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2012 (4) Supreme 203
SUPREME COURT OF INDIA
T.S. Thakur and Gyan Sudha Misra, JJ.
P. Sanjeeva Rao — Appellant
versus
The State of A.P. — Respondent
Criminal Appeal Nos. 874-875 of 2012
(Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011)
Decided on : 2-7-2012
Facts of the Case :
Appellant herein in the instant case was prosecuted for offences punishable under Sections 7 & 13 (1) read with Section 13(1)(D) of P C Act, 1988.Applications were filed by appellant for recall of prosecution witnesses No.1 and 2 for cross-examination. Said applications were Dismissed by Trial Court. Revision Petitions thereagainst were also Dismissed by High Court.
B. Present appeals have been filed against said order of High Court.
Findings of the Court :
Evidence on record showed that recall of witnesses was being directed nearly four years after they were examined in chief about an incident that was nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. However held that it was more desirable that appellant was given an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. Impugned orders passed by Trial Court as also by High Court were set aside .Direction was given that prosecution witnesses No.1 and 2 to be recalled by Trial Court and an opportunity to cross-examine said witnesses afforded to the appellant.Appeals were allowed.
Certainly. Based on the provided legal document, here are the key points:
The primary objective of Section 311 of the Criminal Procedure Code is to prevent the failure of justice caused by mistakes of either party in bringing valuable evidence or leaving ambiguities in witness statements (!) .
The power under Section 311 is broad and allows the court to summon or recall witnesses at any stage of inquiry, trial, or other proceedings, with the purpose of arriving at the truth and ensuring fair trial principles are upheld (!) .
The fairness of the trial is a fundamental virtue in the judicial system, and it is more desirable to give an accused an opportunity for cross-examination rather than protect the prosecution from potential prejudice, even if there is a delay involved (!) (!) .
Delay in recalling witnesses, especially in cases involving old incidents, can impact human memory and may breed cynicism about the judicial system's efficiency. Nonetheless, the court prefers to err on the side of fairness by providing the accused a chance to cross-examine witnesses (!) .
The court has the authority and duty to examine witnesses on its own initiative if necessary for justice, regardless of whether the parties have called or declined to cross-examine them (!) (!) .
An inadvertent mistake or procedural oversight by legal counsel, such as not formally reserving the right to cross-examine witnesses at a later stage, should not result in denying the accused a fair opportunity to challenge the evidence, especially if it is likely the witnesses' testimony is incriminating (!) (!) (!) .
The overarching principle is that the discovery of truth and the administration of justice take precedence, and courts should exercise their powers judiciously to ensure fair play, even if it involves recalling witnesses after a significant delay (!) (!) (!) .
In the specific case discussed, the court emphasized that the witnesses' testimony was crucial, and the delay in cross-examination was detrimental to the fairness of the trial. The court preferred to allow the appellant an opportunity to cross-examine the witnesses rather than uphold procedural technicalities that could lead to an injustice (!) (!) .
The court directed that witnesses should be recalled and cross-examined, and that this process should be conducted expeditiously, emphasizing the importance of fairness and the court’s duty to discover the truth (!) .
Overall, the judicial approach favors fairness and justice over procedural rigidity, ensuring that the accused has a fair opportunity to defend himself, even if it involves exercising the court's powers to recall witnesses at a later stage in the proceedings (!) (!) (!) .
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JUDGMENT
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 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 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 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 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 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:
“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 intention of the petitioner.”
5. The Trial Court also held that recall of PWs 1 and 2 for cross- examination more than 3 and ½ 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. The Trial Court was of the view that the appellant had adopted 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 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 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.
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 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 a 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 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 PWs. 1 and 2 had not been cross-examined b
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