Supreme Court of India
AGversusSHIV KUMAR YADAV &ANR.
- Citation
- 2015 INSC 654
- Decided
- 10 September 2015
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHAR
Holding
Recall of prosecution witnesses under Section 311 CrPC is permissible only when essential for a just decision; a mere change of counsel or alleged incompetence of counsel does not justify such recall.
Summary
The Supreme Court considered two criminal appeals filed by the Attorney General against the High Court’s order allowing the recall of all prosecution witnesses in a rape trial after the accused’s statement under Section 313 CrPC had been recorded. The accused argued that his earlier counsel was incompetent and that the new counsel needed fresh cross‑examination of the witnesses. The Court held that Section 311 CrPC permits recall only when the evidence is essential for a just decision and that a mere change of counsel or alleged incompetence does not satisfy this requirement. It emphasized the need to protect victims from repeated trauma, to avoid undue delay in fast‑track rape trials, and to exercise the discretionary power judiciously. Consequently, the High Court’s order was set aside and the application for recall dismissed. The appeals were allowed.
Issues considered
- Whether Section 311 CrPC can be invoked to recall prosecution witnesses after the accused’s statement is recorded on the ground of alleged incompetence of the defence counsel
- Whether a change of counsel alone justifies a retrial or recall of witnesses
- Balancing the accused’s right to a fair trial against the victim’s right against repeated harassment and the need for speedy disposal of rape cases
Legislation cited
- Advocates Act, 1961
- Code of Criminal Procedure, 1973s. 309, s. 311, s. 313
- Criminal Law (Amendment) Act, 2013
- Indian Evidence Act, 1872s. 138
Subjects
Section 311 CrPCrecall of witnessesfair trialcompetence of counselrape trialvictim harassmentfast‑track courtcriminal procedureevidence lawvictim rights
Judgment
[2015] 10 S.C.R. 455
AG A
v.
SHIV KUMAR YADAV &ANR.
(Criminal Appeal Nos. 1187-1188 of 2015)
SEPTEMBER 10, 2015 B
[JAGDISH SINGH KHEHAR AND
ADARSH KUMAR GOEL, JJ.]
Code of Criminal Procedure, 1973- s. 311 - Power to
summon material witness, or examine person present -_ c
Matter pertaining to commission of rape - Application u/s.
311 "for recall of prosecution witnesses, at the stage when
statement of accused has been recorded - Plea raised that
the defence counsel was not competent and had not
0
effectively cross-examined the witnesses - Held: Recall
could be permitted if essential for the just decision - Recall
is not a matter of course and discretion given to the court
has to be exercised judiciously to prevent failure ofjustice -
Instant case is in the category of cases where the trial is E
required to be fast tracked - While advancement of justice
remains the prime object of law, recall cannot be allowed for
the asking or reasons related to mere convenience -
Witnesses cannot be expected to face the hardship of
appearing in court repeatedly, particularly in such sensitive F
cases - It can result in undue hardship for victims, especially
so, of heinous crimes, if they are required to repeatedly
appear in court to face cross-examination - It would result in
undue delay in the trial - High Court did not assign a single
specific reason as to how recall of as many as 13witnesse~ G
was necessary as. directed in the impugned order - Thus,
the order passed by the High Court is set aside and
application for recall is dismissed-Administration of criminal
justice.
455 H
456 SUPREME COURT REPORTS [2015) 10 S.C.R.
A Judicial notice - Retrial on the ground of unfitness of
the counsel- Court taking notice of- Since interest of society
is paramount and instead of trials being conducted again on
account of unfitness of the counsel, reforms are necessary
so that such a situation does not arise - There is a need to
B review the Advocates Act and the relevant Rules to examine
the continued fitness of an advocate to conduct a criminal
trial by the concerned Authorities including the Law
Commission and the Bar Council of India - Advocates Act,
1961.
c
Allowing the appeals, the Court
HELD: 1.1 While advancement of justice remains the
prime object of law, it cannot be understood that recall
0 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
E follow on every change of a counsel, can have serious
consequences on conduct of trials and th~ criminal
justice system. 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
F in undue hardship for victims, especially so, of heinous
· crimes, if they are required to repeatedly appear in court
to face cross-examination. The interest of justice may
suffer if the counsel conducting the trial is physically or
mentally unfit on account of any disability. The interest
G 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. [Paras 15, 16] [477-F-H; 478-A-
H B]
1.2 The instant case is in the category of cases where
AG v. SHIV KUMAR YADAV &ANR. 457
the trial is required to be fast tracked. Referring to the A
ground of the earlier counsel not being competent, the
trial court observed that the counsel was of the choice
of the accused. The accused was not facing a criminal
trial for the first time. The cross-examination of witnesses
was deferred time and again to enable the counsel to B
seek instructions from the accused. lnspite of the High
Court not having found any fault in the conduct of the
proceedings, it held that "although recalling of all the
prosecution witnesses is not necessary~· recall of certain
witnesses was necessary for the reasons given in the C
application of the accused. It was observed that the
accused was in custody and if he adopted delaying
tactics it is qnly he who would suffer. It is difficult to
approve the view taken by the High Court. [Para 22, 26
0
and 27) [484-H; 485-A; 492-C-E]
1.3 Undoubtedly, fair trial is the objective and it is
the duty of the court to ensure such fairness. Width of
power under Section 311 Cr.P.C. is beyond any doubt.
Not a single specific,reason has been assigned by the E
High Court as to how in the instant 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 reasoi:is pressed before F
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 G
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 H
witnesses to be recalled which could not be justified on
458 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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 instant case. Mere observation that recall
B was necessary "for ensuring fair trial" is not enough
unless there are tangible reasons4:o 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 judtciously to prevent failure of justice and not
C 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
0
has to be balanced carefully with the other relevant
considerations including uncalled for hardship to the
witnesses and uncalled for delay in the trial. In view
thereof, there is no ground to justify the recall of
E witnesses already examined. [Para 27] [492-E-H; 493-A-
D]
1.4 The High Court allowed the prayer of the
accused, even while finding no error in the view taken
by the trial court, merely by saying tf'iat exercise of power
F 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 was
affirmed. Thus, the conclusion appears to be
G inconsistent with the reasons in the impugned order.
[Para 28] [493-F-G]
1.5 The view of the High Cour:t is disapproved due
to the following reasons: ,,
H
(i) The trial court and the High Court held that the
AG v. SHIV KUMAR YADAV &ANR. 459
accused had appointed counsel of his choice. He A ·
was facing trial in other cases also . .,.he earlier
counsel were given due opportunity and had duly
conducted cross-examination. They were under no
handicap;
B
(ii) No finding could be recorded that the counsel
appointed by the accused were incompetent
particularly at back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged c
in the instant 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 D
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 E
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 F
recall the witnesses;
(viii) There is no basis for holding that any prejudice
will be caused to the accused unless the witnesses
are recalled; G
(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 H
460 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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;
. B
(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. [Para 29) [494-A-H, 495-A-C]
c
1.6 The impugned order passed by the High Court
is set aside and the application for recall is dismissed.
[Para 30) [495-D]
Rajaram Prasad Yadav vs. State of Bihar 2013
D
(7) SCR 420: (2013) 14 SCC 461; Mannan Sk
VS. State of West Bengal (2014) 13 sec 59; P.
Sanjeeva Rao vs. State ofA.P. 2012 (6) SCR 787:
(2012) 7 SCC 56; State of Punjab vs. Gurmit Singh
E 1996 (1) SCR 532: (1996) 2 sec 384; State of
Karnataka VS. Shivanna (2014) 8 sec 916;
Hoffman Andreas vs. Inspector of Customs (2000)
10 SCC 430; Dayal Singh vs. State of Uttarancha/
2012 (10) SCR 157: (2012) 8 SCC 263; Devender
F Pal Singh vs. State (NCT of Delhi) 2002 (2) SCR
767: (2002) 5 sec. 234; NHRC vs. state of
Gujarat 2009 (7) SCR 236: (2009) 6 SCC 767;
Swaran Singh vs. State of Punjab 2000 (3) SCR
. 572 : (2000) 5 SCC 668; P. Ramachandra Rao
G VS. State of Karnataka (2002) 4 sec 578; Delhi
Domestic Working Women' Forum vs. Union of
India 1994 (4) Suppl. SCR 528: (1995) 1 SCC
14; Natasha Singh vs. CBI 2013 (5) SCR 539:
(2013) 5 SCC 741; Mohan/a/ Shamji Soni vs.
H Union of India 1991 (1) SCR 712: (1991) Supp.
AG v. SHIV KUMAR YADAV &ANR. 461
1 SCC 271; Zahira Habibul/a H. Sheikh vs. State A
ofGujarat2004(3) SCR 1050: (2004) 4SCC 158;
Sister Mina Lalita Baruwa vs. State of Orissa 2013
(16) SC~ 788: (2013) 16 SCC 173; Raminder
Singh vs. State Crl.M.C.847912006 & Crl.M.A.
1435912006 decided on 20.02.2008 (Delhi H.C.); B
Rama Paswan vs. State of Jharkhand 2007 (5)
SCR 83: (2007) 11 SCC 191; Nisar Khan vs. State
of Uttaranchal (2006) 9 SCC 386; Hussainara
Khatoon (/) vs. Home Secy. State of Bihar 1979
(3) SCR 169: (1980) 1 SCC 81; Vijay Kumar vs. c
State of U.P 2011 (11) SCR 893: (2011) 8 sec
136; Kishore Chand vs. State of Himachal
Pradesh 1990 (1) Suppl. SCR 105: (1991) 1 SCC
286; Hardeep Singh vs. State of Punjab 2008 (15)
D
SCR 735: (2009) 16 SCC 785; Ram Chandervs.
State of Haryana 1981 (3) SCR 12: (1981) 3 SCC
191; State of Rajasthan vs. Ani@ Hanif 1997 (1)
SCR 199: (1997) 6 SCC 162; Ritesh Tewari vs.
State ofU.P 2010 (11) SCR 589: (2010) 10 SCC E
677; Maria Margarida Sequeria Fernandes vs.
Erasmo Jack De Sequeria (dead) through Lrs.
2012 (3) SCR 841: (2012) 5 SCC 370; Rajeshwar
Prosad Misra vs. State of West Bengal (1966) 1
SCR 178; Jamatraj Kewalji Govanivs. The State F
of Maharashtra (1967) 3 SCR 415; Raghunandan
vs. State of U.P 1974 (3) SCR 92: (1974) 4 sec
186; Shailendra Kumar vs. State of Bihar 2001
(5) Suppl. SCR 371: (2002) 1 SCC 655; Satyajit
Banerjee vs. State of West Bengal 2004 (6) Suppl. G
SCR 294: (2005) 1 SCC 115; U. T. of Dadra &
Haveli vs. Fatehsinh Mohansinh Chauhan 2006
(4) Suppl. SCR 522: (2006) 7 SCC 529; lddar
vs. Aabida 2001 (8) SCR 518: (2007) 11 sec
211; HimanshuSinghSabharwalvs. StatedfM.P H
462 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 2008 (4) SCR 783: (2008) 3 SCC 602; Godrej
Pacific Tech. Ltd. vs. Computer Joint India Ltd.
2008 (11) scR 571: (2008) 11 sec 108;
Hanuman Ram vs. The State of Rajasthan 2008
(14) SCR 348: (2008) 15 SCC 652; Sudevanand
B vs. State through CBI 2012 (2) SCR 139: (2012)
3 SCC 387; Mohd. Hussain@JulfikarA/ivs. The
State (Govt. of NCT) Delhi AIR (2012) SC 750:
2012 (1) SCR 64; J. Jayalalithaa vs. State of
Karnataka (2014) 2 SCC 401; Salamat Ali vs.
c State Crl.A. No.242/2010, High Court of Delhi;
State (NCT of Delhi) vs. Navjot Sandhu 2005 (2)
Suppl. SCR 79: (2005) 11 sec 609; Mir. Mohd.
Omar vs. State of WB. 1989 (3) SCR 735: (1989)
4 SCC 436; Lt. Col. S.J. Chaudharyvs. State (Delhi
D
Administration) 1984 (2) SCR 438: (1984) 1 SCC
722; State of UP. vs. Shambhu Nath Singh 2001
(2) SCR 854: (2001) 4 SCC 667; Aki/ @ Javed
vs. State of NCT of Delhi 2012 (13) SCR 659:
E (2013) 7 SCC 125; Vinod Kumar vs. State of
Punjab 2015 (1) SCR 504: (2015) 1SCALE542;
Jasbir Singh vs. State of Punjab 2006 (7) Suppl.
SCR 174: (2006) 8 sec 294- referred to.
Case Law Reference
F
2013 (7) SCR 420 referred to. Para 6
(2014) 13 sec 59 referred to. Para 6
G 2012 (6) SCR 787 referred to. Para 6
1996 (1) SCR 532 referred to. Para 6
(2014) 8 sec 916 referred to. Para 6,18
H (2000) 1o sec 430 referred to. Para 6
AG v. SHIV KUMAR YADAV &ANR. 463
2012 (10) SCR 157 referred to. Para 6 A
2002 (2) SCR 767 referred to. Para 6
2009 (7) SCR 236 re.ferred to. Para 6
· 2000 (3) SCR 572 referred to. Para 6 B
(2002) 4 sec 578 referred to. Para 7
1994 (4) Suppl. SCR 528 referred to. Para 7
2013 (5) SCR 539 referred to. Para 7 c
1991 (1) SCR 712 referred to. Para 7
2004 (3) SCR 1050 referred to. Para 7
D
2013 (16) SCR 788 referred to. Para 7
2007 (5) SCR 83 referred to. Para 7
(2006) 9 sec 386 referred to. Para 7
E
1979 (3) SCR 169 referred to. Para 7
2011 (11) SCR 893 referred to . Para 7
.
1990 (1) Suppl. SCR 105 referred to. Para 8
F
2008 (15) SCR 735 referred to. Para 8
1981 (3) SCR 12 referred to. Para 8
1997 (1) SCR 199 referred to. Para 8
G
2010 (11) SCR 589 referred to. Para 8
2012 (3) SCR 841 referred to. Para 8
(1966) 1 SCR 178 referred to. Para 8
H
464 SUPREME COURT REPORTS [2015] 10 S.C.R.
A (1967) 3 SCR 415 referred to. Para 8
1974 (3) SCR 92 referred to. Para 8
2001 (5) Suppl. SCR 371 referred to. Para 8
B 2004 (6) Suppl. SCR 29~ referred to. Para 8
2006 (4) Suppl. SCR 522 referred to. Para 8
2007 (8) SCR 518 referred to. Paras
c 200S (4) SCR 7S3 referred to. Para S
200S (11) SCR 571 referred to. Para S
200S (14) SCR 34S referred to. Para S
D
2012 (2) SCR 139 referred tO. Paras
2012 (1) SCR 64 referred to. Paras
(2014) 2 sec 401 referred to. Paras
E
2005 (2) Suppl. SCR 79 referred to. Para 17
19S9 (3) SCR 735 referred to. Para 20
19S4 (2) SCR 43S referred to. Para 23
F
2001 (2) SCR S54 referred to. Para 23
2012 (13) SCR 659 referred to. Para 23
2015 (1) SCR 504 referred to. Para 23
G
2006 (7) Suppl. SCR 174 referred to. Para 28
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
Nos. 1187-1188 of 2015.
H
From the Judgment and Order dated 04.03.2015 of the
AG v. SHIV KUMAR YADAV &ANR. 465
High Court of Delhi at New Delhi in Crl. M.C. 725 of 2015 and A
Crl. MA 2765 of2015.
WITH
CRL.A. NOS.1191-1192of2015
B
Mukul Rohatgi, AG, P.S. Patwalia, ASG, Kailash Vasdev,
Colin Gonsalves, Devanshee P., Ajay Sharma, Binu Tamta,
Samit, Ranjeeta Rohatgi, Gurmehar Sistani, Archit Upadhyay,
Dhruv Sheoran, Natasha Vinayak, Rajat Singh, Sukhmani, (for
D.S. Mahra) Sumeeta Choudhary, Satya Mitra, Divya Jyoti C
Jaipuriar for the Appellant.
D.K. Mishra,AnkitAggarwal, M.Z.Ali,Abhinav Mishra, (for
Bankey Bihari) for the Respondents.
D
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted. The issue
raised for consideration in these appeals is whether recall of
witnesses, at the stage when statement of accused under E
Section 313 of the Code of Criminal Procedure ("Cr.P.6.") has
been recorded, could be allowed on the plea that the defence
counsel was not competent and had not effectively cross-
examined the witnesses, having regard to the facts and
circumstances of this case. F
2. Facts relevant for deciding the issue lie in a narrow
compass. On Sth December, 2014, a First Information Report
was lodged alleging that the respondent accused who was
the driver of cab No.DL-1YD-7910, SwiftDezire, hire(:! by the G
victim on 5th December, 2014 for returning home from her-0ffice
committed rape on her. The statement of the prosecutrix was
recorded under Section 164 Cr.P.C. on 81h December, 2014.
After investigation, charge sheet was filed before the
Magistrate on 241h December, 2014. Since the accused was H
466 SUPREME COURT REPORTS [2015] 10 S.C.R.
A not represented by counsel, he was provided legal aid counsel.
Thereafter on 2nct January, 2015, the accused engaged his
private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in
place of the legal aid counsel. Thereafter, the case was
committed to the Court of Session. Charges were framed on
B 13th January, 2015. Prosecution evidence commenced on 15th
January, 2015 and was closed on 31•1 January, 2015. The
witnesses were duly cross-examined by the counsel engaged
by the accused. Statement of the accused under Section 313
Cr.PC. was recorded on 3rct February, 2015. On 4th February,
C 2015,,an application for recall of prosecutrix PW2 ar:id formal
witness PW-23 who booked the cab was made, but the same
was rejected and the said order was never challenged.
Thereafter, on 9th February, 2015, the accused engaged
another counsel, who filed another application under Section
0
311 Cr.P.C. for recall of all the 28 prosecution witnesses on
16th February, 2015. The said application was dismissed on
18th February by the trial court but the same was allowed by
the High Court vide impugned order dated 4th March, 2015 in
E a petition filed under Article 227 of the Constitution of India
read with Section 482 Cr.PC. Even though the specific
grounds"urged in the application were duly considered and
rejected, it was observed that recall of certain witnesses was
deemed proper for ensuring fair trial.
F
3. Aggrieved by the order of the High Court, the victim as
well as the State have moved this Court.
4. On 101h March, 2015, when the matter came up for
hearing before this Court, stay of further proceedings was
G granted but since the prosecutrix had already been recalled in
pursuance of the impugned order and further cross-examined,
the said deposition was directed to be kept in the sealed cover
and publication thereof by anyone in possession thereof was
H restrained.
AG v. SHIV KUMAR YADAV &ANR. 467
[ADARSH KUMAR GOEL, J.]
5. We have heard learned Attorney General appearing for A
the State, Shri Colin Gonsalves, learned senior counsel
appearing for the victim and Shri D.K. Mishra, learned counsel
appearing · for
the accused.
B
6. Learned Attorney General submitted that the view taken
by the High Court was erroneous and true scope of power of
recall has not been appreciated. Firstly, though the power of
recall is very wide and could ~e exercised at any stage, it could
not be exercised mechanically, without just and adequate C
grounds. At the end of the trial, exercise of such power was
permissible only in exceptional situations. Once trial is
conducted by a counsel, another counsel could not seek retrial
or recall of all the witnesses merely by alleging that the previous
counsel was not competent. At any rate, the court permitting D
such a course must record cogent reasons. Secondly,
harassment of the victim on being recalled for cross-
examination was a relevant factor which was required to be
taken into account. Thirdly, expeditious trial in a heinous offence
was another factor which was required to be taken into account. E
In this case, a further factor which the impugned order ignores
is that the respondent was not facing a criminal case for the
first time. He was facing three cases of rape earlier and was
well conversant with the legal matters. He had made his own F
informed choice in appointing a counsel. Interference by the
High Court was permissible only when the view taken by the
trial court declining prayer for recall was found to be perverse
or unjust. It was further pointed out that the conclusion recorded
by the High Court was contrary to the findings in the order G
rejecting various grounds raised in support of prayer for recall.
Learned Attorney General made reference to decisions of this
Court in Rajaram Prasad Yadavvs. State of Bihal", Mannan
1
(2013) 14 sec 461 H
468 SUPREME COURT REPORTS [2015] 10S.C.R.
A Sk vs. State of West BenqaP, P. Sanjeeva Rao vs. State of
A;P. 3, State ofPunjab vs. Gurmit Singh', State ofKamataka
vs. Shivanna 5, Hoffman Andreas vs. Inspector of
Customs 6, Dayal Singh vs. State of Uttaranchal 7,
Devender Pal Singh vs. State (NCT of Delhi}',
B NHRC vs. State of Gujarat!', Swaran Singh vs. State of
Punjab 10•
7. Shri Gonsalves, learned senior counsel adopted the
submissions of learned Attorney General and further submitted
C that the High Court appears to have been impressed by the
fact that the accused was in custody and thus had no reason
to delay the trial. A presumption that an accused in custody
will not delay the trial was not well founded and could not be a
valid consideration for retrial or recall of prosecutrix and other
D witnesses. The prosecutrix had already faced court
proceedings while recording her statement under Section 164
Cr.P. C. and while facing cross-examination for three days. He
also placed reliance on P. Ramachandra Rao vs. State of
Karnataka 11, Delhi Domestic Working Women' Forum vs.
E Union oflndia12, Natasha Singh vs. CB/13, Mohan/al Shamji
2
sec 59
(2014) 13
' (2012) 7 sec 56
F • (1996) 2 sec 384
• (2014) 8 sec 916
• (2000) 10 sec 430
1
(2012) 8 sec 263
• (2002) 5 sec 234
G • (2009) 6 sec 767
1
• (2000) 5 sec 668
11
(2002) 4 sec 578
12
(1995) 1 sec 14
H " (2013) 5 sec 741
AG v. SHIV KUMAR YADAV &ANR. 469
[ADARSH KUMAR GOEL, J.]
Soni vs. Union of lndia 14, Zahira Habibulla H. Sheikh vs. A
· State of Gujarat15; Sister Mina· Lalita Baruwa vs. State of
Orissa 16, Raminder Singh vs. State 17, Rama Paswan vs.
State of Jharkhand18, Nisar Khan vs. State of UttarancharP,
Hussainara Khatoon OJ vs. Home Secv. State of Biharo
and Vijay Kumar vs. State of U.P. 21• B
8. Learned counsel for the respondent-accused
supported the impugned order and submitted that though the
previous counsel had cross-examined the witnesses, he had
not asked relevant questions nor given suggestions which were C
required to be given. He placed reliance on Kishore Chand
vs. State of Himachal Pradesh 22, Hardeep Singh vs. State
of Punjab 23, Ram Chander vs. State of Harvana 24, State of
Rajasthan vs. Ani @ HaniP5, Ritesh Tewari vs. State of
U.P. 26, Maria Margarida Segueria Fernandes vs. Erasmo D
Jack De Segueria (dead) through Lrs. 27, Rajeshwar
Prasad Misra vs. State of West Benqa/28, Jamatraj Kewa/ii
" (1991 l supp. 1 sec 211
" (2004 l 4 sec 1s8 E
1
• (2013) 16 sec 113
17
CrU!'l.C.847912006 & Crt.M.A. 14359/2006, decided on 20:02.2008 (Delhi
H.C.)
1• (2001) 11 sec 191
" (2006) 9 sec 386 F
20
(1980) 1 sec 81
21
(2011) 8 sec 136
22 (1991) 1 sec 286
23
(2009) 16 sec 785
G
,. (1981) 3 sec 191
" (1997) 6 sec 162
.. (201 o) 10 sec 677
21
(2012) 5 sec 310
28
(1966) 1 SCR 178 H
470 SUPREME COURT REPORTS [2015] 10 S.C.R.
A Govani vs. The State of Maharashtra 29, Raghunandan vs.
State of U.P. 30, Shai/endra Kumar vs. State of Bihar 1, .
Satvaiit Banerjee vs. State of West BengaP2, U. T. of Dadra
& Have/i vs. Fatehsinh Mohansinh Chauhan 33, lddar vs.
Aabida34, Himanshu Singh Sabharwal vs. State of M.P. 35,
B Godrei Pacific Tech. Ltd. vs. Computer Joint India Ltd. 36,
Hanuman Ram vs. The State of Rajasthan 37, Sudevanand
vs. State through CB/3 8, Mohd. Hussain @Ju/fikar Ali vs.
The State (Govt. of NCTJ Delhi39, J. Jayalalithaa vs. State
of Karnataka4°, Salamat Ali vs. State (Crl.A. No.24212010,
C High Court of Delhi).
9. We have considered the rival submissions.
10. It can hardly be gainsaid that fair trial is a part of
o guarantee under Article 21 of the Constitution of India. Its
content has primarily to be determined from the stat1Jtory
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
E for. It is also true that principle of fair trial has to be kept in
mind for interpreting the statutory provisions.
29
(1967) 3 SCR 415
'' (1974) 4 sec 186
F " (2002) 1 sec 655
32
(2005) 1 sec 115
33
(2006) 7 sec 529
" (2007) 11 sec 211
35
(2008) 3 sec 602
G 3
• (2008) 11 sec 108
" (2ooa) 15 sec 652
3
• (2012) 3 sec 387
39
AIR (2012) SC 750
H '° (2014) 2 sec 401
AG v. SHIV KUMAR YADAV &ANR. 471
[ADARSH KUMAR GOEL, J.]
11. It is further well settled that fairness of trial has to be A
seen not only from the point of view of the accused, but also
from the pointofviewofthe victim and the society. In the name
offairtrial, 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 B
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 C
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
0
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 E
this case .
.12. In Raja ram case, the complainant was examined ~ut
he did not support the prosecution case. On account of
subsequent events he changed his mind and applied for recall F
under Section 311 Cr.P.C. which was declined by the trial court
but allowed by the High Court. This Court held such a course
to be impermissible, it was observed :
"13. .. In order to appreciate the stand of the appellant
it will be worthwhile to refer to Section 311 CrPC, as well G
as Section 138 of the Evidence Act. The same are
extracted hereunder:
Section 311, Code of Criminal Procedure
H
472 SUPREME COURT REPORTS [2015] 10 S.C.R.
A "311. Power to summon material witness, or
examine person present.-Any court may, at any
stage of any inqui,Y, trial or other proceeding under this
Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a
B 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."
c
* * *
Section 138, Evidence Act
"138. Order of examinations.-Witnesses shall be first
D
examined-in-chief then (if the adverse party so desires)
cross-examined, then (if the party calling him so
desires) re-examined.
The examination and cross-examination must relate
E to relevant facts but the cross-examination need not
be confined to the facts to which the witness testified on
his examination-in-chief.
Direction of re-examination.-The re-examination
F shall be directed to the explanation of matters refe"ed
to in cross-examination; and if new matter is, by
permission of the court, introduced in re-examination,
the adverse party may further cross-examine upon that
matter."
G
14. A conspicuous reading of Section 311 CrPC would
show that widest of the powers have been invested with
the courts when it comes to the question of summoning
a Vi(itness or to recall or re-examine any witness already
H examined. A reading of the provision shows that the
AG v. SHIV KUMAR YADAV &ANR. 473
[ADARSH KUMAR GOEL, J.]
expression "any" has been used as a prefix to "court", A
"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 prefix to the various
expressions mentioned above, it is ultimately stated B
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. The order of C
re-examination is also prescribed calling for such a
witness so desiredfor such re-examination. Therefore,
a reading of Section 311 CrPC and Section 138
Evidence Act, insofar as it comes to the question of a D
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 CrPC. It is, therefore,
imperative that the invocation of Section 311 CrPC and E
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 F
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 G
examined. Insofar as recalling and re-examination of
any person already examined is concerned, 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 H
474 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
B such power should be made judicially and also with
extreme care and caution."
13. After referring to earlier decisions on the point, the
Court culled out following principles to be borne in mind
c
"17. 1. 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
o ajustdecision ofa case?
17.2. The exercise of the widest discretionary power
under Section 311 CrPC should ensure that the
judgment should not be rendered on inchoate,
E inconclusive and speculative presentation of facts, as
thereby the ends ofjustice would be defeated.
17.3. If evidence of any witness appears to the court to
be essential to the just decision of the case, it is the
power of the court to summon and examine or recall
F
and re-examine any such person.
17.4. The exercise of power under Section 311 CrPC
should be resorted to only with the object offinding out
the truth or obtaining proper proof for such facts, which
G will lead to a just and correct decision of the case.
17. 5. The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless the
fads and circumstances of the case make it apparent
H that the exercise of power by the court would result in
AG v. SHIV KUMAR YADAV &ANR. 475
[ADARSH KUMAR GOEL, J.]
causing serious prejudice to the accused, resulting in A
miscarriage of justice.
17. 6. The wide discretionary power should be exercised
judiciously and not arbitrarily.
B
17. 7. The court must satisfy itself that it was in every
respect essential to examine such a witness or to recall
him for further examination in order to arrive at a just
decision of the case.
17.8. The object of Section 311 CrPC simultaneously C
imposes a duty on the court to determine the truth and
to render a just decision.
17.9. The court arrives at the conclusion that additional
evidence is necessary, not because it would be D
impossible to pronounce the judgment without it, but
because there would be a failure ofjustice without such .
evidence being considered.
17.10. Exigency of the situation, fair play and good E
sense should be the safeguard; 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 F
inadvertence, the court should be magnanimous in
permitting such mistakes to be rectified.
17.11. The court should be conscious of the position
that after all the trial is basically for the prisoners and G
the court shfJuld 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. H
476 SUPREME COURT REPORTS [2015] 10S.C.R.
A The court should bear in mind that improper or
capricious exercise of such a discretionary power, may
lead to undesirable results.
17.12. The additional evidence must not be received
B as a disguise or to change the nature of the case against
any of the party
17. 13. The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would be
c · germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
17.14. The power under Section 311 CrPC must
therefore, be invoked by the court only in order to meet
the ends ofjustice for strong and valid reasons and the
D
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
E opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a human
right."
14. In Hoffman Andreas case, the counsel who was
F 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 illness
of the counsel. This prayer was allowed in peculiar
circumstances with the observation that normally a closed trial
G 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 obs'erved :
"6. Normally, at this late stage, we would be disinclined
to open .up a closed trial once again. But we are .
H
AG v. SHIV KUMAR YADAV &ANR. 477
[ADARSH KUMAR GOEL, J.]
persuaded to consider it in this case on account of the A
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 B
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 C
certain aspects. In such circumstances, if the new
counsel thought tp have the material witnesses further
examined the Court could adopt latitude and a liberal
view in the interest ofjustice, particularly when the Court
0
has unbridled powers in the matter as enshrined in
Section 311 pf 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 E'
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 F
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 . G
serious consequences on conduct of trials and the criminal
justice system. 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 victims, especially so, of heinous crimes, if they H
478 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
s 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
C 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 ~dvocate who conducted
trial was unfit or incompetent. This is an aspect which needs
to be looked into by the concerned authorities including the
D Law Commission and the Bar Council of India.
17. In State (NCT of Delhi) vs. Na'vjot Sandht.r11 , this
.Court held:
.E "167. . . . . . . . . .. we do not think that the Court should
dislodge the counsel and go on searching for some
other counsel to the liking of the accused. The right to
legal aid cannot be taken thus far. It is not demonstrated
before us as to how the case was mishandled by the
F · advocate appointed as amicus except pointing out stray
instances pertaining to the cross-examination of one
or two witnesses. The very decision relied upon by the
learned counsel for the appellant, namely, Strickland
v. Washington makes it clear that judicial scrutiny of a
G 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:
H " (2oos) 11 sec aoo
AG v. SHIV KUllliAR YADAV &ANR. 479
[ADARSH KUMAR GOEL, J.]
"Judicial scrutiny of the counsel's performance must A
be highly deferential. It is all too tempting for a
defendant to second-guess the counsel's assistance
after conviction or adverse sentence, and it is all too
easy for a court, examining the counsel's defence after
it has proved unsuccessful, to conclude that a particular B
act of omission of the counsel was unreasonable. Cf.
Engle v. Isaac {456 US 107 (1982) at pp. 133-134). A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of the C
counsel's challenged conduct, and to evaluate the
conduct from the counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court ·must indulge in a strong
0
presumption that the counsel's conduct falls within the
wide range of reasonable professional assistance; .... "
18. It may be proper to recall that the present case is in
the category of cases where the trial is required to be fast
tracked. In fact this Court directed in Shivanna [(2014) 8 SCC E
916] as under:
"2. While we propose to consider this matter on merits
after service of notice to the respondent-accused, we feel
acutely concerned as to why the Union of India should F
not take initiative and steps to evolve a procedure for
fast-track justice to be adopted by the investigating
agencies and the Fast Track Courts by proposing
amendments to CrPC for speedy justice to the victim.
G
3. Fast Track Courts no doubt are being constituted for
expeditious disposal of cases involving the charge of
rape at the trial stage, but we are perturbed and
anguished to notice that although there are Fast Track
Courts for disposal of such cases, we do not yet have a H
480 SUPREME COURT REPORTS [2015) 10 S.C.R.
A fast-track procedure for dealing with cases of rape and
gang rape lodged under Section 376 /PC with the result
that such heinous offences are repeated incessantly.
4. We are of the considered opinion that there is pressing
B need to introduce drastic amendments to CrPC in. the
nature of fast-track procedure for Fast Track Courts and
here is an occasion where we deem it just and appropriate
to issue notice and call upon the Union of India to file its
response as to why it should not take initiative and sincere
c steps for introducing necessary amendment into CrPC,
1973 involving trial for the charge of "rape" by directing
that all the witnesses who are examined in relation to the
offence and incident of rape cases should be
straightaway produced· before the Magistrate for
D recording their statement to be kept in sealed cover and
thereafter the same be treated as evidence at the stage
of trial which may be put to test by subjecting it to cross-
examination. We are further of the view that the statement
of victim should as far as possible be recorded before
E the Judicial Magistrate under Section 164 CrPC skipping
over the recording of statement by the police under
Section 161 CrPC which in any case is inadmissible
except for contradiction so that the statement of the
accused thereafter be recorded under Section 313 CrPC.
F
The accused then can be committed to the appropriate
court for trial whereby the trial court can straightaway allow
cross-examination of the witnesses whose evidence were
recorded earlier before the Magistrate.
G 5. What we wish to emphasise is that the recording of
evidence of the victim and other witnesses multiple times
ought to be put to an end which is the primary reason for
delay of the trial. We are of the view that if the evidence
is recorded for the first time itself before the Judicial
H
Magistrate under Section 164 CrPC and the same be
AG v. SHIV KUMAR YADAV &ANR. 481
[ADARSH KUMAR GOEL, J.]
kept in sealed cover to be treated as deposition of the A
witnesses and hence admissible at the stage of trial with
liberty to the defence to cross-examine them with further
liberty to the accused to lead his defence witnesses and
other evidence with a right to cross-examination by the
prosecution, it can surely cut short and curtail the B
protracted trial if it is introduced at least for trial of rape
cases which is bound to reduce the duration of trial and
thus offer a speedy remedy by way of a fast-track
procedure to the Fast Track Court to resort to.
c
6. Considering the consistent recurrence of the heinous
crime of rape and gang rape all over the country including
the metropolitan cities, we are of the view that it is high
time such measures of reform in CrPC be introduced
after due deliberation and debate by the legal frate_rnity D
as also all concerned. We, therefore, deem it just and
appropriate to issue notice to the Union of India through
the Attorney General which the counsel for the petitioner
is directed to serve by way of dasti summons. The matter
.
be posted again on 3-9-2013 for further consideration." E
19. In continuation of the above, further order dated 25th
April, 2014 [(2014) 8 sec 913] was passed as follows:
"10.1. Upon receipt of information relating to the F
commission of offence of rape, the investigating officer
shall make immediate steps to take the victim to any
Metropolitan/preferably ~udicial Magistrate for the
purpose of recording her statement under Section 164
CrPC. A copy of the statement und.er Section 164 CrPC G
should be handed over to the investigating officer
immediately with a specific direction that the contents
of such statement under Section 164 CrPC should not
be disclosed to any person till charge-sheet/report
under Section 173 CrPC is filed. H
482 SUPREME COURT REPORTS .[2015) 10S.C.R.
A 10.2. The investigating officer shall as far as possible
take the victim to the nearest Lady Metropolitan/
preferably Lady Judicial Magistrate.
10.3. The investigating officer shall record specifically
B the date and the time at which he learnt about the
commission of the offence of rape and the date and
time at which he took the victim to the Metropolitan/
preferably Lady Judicial Magistrate as aforesaid.
c 10.4. lfthere is any delay exceeding 24 hours in taking
the victim to the Magistrate, the investigating officer
should record the reasons for the same in the case diary
and hand over a copy of the same to the Magistrate.
10.5. Medical examination of the victim: Section 164-
D
A CrPC inserted by Act 25 of 2005 in CrPC imposes
an obligation on the part of investigating officer to get
the victim of the rape immediately medically examined.
A copy of the report of such medical examination should
E be immediately handed over to the Magistrate who
records the statement of the victim under Section 164
CrPC.
11. A copy of this order thus be circulated to all the
Directors General of Police of all the States/
F
Commissioners of Police in Metropolitan cities!
Commissioners of Police of Union Territories who are
then directed to send a qopy of this order to all the Police
Stations-in-Charge in tbelr States/Union Territories for
G its compliance in cases which are registered on or after
the receipt of a copy of these directions. Necessary
instructions by the DGPs!Commissioners of Police be
also issued to all the Police Stations-in-Charge by the
DGPs/Commissioners of Police incorporating the
H directions issued by us and recorded hereinbefore."
AG v. SHIV KUMAR YADAV &ANR. 483
[ADARSH KUMAR GOEL, J.]
20. In Mir. Mohd. Omar vs. Stateof W.B.' 2 after the A
statement of the accused under Section 313 was recorded,
the public prosecutor filed an application for his re-examination
on the ground that some more questions are required to be
asked. The application was rejected by the trial court but
allowed by the High Court. This Court disapproved the course B
adopted and held :
"16 ........... Here again it may be noted that the
prosecution has closed the evidence. The accused
have been examined under Section 313 of the Code. C
The prosecution did not at any stage move the trial.
Judge for recalling PW 34 for further examination. In
these circumstances, the liberty reserved to the
prosecution to recall PW 34 for re-examination is
undoubtedly uncalled for." D
21. We may also note that the approach to deal with a
case of this nature has to different from other cases. We may·
refer to the judgment of this court in Gurmit Singh case,
wherein it was observed: E
"8. . ........ The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to
make a humiliating statement against her honour such F
as is involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies
in the statf!n:ient of the pros~cutrix should not, unless G
the discrepancies are such which are offatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
" (1989) 4 sec 436 H
484 SUPREME COURT REPORTS [2015) 10 S.C.R.
A tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should find
B no difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable ....... "
c xxxxx
21. Of late, crime against women in general and rape
in particular is on the increase. It is an irony that while
we are celebrating woman's rights in all spheres, we
o show little or no concern for her honour. It is a sad
reflection on the attitude of indifference of the society
towards the violation of human dignity of the victims of
sex crimes. We must remember that a rapist not only
violates the victim's privacy and personal integrity, but
E inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault - it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very
F soul of the helpless female. The courts, therefore,
shoulder a great responsibility while trying an accused
on charges of rape. They must deal with such cases
with utmost ~ensitivity .... "
G 22. We may now refer to the orders passed by the trial
Court dated 18th February, 2015 and the High Court dated 4th
March, 2015. Referring to the ground of the earlier counsel
not being competent, the trial court observed that the counsel
was of the choice of the accused. The accused was notfacing
H a criminal trial for the first time.The cross-examination of
AG v. SHIV KUMAR YADAV &ANR. 485
[ADARSH KUMAR GOEL, J.]
witnesses was deferred time and again to enable the counsel A
to seek instructions from the accused. The cross-examination
of the prosecutrix was deferred on 15th January, 2015 to enable
the counsel to have legal interview with the accused. After
part of cross-examination on 16th January, 2015, further cross-
examination was con,cluded on 17th January, 2015. Cross- B
examination of PW 13 was deferred on the request of the
accused. Similarly, cross-examination of Pws·22, 26 and 27
was deferred on the request of the defence counsel. After
referring to the record, the trial court observed as under:
c.
"22. The aforesaid proceedings clearly bely the claim
of the accused/applicant that the case has been
proceeding at a "hurried pace" or that he was not duly
represented by a defence counsel of his choice. The
claim of the applicant that he was unwilling to continue D
with his earlier counsel is also nothing but a bundle of
lie in as much as the accused never submitted before
the court that he wants to change his counsel. Rather,
it is revealed from the record that the earlier counsel,
Sh. A/ok Kumar was acting as per his instructions and E
having legal interview with him. The accused cannot
be permitted to take advantage of his submissions
made on the first date i.e. 1310112015 that he wants to
engage a new counsel as his subsequent conduct does F
not support this submission. I may also add that before
proceeding with the case further, I had personally asked
the accused in the open court whether he wants to
continue with his counsels and only on getting a reply ·
in the affirmative, were the proceedings continued G
further. It thus appears that the endeavor of the accused
by filing this application is only to delay the proceedings
despite the fact that all along the trial his request for
adjournment have been duly considered and allowed
and he has been duly represented by a private counsel H
486 SUPREME COURT REPORTS [2015] 10 S.C.R.
A of his choice.
23. I am also unable to accept the plea of the accused
that the counsel representing him earlier was
incompetent, being a novice and that he is entitled to
s recall all the prosecution witnesses now that he has
engaged a new counsel. Although, Sh. Alok Kumr
Dubey a_nd Sh. Ankit Bhatia, both have enrolment
number of 2014 as per the Power ofAttorney executed
by the accused in their favour, however, to my mind the
C competence of a Lawyer is subjective and the date of
his enrolment with the Bar Council can certainly not be
said to be a yardstick to measure his competence.
24. Moreover, the competence of the new counsel may
o again be questioned by another counsel, who the
accused may choose to engage in future. This fact was
also admitted by Sh. D.K. Mishra during the course of
arguments on the application under consideration.
xxxxxx
E
27. At this stage, to judge as to whether certain .questions
should have been put to the witnesses in cross
examination or should not have been put to them, would
in my view result in pre-judging as to what are the
c material portions of the evidence and would also amount
to re-appraising the entire cross examination conducted
by the earlier counsel to conclude whether he had done
a competent job or not. This certainly is not within the
scope and power of the court u/s. 311 Cr.P.C. I am
G supported in my view by the observations of Hon'ble
Delhi High Court in its order dated 2010212008 in case
titled as Raminder Singh vs. State, Criminal MC 84791
2006, where it has been held as under:
H "In the first place, it requires to be noticed that scope of
AG v. SHIV KUMAR YADAV &ANR. 487
[ADARSH KUMAR GOEL, J.]
Section 311 CrPC does not permit a court to go into A
the aspect whether material portions of the evidence
on record should have been put to the witness in cross-
examination to elicit their contradictions. If the court is
required to perform such an exercise every time an
application is filed under Section 311 then not only B
would it be pre-judging what according to it are 'material
portions' of the evidence but it would end up
reappraising the entire cross-examination conducted
by a counsel to find out if the counsel had done a
competent job or not. This certainly is not within the C
scope of the power of the trial court under Section 311
CrPC. No judgment has been pointed out by the learned
Counsel for the petitioner in support of such a
contention. Even on a practical level it would well nigh D
be impossible to ensure expeditious completion of trials
if trial courts were expected to perform such an exercise
at the conclusion of the examination of prosecution
witnesses every time."
28. It may also be relevant to mention that Article 22(1) E
of the Constitution of India confers a Fundamental Right
upon an accused, who has been arrested by the police
to be defended by a legal practitioner of his choice. This
Fundamental Right has been duly acknowledged by F
the Hon'ble Superior Courts in numerous
pronouncements including the case of State of Madhya
Pradesh vs. Shobha Ram and others, AIR 1966 SC
1910 wherein it has been observed as under:
"Under Art. 22, a person who is arrested for whatever G
reason, gets three independent rights. The first is the
right to be told the reasons for the arrest as soon as an
arrest's made, the second is the right to be produced
before a Magistrate within 24 hours and the third is right H
488 SUPREME COURT REPORTS [2015] 10 S.C.R.
A to be defended by advocate of his choice. When the
Constitution lays down in absolute terms a right to be
defended by one' own.counsel, it cannot be taken away
by ordinary law, and, it is not sufficient to say that the
accused was so deprived, of the right, did not stand in
B danger of losing his personal liberty."
29. ln the case of State vs. Mohd. Afzal & Ors. 2003 IV
AD (Cr.) 205, the Hon'ble Delhi High Court addressed
the issue of Fundamental Right of the accused to be
c represented by a counsel from the point of his arrest
especially in a case involving capital punishment. The
case of US Supreme Court in Strickland vs. Washington
466, U.S. 688 (1984) was cited before the Delhi High
Court and the Id. Counsel for the accused in that case
D had argued that the law required a conviction to be set
aside where counsel's assistance was not provided or
was ineffective. Hon'ble Delhi High Court took note of
the observations in the said case as well as the Rulings
of the Hon'ble Supreme Court in the case of (1991) 1
E SCC 286 Kishore Chand vs. State of Himachal
Pradesh, (1931) 1SCC627 Khatri & Ors. vs. State of
Bihar & Ors., (1980) 1 SCC 108 Hussainara Khatoon
& Ors. vs. Home Secretary, State ofBihar, (1983) 3 SCC
307 Rajan Dwivedi vs. Union of India, (1978) 3 SCC
F
544 Madhav Hayawadanrao Hoskot vs. State of
Maharashtra while dealing with this issue. It was
however observed that from hinr]sight it is easy to pick
wholes in the cross examination conducted but applying
G the test in Strickland's case, it cannot be said that it was
the constructive denial of the counsels to accused
Mohd. Afzal. The observations of the Hon'ble Delhi
High Court were met with the approval by Hon'ble
Supreme Court when the matter was decided by the
H Hon 'ble Apex Court by its ruling titled as State vs. Navjot
AG v. SHIV KUMAR YADAV &ANR. 489
[ADARSH KUMAR GOEL, J.]
Sandhu & Ors. AIR 2005 SC 3820. A
30. The Hon'ble Apex Court, after considering the facts
of the case, nutshell that "we do not think that the court
should dislodge the Counsel and go on searching for
some other counsel to the liking of the accused. The B
right to legal aid cannot be taken thus far." While relying
upon the ruling in the case Strickland's (supra), the
Hon'ble Supreme Court observed that scrutiny of
performance of a counsel who has conducted trial
should be highly deferential. C
xxxxx
34. It may be noted that the recall of 10 and prosecutrix
has been sought on the ground besides others, that
she has to be questioned as to why she did not give her o
sim of her mobile to the 10 and why the 10 did not ask
her for the same. Similarly, it has been submitted that
the accused though admitted his potency report but has
not admitted the time and process of the potency test
as stated by the 10 and thus the 10 needs to be recalled. E
Further, SI Sandeep is required to be recalled for cross
examination in order to cross examine him with regard
to the document given by the Transporter, who brought
the cab in question from Mathura to Delhi. It may also
be mentioned that in his zest to seek recall of all the F
prosecution witnesses, the applicant has also sought
recall of one lady constable Manju, who as per record
was not even examined as a prosecution witness ..
35. It is further necessary to mention that on 0410212015 G
accused had moved an application uls 311 Cr.PC.,
thereby seeking recall of prosecutrix PW-2 and PW-23
Ayush Dabas. The application was dismissed. The
present application has been filed now seeking recall
of all PWs, including PW-2 and PW-23, while the order H
490 SUPREME COURT REPORTS [2015) 10 S.C.R.
A dated 0410212015 still remains unchallenged.
36. The application under consideration is thus nothing
but an attempt to protract the trial and in fact seek an
entire retrial. There is no change in circumstances
B except change of Counsel, which, to my mind, is no
ground to allow the application. Interestingly, in para
17 of the application, it has been· contended that the
present counsel is not aware of the scheme and design
of defence of the previous counsel and is thus at a loss
c and disadvantageous position to defend the accused
and for conducting the case as per his acumen and
legal expertise, the recalling of PWs are necessary. It
may be noted that the defence of an under trial is not
expected to vary from counsel to counsel and
D irrespective of change of counsel, an under trial is
expected to have a single and true line of defence which
cannot change every time he chf!nges a counsel. Nor
can a new counsel defend the case of such an under
trial as per the new scheme and design in accordance
E with his acumen and legal expertise."
23. The High Court made a reference to the Criminal Law
Amendment Act, 2013 providing for trial relating to offences
under Section 376 and other specified offences being
F completed within two months from the date of filing of the
charge sheet. Reference has also been made to circular issued
by the Delhi High Court drawing the attention of the judicial
officers to the mandate of speedy disposal of session cases.
The High Court also referred to the decisions of this Court in
G Lt. Col. S.J. Chaudharvvs. State (DelhiAdministration)43,
State of U.P. vs. Shambhu Nath Singh44, Akil@Javedvs.
State of NCT of Delhi45 and Vinod Kumar vs. State of
" (1984) 1 sec 722
H "(2001) 4 sec 667
" (2013) 7 sec 125
AG v. SHIV KUMAR YADAV &ANR. 491
[ADARSH KUMAR GOEL, J.]
Punjab46, requiring the trials to be conducted on day to day A
basis keeping in view the mandate of Section 309 Cr. P. C.
24. After rejecting the plea of the accused that there was
any infirmity in the conduct of the trial after detailed reference
to the proceedings, the High Court concluded: B
"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 c
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 o
the petitioner that justice hurried is justice buried,
deserves outright rejection."
25. It was then observed that competence of a counsel
was a subjective matter and plea of incompetence of the E
counsel could not be easily accepted. It was observed :
"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 F
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 G
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
46
(2015) 1 SCALE 542 H
492 SUPREME COURT REPORTS [2015] 10 S.C.R.
A of the concerned Advocate.
33. Learned Additional Standing counsel for the State
has furnished details of the number of questions put by
B 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."
c
26. lnspite of the High Court not having found any fault in
the conduct of the proceedings, it held that "although recalling
of all the prosecution witnesses is not necessary" recall of
certain witnesses was necessary for the reasons given in para
o 15 (a) to (xx) on the application of the accused. It was observed
that the accus~d was in custody and if he adopted delaying
tactics it is only he who would suffer.
27. It is difficultto approve the view taken by the High Court.
E Undoubtedly, fair trial is the objective and it is the duty of the
court to ensure such fairness. Width of power under Section
311 Cr.P.C. is beyond any doubt. Not a single specific reason
has been assigned by the High Court as to how in the present
case recall of as many as 13 witnesses was necessary as
F 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
G 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
H only matter of delay but also of harassment for the witnesses
AG v. SHIV KUMAR YADAV &ANR. 493
[ADARSH KUMAR GOEL, J.]
to be recalled which could not be justified on the ground that A
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 B
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 C
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
0
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 E
superintendence under Article 227 of the Constitution and under
Section 482 Cr.P.C. has to be exercised sparingly when there
is patent error or gross injustice in the view taken by a
subordinate court'7*. A finding to this effect has to be supported F
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 G
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.
.,. Jasbir Singh vs. State of Punjab (2006) 8 sec 294. prs. 10 to 14 H
494 SUPREME COURT REPORTS (2015] 10 S.C.R.
A 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
B 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
c appointed by the accused were incompetent
particularly at back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged in
the present case is in the interests of justice;
D (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
E 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
F allowing recall of witnesses, particularly at the fag end
of the trial;
(vii) Mere change of counsel cannot be ground to recall
the witnesses;
G (viii) There is no basis for holding that any prejudice will be
caused to tl}e accused unless the witnesses are
recalled;
(ix) The High Court has not rejected the reasons given by
H the trial court nor given any justification for permitting
AG v. SHIV KUMAR YADAV &ANR. 495
[ADARSH KUMAR GOEL, J.]
recall of the witnesses except for making general A
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 B
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. C
30. Accordingly, we allow these appeals, set aside the
impugned order passed by the High Court and dismiss the
application for recall.
Nidhi Jain Appeals allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 311 CrPC"Sign in to search