Point of Law: Re-examination - Scope of section 311 Cr.P.C. - Section 311, Cr.P.C. that request for re-examination has been made solely on ground that Senior Counsel has been engaged in place of a Junior Counsel as Junior Counsel, according to petitioner, has not conducted cross-examination of witnesses in an effective manner.

JUDGMENT :

Yogesh Khanna, J.

(Through Video Conferencing)

1. This petition challenges the impugned order dated 02.09.2021 passed by the learned Trial Court in case FIR No.207/2016 registered at police station Tilak Marg titled State vs. Dinesh Chand Sharma whereby an application of the petitioner under Section 311 Criminal Procedure Code (hereinafter referred as Cr P C) was dismissed.

2. It is the submission of the learned senior counsel for the petitioner that PW38 Mr. Amit Roy, DCP is an important witness in the present matter and the erstwhile learned counsel Mr. Siddharth Kashyap had chosen not to cross examine the said witness despite an opportunity being granted to him; but thereafter new counsel was appointed and after going through the record, he was of the view cross examination of PW38 is necessary, hence an application under Section 311 Cr P C was filed. Such application of the petitioner was dismissed by the learned Trial Court with the following reasoning:-

“Accused Sushil Ansal had been facing this trial for long. He had been represented by his counsel Sh. Siddhartha Kashyap till a new counsel had taken charge just recently at the time when final arguments are being addressed on behalf of the prosecution. It is pertinent to note that Sh. Siddhartha Kashyap is still his counsel as he is appearing for him along with the new counsel. Due opportunity to cross examine PW-38 was afforded to accused Sushil Ansal and a conscious decision was taken on his behalf to not to cross examine PW-38. The plea on behalf of the accused that he is entitled to a full opportunity to defend himself and accordingly seek further permission to cross examine PW-38 is baseless in view of the fact that the said full opportunity has already been granted to accused and availed by him. The plea of the applicant that the matter is pending for a considerable period of time and accused could not contemplate and consider that the matter require affirmative and positive cross examination of PW-38 appears to be baseless as pendency of matter for long rather provides ample time and opportunity to mull over the issue and take appropriate action.

The plea of the applicant that no prejudice would be caused to the prosecution is fallacious as affording further opportunity despite availing the same would cause delay and thereby defeating the ends of justice. In judgement Shiv Kumar Yadav vs. GNCT (2016) 2 SCC 402, it was held by Hon'ble Supreme Court that :

"15 .... While advancement of justice remains the prime object a flaw, it cannot be understood that recall 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 follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in the court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross examination ..... "

The change of counsel and the decision of the new counsel to cross examine any witness who was not cross examined by the previous counsel is no ground to exercise power u/s 311. CrPC for recalling the witness where due opportunity was afforded earlier.

Lastly this is a criminal trial and not a game where, if one party was afforded any opportunity for recalling any witness for valid reasons, the other party would ask for chance as a matter of right without any reason. Accordingly, considering the totality of the circumstances, this court is not inclined to exercise power u/s 311 CrPC to recall PW-38 as no justifiable grounds exists for the same. Application is accordingly dismissed.”

3. It is the submission of