 12, 13, 14, 16, 20, 22, 24, 26 and 27 be
recalled for the purpose of further cross examination. Needless to say, it is
impressed upon the learned counsel for the petitioner not to repeat any
question which has already been put to the witnesses in their cross
examination by the earlier counsel. Furthermore, no adjournment will be
sought by him on any ground whatsoever. Keeping in view the mandate of
Section 309 Cr.P.C, the cross examination will be conducted on day to day
basis. It is further clarified that in case for any reason any witness is not
available for the purpose of further cross examination, his/her testimony
shall be read in evidence as it is. With these directions, the petition stands
disposed of. Pending applications, if any, also stand disposed off.
40. It is submitted that the matter is listed before the learned Additional
Sessions Judge today at 2 p.m, as such parties are directed to appear before
the learned Additional Sessions Judge today at 2 p.m and a date will be
fixed by the learned Additional Sessions Judge for recalling the aforesaid
witnesses for the purpose of cross examination and thereafter the matter be
proceeded in accordance with law.
41. Copy of the judgment be given dasti to the parties under the
signature of Court Master. Copy of the judgment be sent to learned Trial
Court for information and necessary action.
(SUNITA GUPTA)
JUDGE
MARCH 04 , 2015
rs/as
