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SUPREME COURT OF INDIA
PAMIDIGHANTAM SRI NARASIMHA, SANDEEP MEHTA, JJ.
Neha Begum and Others – Petitioners
Versus
The State of Assam and Another – Respondents
Petition for Special Leave to Appeal (Crl.) No. 3910 of 2024
Decided On : 02-09-2024
Indian Penal Code, 1860 – Section 103 read with Section 3(5) [Bharatiya Nyaya Sanhita, 2023 – Section 61 read with Section 318] – Criminal Procedure Code, 1973 – Section 231(2) read with Section 311 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 254 read with Section 348] – Recall of witness for further cross-examination – Court has discretionary power to summon any person as a witness or to recall or re-examine the person already examined – Such course of action is only permissible if Court is satisfied that prayer to recall and re-examine the witness is not made to fill in lacuna and that non-summoning of witnesses would cause serious prejudice to accused – Other than vague aspersion that erstwhile Lawyer engaged by petitioners did not conduct proper cross-examination of witnesses, no such specific ground was alluded on behalf of accused petitioners which could be considered to be a valid ground for Trial Court to invoke power under Section 311 Cr.P.C. – Prayer made by petitioners in application to recall and re-examine witnesses was nothing but attempt to fill in lacuna – There is nothing on record to suggest that non-summoning of witnesses for further cross examination could cause grave prejudice to accused and that such a cause of action was essential for a just decision of case – Impugned order dismissing application upheld. (Paras 7, 8, 9 and 10)
Facts of the case:
Petitioners are facing trial for offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 before Sessions Judge, Dibrugarh. Trial of case had proceeded significantly, whereafter the petitioners filed an application under Section 231(2) read with Section 311 Cr.P.C. with a prayer to further cross examine some prosecution witnesses . Said application came to be rejected vide order dated 9th March, 2021.
Findings of Court:
Impugned order does not suffer from any infirmity. Hence, special leave petition being meritless is dismissed as such.
Result : Special Leave Petition dismissed.
Based on the provided legal document, the key points are as follows:
The court has discretionary power under Section 311 of the Criminal Procedure Code (Cr.P.C.) to summon, recall, or re-examine witnesses, but such actions are only permissible if they are necessary for a just decision and not merely to fill lacunae or for unsubstantiated reasons (!) (!) .
The exercise of this power must be judicious, ensuring that the evidence sought is essential for the case's fair determination and that non-summoning or non-re-examination would cause serious prejudice to the accused (!) (!) .
The court must be satisfied that additional evidence is necessary to prevent failure of justice, and such discretion should be exercised with fairness, caution, and in consideration of the principles of fair trial (!) (!) .
The application to recall witnesses filed by the petitioners was found to be vague and unsubstantiated, with no specific grounds demonstrating that non-summoning would cause grave prejudice or that the exercise of such power was essential for justice (!) (!) .
The court emphasized that the purpose of exercising the power under Section 311 Cr.P.C. is to uncover the truth and facilitate a just decision, not to rectify mistakes or fill gaps created by previous cross-examinations (!) (!) .
The courts acknowledged that the petitioners' claim that their previous lawyer did not conduct proper cross-examination was insufficient as a valid reason to recall witnesses, especially in the absence of concrete evidence demonstrating prejudice or injustice (!) (!) .
Ultimately, the courts upheld the order dismissing the application to recall witnesses, confirming that there was no infirmity in the decision and that the exercise of discretion was appropriate and within legal bounds (!) .
The overall principle is that the power under Section 311 Cr.P.C. should be exercised only when necessary for a fair trial and not for strategic or procedural advantages, ensuring that the rights of both parties are balanced (!) (!) .
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ORDER :
1. This special leave petition preferred on behalf of the accused petitioners takes exception to the judgment and order dated 19th January, 2024 passed by the learned Single Judge of the Gauhati High Court in Criminal Petition No. 561 of 2021 whereby, the petition preferred by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’) was dismissed thereby, affirming the order dated 9th March, 2021 passed by the learned Sessions Judge, Dibrugarh in Petition No. 1869 of 2019 filed in Sessions Case No. 202 of 2018.
2. The petitioners are facing trial for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter being referred to as ‘IPC’) before the Sessions Judge, Dibrugarh. The trial of the case had proceeded significantly, whereafter the petitioners filed an application under Section 231(2) read with Section 311 CrPC being Petition No. 1869 of 2019 with a prayer to further cross examine the prosecution witnesses No. 1, 2, 3, 6, 7 and 8. The said application came to be rejected vide order dated 9th March, 2021.
3. Learned counsel for the petitioners vehemently and fervently contended that the trial Court as well as the High Court proceeded on a total wrong premise that the petitioners were simply praying for further cross-examination of the witnesses which prayer could not be accepted as further cross-examination obviously follows reexamination and the prosecution had never re-examined the witnesses, thus, the defence could not be allowed to re-cross examine the prosecution witnesses.
4. Having gone through the impugned order passed by the High Court, we find that the said submission is fallacious on the face of the record. It is true that the trial Court has made a passing observation in the order dated 9th March 2021 that unless the witnesss have been re-examined by the prosecution, no opportunity of re-cross-examination can be given to the defence. However, on going through the order passed by the High Court, we find that the High Court has duly considered the factual aspects in context to the statutory provisions and held that the prayer made on behalf of the petitioners by way of the application under Section 311 CrPC was to recall the abovementioned witnesses and to permit the defence to conduct further cross-examination from them. Upon apropos examination of the entire material available on record, the High Court held that the grounds set out in the application praying for an opportunity of further cross-examination of the witnesses were vague and unsubstantiated.
5. The thrust of the submissions made on behalf of the accused petitioners in support of the prayer to recall and allow further cross-examination of the prosecution witnesses was that their erstwhile engaged lawyer had not properly cross examined the witnesses.
6. We may note that Section 311 CrPC operates in two parts, the first part clothes the Court with a power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandates that the Court shall summon and examine or recall and re-examine such person, if his evidence appears to be essential to the just decision of the case.
7. Thus, first part of section gives a discretionary power to the Court to summon any person as a witness or to recall or re-examine the person already examined. Such a course of action is only permissible if the Court is satisfied that the prayer to recall and reexamine the witness is not made to fill in the lacuna and that the non-summoning of the witnesses would cause a serious prejudice to the accused. In this regard, we are benefited by the judgment of Rajaram Prasad Yadav vs. State of Bihar and Another, (2013) 4 SCC 461 wherein this Court culled out the principles to be borne in mind while exercising the power under Section 311 CrPC. The relevant extract is reproduced herein-below:
“17. From a conspectus consideration
Recall of witness for further cross-examination – Such course of action is only permissible to fill in lacuna in the case.
The main legal point established in the judgment is the discretionary and mandatory aspects of S.311 of Cr.P.C., emphasizing the need for judicious exercise of power and the requirement for the evide....
The discretion of the court to summon witnesses under Section 311 of Cr.P.C. to ensure a fair trial and just decision.
Section 311 of Cr.PC. empowers Court to call any person as witness at any stage of inquiry, trial or other proceeding in order to reach to just decision of case.
Recall of witness – Paramount requirement is just decision and for that purpose essentiality of a person to be recalled and re-examined has to be ascertained.
The discretion granted under Section 311 Cr.P.C. to recall witnesses must be exercised judiciously and not arbitrarily, with the primary objective of ensuring a just decision and preventing failure o....
The right to cross-examine witnesses is a statutory and fundamental right, crucial for ensuring a fair trial, necessitating courts to allow such opportunities to the accused.
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