IMPORTANT POINT
Recall of witnesses – Change of Counsel cannot be a ground for recall of witnesses – Incompetency of a Lawyer cannot be presumed by Court.

JUDGMENT

G.S. Ahluwalia, J.—This criminal revision under Section 397, 401 of CrPC has been filed against the order dated 23.12.2021 passed by the Fourth Additional Sessions Judge, Bhind in Sessions Trial No.104/2018, by which the application filed by the applicant under Section 311 of CrPC has been rejected.

2. It is submitted by the counsel for the applicant that the applicant is facing trial for offence under Sections 302/34, 304-B of IPC and Sections 29 and 30 of Arms Act. Prosecution has already examined nine witnesses. However, counsel for the applicant could not effectively cross-examine Kamlesh (PW-2) and Ambika Prasad (PW-3), therefore, the application under Section 311 of CrPC was moved, however, the said application has been rejected by the impugned order.

3. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that it is well established principle of law that no party should suffer because of incompetence of his Lawyer. Kamlesh (PW-2) and Ambika Prasad (PW-3) are important witnesses and since their earlier counsel could not effectively cross-examine them, therefore, the Court below should have granted an opportunity to the applicant to further cross-examine them, otherwise, the applicant would suffer irreparable loss.

4. Heard the learned counsel for the applicant.

5. During the course of arguments, it was fairly conceded by the counsel for the applicant that the applicant has not approached the Bar Council against his counsel for showing his incompetence or professional misconduct.

6. The Supreme Court in the case of State of Haryana v. Ram Mehar and others reported in (2016) 8 SCC 762 has held as under:-

“36. Keeping in mind the principles stated in the aforesaid authorities the defensibility of the order passed by the High Court has to be tested. We have already reproduced the assertions made in the petition seeking recall of witnesses. We have, for obvious reasons, also reproduced certain passages from the trial court judgment. The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesses. That apart, it has been urged that certain suggestions could not be given. The marrow of the grounds relates to the illness of the counsel. It needs to be stated that the learned trial Judge who had the occasion to observe the conduct of the witnesses and the proceedings in the trial, has clearly held that recalling of the witnesses was not necessary for just decision of the case. The High Court, as we notice, has referred to certain authorities and distinguished the decision in Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] and Fatehsinh Mohansinh Chauhan [UT of Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 : (2006) 3 SCC (Cri) 300]. The High Court has opined that the court has to be magnanimous in permitting mistakes to be rectified, more so, when the prosecution was permitted to lead additional evidences by invoking the provisions under Section 311 CrPC. The High Court has also noticed that the accused persons are in prison and, therefore, it should be justified to allow the recall of witnesses.

37. The heart of the matter is whether the reasons ascribed by the High Court are germane for exercise of power under Section 311 CrPC. The criminal trial is required to proceed in accordance with Section 309 CrPC. This Court in Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712], while dealing with delay in examination and cross-examination was compelled to observe thus : (SCC pp. 226-27, para 1)

“1. If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality