P. SANJEEVA RAOversusTHE STATE OF A.P.

                   [2012] 6 S.C.R. 787


                    P. SANJEEVA RAO                            A
                             v.
                   THE STATE OF A.P.
         (Criminal Appeal Nos. 874-875 of 2012)
                       JULY 2, 2012
                                                               B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

      Code of Criminal Procedure, 1973 - ss. 311 and 242 -
Extent and scope of the power of the Court to recall witnesses
- Prosecution for offences punishable u/ss. 7 and 13(1) rlw C
13(d) of the Prevention of Corruption Act - Around the time
the prosecution concluded its evidence, accused-appellant
filed petition u/ss. 242 and 311 CrPC for recall of PW 1-
complainant and PW2 (an independent witness) for cross-
examination - Plea of appellant that cross-examination of D
PWs 1 and 2 had been deferred till such time the Trap Laying
Officer (PW 11) was examined by the prosecution and since
the said officer had been examined, PWs 1 and 2 need be
recalled for cross-examination by counsel for the appellant -
Application dismissed by trial court on grounds that there was E
nothing to show on the record that the appellant had reserved
his right to cross examine the witnesses at a later point of time
and that recall of PWs 1 and 2 for cross-examination more
than 3;;2 years after they had been examined in relation to an
incident that had taken place 7 years back, was bound to F
cause prejudice to the prosecution - Order upheld by High
Court - On appeal, held: The decision to cross-examine is
generally guided by the nature of the depositions and whether
it incriminates the accused - In a case like the one at hand
where PWs1 and 2 had clearly indicted the appellant and G
supported the prosecution version not only regarding demand
of the bribe but also its receipt by the appellant there was no
question of the defence not cross-examining them - One is
inclined to believe that the two PWs were not cross-examined
                            787                                H
    788      SUPREME COURT REPORTS             [2012] 6 S.C.R.


A by the counsel for the appellant because he had indeed
  intended to cross-examine them after the Trap Laying Officer
  had been examined - The fact that the appellant did not make
  a formal application to this effect nor even an oral prayer to
  the Court to that effect at the time the cross-examination was
B deferred may be a mistake - But merely because a mistake
  was committed, should not result in the appellant suffering a
  penalty totally disproportionate to the gravity of the error
  committed by his lawyer - A possible prejudice to prosecution
  is not even a price, leave alone one that would justify denial
c of a fair opportunity to the appellant to defend himself -
  Direction given that PWs1 and 2 be recalled by the Trial Court
  and an opportunity to cross-examine the said witnesses
  afforded to the appellant.

       The appellant was being prosecuted for offences
D punishable under Sections 7 & 13 (1) read with Section
  13(1)(d) of Prevention of Corruption Act, 1988, before the
  Special Judge for CBI cases. Around the time the
  prosecution concluded its evidence, the appellant filed
  Crl. Misc. Petition under Sections 242 and 311 Cr.P.C. for
E recall of PW 1-complainant and PW2 (an independent
  witness) for cross-examination. The appellant's case was
  that cross-examination of PWs 1 and 2 had been deferred
  till such time the Trap Laying Officer (PW 11) was
  examined by the prosecution and since the said officer
F had been examined, PWs 1 and 2 need be recalled for
  cross-examination by counsel for the accused-appellant.
  The application was dismissed by the Trial Court on the
  ground that there was nothing to show on the record that
  the appellant had reserved his right fo cross examine the
G witnesses at a late~ point of time. The Trial Court also held
  that recall of PWs 1 and 2 for cross-examination more
  than 3% years after they had been examined in relation
  to an incident that had taken place 7 years back, was
  bound to cause prejudice to the prosecution and that the
H appellant could not ask for the recall of any witness
        P. SANJEEVA RAO v. STATE OF A.P.              789

without cogent reasons. Aggrieved, the appellant filed       A
revision petition before the High Court which held that
since this was an old case of the year 2005 and the matter
was now coming up for examination of the appellant-
accused under Section 313 Cr.P.C., there was no
justification for recall of the PWs1 and 2 and accordingly   B
dismissed the revision petition.

     In the instant appeals, the appellant raised various
contentions: 1) that the Trial Court as also the High Court
had taken a hyper technical view of the matter without
appreciating that grave prejudice will be caused to the C
appellant if the prayer for cross-examination of PWs. 1
and 2 was not granted and the recall of the witnesses for
that purpose declined; 2) that counsel for the appellant
before the Trial Court was under a bona fide belief that
the cross-examination of PWs. 1 and 2 could be D
conducted after PW-11 had been examined; 3) that the
lawyer appearing before the Trial Court had also filed a
personal affidavit stating that PWs. 1 and 2 had not been
cross-examined by him under a bona fide impression
that he could do so after the evidence of PW-11 had been E
recorded; 4) that while the lawyer may have committed a
mistake in presuming that PWs 1 and 2 could be recalled
for cross-examination at a later stage without the Trial
Court granting to the accused the liberty to do so, such
a mistake should not vitiate the trial by denying to the· F'
appellant a fair opportunity to cross-examine the said
witnesses; 5) that no party to a trial can be denied the
opportunity to correct errors if any committed by it and
6) that if proper evidence was not .adduced or the
relevant material was not brought on record due to any G
inadvertence, the Court should be magnanimous in
permitting such a mistake to be rectified.

    Allowing the appeals, the Court

                                                             H
    790      SUPREME COURT REPORTS             [2012] 6 S.C.R.

A        HELD: 1.1. There is no dispute that no formal
    application was filed by the appellant nor even an oral
    prayer made before the Trial Court to the effect that the
    exercise of the right to cross-examine the two witnesses-
    PWs 1 and 2 was being reserved till such time the Trap
8   Laying Officer (PW11) was examined. This is precisely
    where counsel for the appellant has stepped in and filed
    a personal affidavit in which he has stated that even
    though there is no formal prayer made to that effect he
    intended to cross-examine the two witnesses only after
C   the deposition of the Trap Laying Officer was recorded.
    In the peculiar circumstances of the case, the version
    given by the counsel may indeed be the true reason why
    the two witnesses were not cross-examined on the
    conclusion of their examination-in-chief, primarily
    because no lawyer worth his salt especially one who had
D   sufficient experience at the Bar like the 'one appearing for
    the appellant would have let the opportunity to cross-
    examine go unavailed in a case where the witnesses had
    supported the prosecution version not only in regard to
    the demand of bribe but also its payment and the success
E   of the trap laid for that purpose. There is no gainsaying
    that every prosecution witness need not be cross-
    examined by the defence. It all depends upon the nature
    of the deposition and whether the defence disputes the
    fact sought to be established thereby. Formal witnesses
F   are not at times cross-examined if the defence does not
    dispute what is sought to be established by reference to
    his/her deposition. The decision to cross-examine is
    generally guided by the nature of the depositions and
    whether it incriminates the accused. In a case like the one
G   at hand where the complainant examined as PW1 and the
    shadow witness examined as PW2 had clearly indicted
    the appellant and supported the prosecution version not
    only regarding demand of the bribe but also its receipt
    by the appellant there was no question of the defence not
H
       P. SANJEEVA RAO v. STATE OF A.P.                 791


cross-examining them. The two witnesses doubtless              A
provided the very basis of the case against the appellant
and should their testimony have remained unchallenged,
there was nothing much for the appellant to argue at the
hearing. The depositions would then be taken to have
been accepted as true hence relied upon. [Para 10] [797-       B
E-H; 798-A-F]
     1.2. This Court is inclined to believe that the two
prosecution witnesses were not cross-examined by the
counsel for the appellant not because there was nothing
incriminating in their testimony against the appellant but C
because counsel for the appellant had indeed intended
to cross-examine them after the Trap Laying Officer had
been examined. The fact that the appellant did not make
a formal application to this effect nor even an oral prayer
to the Court to that effect at the time the cross- D
examination was deferred may be a mistake which could
be avoidP.d and which may have saved the appellant a
lot of trouble in getting the witnesses recalled. But merely
because a mistak~ was committed, should not result in
the accused suffering a penalty totally disproportionate E
to the gravity of the error committed by his lawyer. Denial
of an opportunity to recall the witnesses for cross-
examination would amount to condemning the appellant
without giving him the opportunity to challenge the
correctness of the version and the credibility of the F
witnesses. It is trite that the credibility of witnesses
whether in a civil or criminal case can be tested only
when the testimony is put through the fire of cross-
examination ..Denial of an opportunity to do so will result
in a serious miscarriage of justice in the present case G
keeping in view the serious consequences that will
follow any such denial. [Para 11] [798-H] [799-A-D]
    1.3. Power is vested in the Courts under Section 311.
Cr.P.C. to recall witnesses. The object underlying Section
311 is to prevent failure of justice on account of a mistake   H
    792       SUPREME COURT REPORTS            (2012] 6 S.C.R.


A of either party to bring on record valuable evidence or
  leaving an ambiguity in the statements of the witnesses.
  Grant of fairest opportunity to the accused to prove his
  innocence is the object of every fair trial. Discovery of the
  truth is the essential purpose of any trial or enquiry.
B [Paras 12, 13 and 15) [799-E-F; 800-G-H; 801-F]

        1.4. This Court is 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
C 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 the Additional Solicitor
   General that the prosecution may suffer prejudice on
D account of a belated recall, may not be wholly without
   any basis. Having said that, this Court is of the opinion
 · that on a parity of reasoning and looking to the
   consequences of denial of opportunity to cross-examine
   the witnesses, one would prefer to err in favour of the
E 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
F price, leave alone one that would justify denial of a fair
   opportunity to the accused to defend himself. [Para 16)
   [802-B-D]

       1.5. It is directed that PWs1 and 2 be recalled by the
G Trial Court and an opportunity to cross-examine the said
  witnesses afforded to the appellant. The Trial Court shall
  endeavour to conclude the examination of the two
  witnesses expeditiously and without unnecessary delay.
  [Para 17) [802-F-G]

H         Rajendra Prasad v. Narcotic Cell 1999 SCC (Crl) 1062;
        P. SANJEEVA RAO v. STATE OF A.P.                793


SarwanSingh v. State of Punjab (2003) 1 SCC 240: 2002 (3)      A
Suppl. SCR 128; Hanuman Ram v. The State of Rajasthan
& Ors. (2008) 15 SCC 652: 2008 (14) SCR 348; Hoffman
Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC
430; Mohan/al Shamji Soni v. Union of India & Anr. 1991
Supp (1) 271: 1991 (1) SCR 712 and Maria      Margarida        B
Sequeria Fernandes v. Erasmo Jack de Sequeria through
LRs. 2012 (3) SCALE 550 - relied on.

                    Case Law Reference:
  1999 sec (Crl) 1062          relied on          Para 7       c
  2002 (3) Suppl. SCR 128 relied on               Para 10
  2008 (14) SCR 348            relied on          Para 12
  (2000) 1o sec 430            relied on          Para 13
                                                               D
  1991 (1)"SCR 712             relied on          Para 14
  2012 (3) SCALE 550           relied on          Para 15
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 874-875 of 2012.                                          E
    From the Judgment & Order dated 29.03.2011 of the High
Court of Judicature Andhra Pradesh at Hyderabad in Criminal
Revision Case Nos. 534 & 710 of 2011.
    ATM Ranga Ramanujan, Gouri Karuna Das Mohanti,             F
Deepak Agnihotri, Prakhar Sharma, Sanjeev Kumar Sharma,
Anu Gupta for the Appellant.
     Harin P. Rawal, ASG, D. Mahesh Babu, Mayur R. Shah,
Amit K Nain, Suchitra Hrangkhwat, Anando Mukherjee, PK Dey,
Rajiv Nanda, Arvind Kumar Sharma for the Respondent.           G
    The Judgment of the Court was delivered by
    T.S. THAKUR, J. 1. Leave granted.
    2. These appeals arise out of an order dated 29th March,
2011, passed by the High Court of Judicature for Andhra        H
    794       SUPREME COURT REPORTS               [2012] 6 S.C.R.

A   Pradesh whereby Criminal Revision Petitions No.534 and 710
    of 2011 filed by the appellant have been dismissed and order
    dated 22nd January, 2011 passed by the Special Judge for CBI
    cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld.
         3. The appellant is being prosecuted for offences
B   punishable under Sections 7 & 13 (1) read with Section
    13(1 )(D) of Prevention of Corruption Act, 1988, before the
    Special Judge for CBI cases at Hyderabad. Around the time
    the prosecution concluded its evidence, the appellant filed Crl.
    Misc. Petitions No.18 and 19 of 2011 under Sections 242 and
C   311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for
    cross-examination. The appellant's case in the said Criminal
    Misc. Petition No.18 of 2011 was that cross-examination of
    PWs 1 and 2 had been deferred till such time the Trap Laying
    Officer (PW 11) was examined by the prosecution and since
D   the said officer had been examined, PWs 1 and 2 need be
    recalled for cross-examination by counsel for the accused-
    appellant. In Crl. Misc. Petition No.19 of 2011 the petitioner
    made a prayer for deferring the cross-examination of
    Investigating Officer (PW12) in the case till such time PWs 1
E   and 2 were cross-examined.
         4. Both the applications mentioned above were opposed
    by the prosecution resulting in the dismissal of the said
    applications by the Trial Court in terms of its order dated 22nd
    January, 2011. The Trial Court observed:
F
          "For what ever be the reasons the cross-examination of
          PWs 1 and 2 has been recorded as "nil". There is nothing
          to show on the record that the petitioner had reserved his
          right to cross examine the witnesses at a later point of
          time. The dockets of the Court do not reflect any such
G         intention of the petitioner."
      5. The Trial Court also held that recall of PWs 1 and 2 for
  cross-examination more than 3 and % years after they had
  been examined in relation to an incident that had taken place
H 7 years back, was bound to cause prejudice to the prosecution.
         P. SANJEEVA RAO v. STATE OF A.P.                     795
                  [T.S. THAKUR, J.]
The Trial Court was of the view that the appellant had adopted       A
a casual and easy approach towards the trial procedure and
that he could not ask for the recall of any witness without cogent
reasons.
      6. Aggrieved by the order passed by the Trial Court the
appellant filed two revision petitions before the High Court         8
which, as noticed earlier, have been dismissed by the High
Court in terms of the order impugned in these appeals. The
High Court took the view that PWs 1 and 2 had been examined
on 13th June, 2008 and 31st July, 2008 respectively followed
by examination of nearly one dozen prosecution witnesses. The        C
High Court held that since this was an old case of the year 2005
and the matter was now coming up. for examination of the
appellant-accused under Section 313 Cr.P.C., there was no
justification for recall of the prosecution witnesses No.1 and 2.
The revision petitions were accordingly dismissed.                   D
     7. Appearing for the appellant Mr. A.T.M Ranga
Ramanujan, learned senior counsel, contended that the Trial
Court as also the High Court had taken a hyper technical view
of the matter without appreciating that grave prejudice will be
caused to the appellant if the prayer for cross-examination of       E
PWs. 1 and 2 was not granted and the recall of the witnesses
for that purpose declined. He submitted that counsel for the
appellant before the Trial Court was under ~ bona fide belief
that the cross-examination of the prosecution witnesses PWs.
1 and 2, who happened to be the star witnesses, one of them          F
being the complainant and the other a witness who allegedly
heard the conversation and observed the passing of the bribe
to the accused could be conducted after PW-11 had been
examined. It was contended that the lawyer appearing before              /

the Trial Court had also filed a personal affidavit stating that     G
PWs. 1 and 2 had not been cross-examined by him under a
bona fide impression that he could do so after the evidence of
the Trap Laying Officer (PW-11) had been recorded. Mr.
Ramanujan urged that while the lawyer may have committed a
mistake in presuming that the prosecution witnesses No. 1 and        H
    796       SUPREME COURT REPORTS                [2012] 6 S.C.R.


A 2 could be recalled for cross-examination at a later stage
  without the Trial Court granting to the accused the liberty to do
  so, such a mistake should not vitiate the trial by denying to the
  appellant a fair opportunity to cross-examine the said
  witnesses. Heavy reliance was placed by learned counsel on
B the decision of this Court in Rajendra Prasad Vs. Narcotic Cell
  [1999 sec (Cri) 1062], in st.jpport of his submission that no
  party to a trial can be denied lhe opportunity to correct errors
  if any committed by it. If proper evidence was not adduced or
  ttie relevant material was not (>rought on record due to any
c inadvertence, the Court should be magnanimous in permitting
  such a mistake to be rectified.
          8. Appearing for the respondent Mr. H.P. Rawal, learned
    Additional Solicitor General, contended that while cross-
    examination of PWs. 1 and 2 could be deferred at the option
D of the accused to a later stage, the Court record does not show
    any such request having been made or any liberty being
    reserved to the accused. It was, according to Mr. Rawal, a case
    where an opportunity to cross-examine had been given to the
    accused and his counsel but they had chosen not to avail of
E · the same, in which case a belated request for recall of the
    witnesses to exercise the right to cross-examine could and has
    been rightly rejected by the Trial Court and that rejection
    affirmed by the High Court. It was also submitted that the recall
    of the prosecution witnesses, who have gone without cross-
F examination at an earlier stage, is likely to prejudice the
    prosecution inasmuch as the incident in question is as old as
    of the year 2005, while the request for recall was made only in
    the year 2011, nearly four years after the framing of the charges
    against the appellant.
G      9. The appellant who was working as Sub Divisional
  Officer in the B.S.N.L., Karimnagar, is accused of having
  demanded and received a bribe of Rs.3,000/- from the
  complainant who was examined as PW1 at the trial. The trap
  led by the CBI in which PW2 was associated as an
H independent witness is said to have succeeded in catching the
         P. SANJEEVA RAO v. STATE OF A.P.                    797
                  [T.S. THAKUR, J.]

petitioner red-handed with the bribe money eventually leading A
to the filing of a charge-sheet against him before the Court of
Special Judge for CBI cases at Hyderabad'in March, 2005.
Charges were framed against the petitioner on 7th December,
2006. While PW1, the complainant in the case, was examined
on two different dates i.e. 3rd March, 2008 and 13th June, ,B
2008, prosecution witness No.2 was similarly examined on 18th ·""
July, 2008 and 31st July, 2008. It is common ground that both
the witnesses have stood by the prosecution case for they have
not been declared hostile by the prosecution. This implies that
the depositions of the two witnesses are incriminating against       c
the appellant and in the absence of any cross-examination their
version may be taken to have remained unchallenged. It is also
common ground that PWs. 3 to 11 were examined during the
period 31st July, 2008 and 28th December, 2011. The Trap
Laying Officer (PW 11) was examined on 18th February, 2010 D
and on 1st April, 2010. The two applications referred to earlier
were filed before the Trial Court at that stage, one asking for
recall of PWs. 1 & 2 for cross-examination and the other asking
for a deferring that the cross-examination of PW 12 till PWs. 1.
and 2 are recalled and cross-examined.                    ·
                                                                     E
      10. The only question that arises in the above backdrop
is whether the decision not to cross-examine PWs 1 and 2 was
for the reasons stated by the petitioner or for any other reason.
There is no dispute that no formal application was filed by the
petitioner nor even an oral prayer made before the Trial Court       F
to the effectthat the exercise ofthe right to cross-examine the
two witnesses was being reserved till such time the Trap Laying
Officer was examined. This is precisely where counsel for the
appellant has stepped in and filed a personal affidavit in which
he has stated that even•though there .is no formal prayer made       G
to that effect he intended to cross"examine the ti.No witnesses
only after the deposition of the Trap Laying Officer was
recorded. 'in the peculiar circumstances of the case, we feel that
the version given by the counsel may indeed be the true reason
why two witnesses were not cross~examined on the conclusion
                                                                     H
    798       SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A of their examination-in-chief. We say so primarily because no
  lawyer worth his. salt especially one who had sufficient
  experience at the Bar like the one appearing for the appellant
  would have let the opportunity to cross-examine go unavailed
  in a case where the witnesses had supported the prosecution
B version not only in regard to the demand of bribe but also its
  payment and the success of the trap laid for that purpose. There
  is no gainsaying that every prosecution witness need not be
  cross-examined by the defence. It all depends upon the nature
  of the deposition and whether the defence disputes the fact
C sought to be established thereby. Formal witnesses are not at
  times cross-examined if the defence does not dispute what is
  sought to be established by reference to his/her deposition. The
  decision to cross-examine is generally guided by the nature of
  the depositions and whether it incriminates the accused. In a
  case like the one at hand where the complainant examined as
0
  PW1 and the shadow witness examined as PW2 had clearly
  indicted the appellant and supported the prosecution version
  not only regarding demand of the bribe but also its receipt by
  the appellant there was no question of the defence not cross-
  examining them. The two witnesses doubtless provided the very
E basis of the case against the appellant and should their
  testimony have remained unchallenged, there was nothing much
  for the appellant to argue at the hearing. The depositions would
  then be taken to have been accepted as true hence relied upon.
  We may, in this connection, refer to the following passage from
F the decision of this Court in Sarwan Singh v. State of Punjab
  (2003) 1 sec 240:
          "It is a rule of essential justice that whenever the opponent
          has declined to avail himself of the opportunity to put his
          case in cross-examination it must follow that the evidence
G
          tendered on that issue ought to be accepted.
          11. We are, therefore, inclined to believe that the two
    prosecution witnesses were not cross-examined by the counsel
    for the appellant not because there was nothing incriminating
H
        P. SANJEEVA RAO v. STATE OF A.P.                    799
                 [T.S. THAKUR, J.]
in their testimony against the appellant but be9ause counsel for A
the appellant had indeed intended to cross-examine them after
the Trap Laying Officer had been examined. The fact that the
appellant did not make a formal application to this effect nor
even an oral prayer to the Court to that effect at the time the
cross-examination was deferred may be·a mistake which could B
be avoided and which may have saved the appellant a lot of ·
trouble in getting the witnesses recalled. But merely because
a mistake was committed, should not result in the accused
suffering a penalty totally disproportionate to the gravity of the
error committed by his lawyer. Denial of an opportunity to recall c
the witnesses for cross-examination would amount to
condemning the appellant without giving him the opportunity to
challenge the correctness of the version and the credibility of
the witnesses. It is trite that the credibility of witnesses whether
in a civil or criminal case can be tested only when the testimony D
is put through the fire of cross-examination. Denial of an
opportunity to do so will result in a serious miscarriage of
justice in the present case keeping in view the serious
consequences that will follow any such denial.
     12. T~e nature and extent of the power vested in the Courts    E
under Section 311 Cr.P .C. to recall witnesses was examined
by this Court in Hanuman Ram v. The State of Rajasthan &
Ors. (2008) 15 SCC 652. This Court held that the object
underlying Section 311 was to prevent failure of justice on
account of a mistake of either party to bring on record valuable    F
evidence or leaving an ambiguity in the statements of the
witnesses. This Court observed:
    "This is a supplementary provision enabling, and in certain
    circumstances imposing on the Court, the duty of
    examining a material witness who would not be otherwise         G
    brought before it. It is couched in the widest possible terms
    and calls for no limitation, either with regard to the stage
    at which the powers of the Court should be exercised, or
    with regard to the manner in which it should be exercised.
    It is not only the prerogative but also the plain duty of a     H
     800        SUPREME COURT REPORTS                 [2012] 6 S.C.R.


 A         Court to examine such of those witnesses as it considers
           absolutely necessary for doing justice between the State
           and the subject. There is a duty cast upon the Court to ·
           arrive at the truth by all lawful means and one of such
           means is the examination of witnesses of its own accord
 B         when for certain obvious reasons either party is not
           prepared to call witnesses who are known to be in a
           position to speak important relevant facts.
            The object underlying Section 311 of the Code is that
           there may not be failure of justice on account of mistake
 c         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
 D         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
           of the prosecution and not that of the accused. The section
            is a general section which applies to all proceedings,
 E         enquires and trials under the Code and empowers the
           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
 F
           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."
.G                                                (emphasis supplied)
          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:
 H
           "In such circumstances. if the new Counsel thought to have
        P. SANJEEVA RAO v. STATE OF A.P.                       801
                 [T.S. THAKUR, J.]
    the material witnesses further examined, the Court could          A
    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              B
    possible."
                                            (emphasis supplied)
     14. The extent and the scope of the power of the Court to
recall witnesses was examined by this Court in Mohan/al               C
Shamji Soni v. Union of India & Anr. 1991 Supp (1) 271, where
this Court observed:
    "The princ!ple of law that emerges from the views
    expressed by this Court in the above decisions is that the
    criminal court has ample power to summon any person               D
     as a witness or recall and re-examine any such person
    even if the evidence on both 'sides is closed and the
    jurisdiction of the court must obviously be dictated by
     exigency of the situation, and fair-play and good sense
    appear to be the only safe guides and that only the               E
    requirements of justice command and examination of
    any person which would depend on the facts and
    circumstances of each case."
                                            (emphasis supplied)
      15. Discovery of the truth is the essential purpose of any      F
trial or enquiry, observed a three-Judge Bench of this Court in
Maria Margarida Sequeria Fernandes v. Erasmo Jack de
Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder
of that solemn duty was given, in the following words:
                                                                      G
    "What people expect is that the Court should discharge its
    obligation to find out where in fact the truth lies. Right from
    inception of the judicial system it has been accepted that
    discovery, vindication and establishment of truth are the
                                                                      H
    802       SUPREME COURT REPORTS               [2012] 6 S.C.R.

A         main purposes underlying the existence of the courts of
          justice."
        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
B 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
  proseculion may suffer prejudice on account of a belated recall,
C 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
D 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.
E      17. In the result, we allow these appeals, set aside the
  orders passed by the Trial Court as also the High Court and
  direct that the prosecution witnesses No.1 and 2 shall be
  recalled by the Trial Court and an opportunity to cross-examine
  the said witnesses afforded to the appellant. In fairness to the
F counsel for the appellant, we must record that he assured us
  that given an opportunity to examine the witnesses the needful
  shall be done on two dates of hearing, one each for each
  witness without causing any un-necessary delay or
  procrastination. The Trial Court shall endeavour to conclude the
G examination of the two witnesses expeditiously and without
  unnecessary delay. The parties shall appear before the Trial
  Court on 6th August, 2012.
    B.B.B.                                        Appeals allowed.