IMPORTANT POINTS
Trial should be fair not only from the view point of accused but also from that of the victim and the society.
Power u/s 311 CrPC can be exercised only for valid reasons.
With Fast track courts being established, Fast track procedures also need to be put in place.
There is need to consider skipping of recording of evidence on multiple times, recording of statement before police u/s 161 CrPC etc. to ensure fast track justice to victim.
Although competence of counsel is subjective matter, incompetence of counsel cannot be easily accepted.

Headnote:(a) Administration of Justice – Criminal trial – Fair trial – Constitution of India – Article 21 – Procedural law should contain provisions for fair trial – Where statutory laws are silent, court may evolve a principle to met a situation – Statutory provisions should be interpreted keeping principle of fair trial in mind – Trial should be fair not only from the view point of accused but also from that of the victim and the society. (Para 10, 11)
       (b) Code of Criminal Procedure, 1973 – Section 311 – Recall of witnesses – Power reserved with court only to prevent any injustice – Can be exercised only for valid reasons – Scope of the power varies from case to case – Normally a closed trial could not be reopened but illness and death of the counsel may be a valid ground for recall of witnesses – Mere change of counsel not a valid ground. (Para 11, 14, 15)
       (2013) 14 SCC 461; (2000) 10 SCC 430 – Relied upon
       (c) Criminal trial – Conduct of – Change of counsel – On allegation of unfitness – Need to reform law to avoid grievance that conducting counsel was unfit or incompetent – Suggested to concerned authorities including Law Commission and Bar Council of India – Advocates Act. (Para 16)
       (2005) 11 SCC 600 – Relied upon
       (d) Criminal trial – Speedy trial – Constitution of India – Article 21 – Fast track courts being established – Fast track procedures not yet in place – Recording of evidence on multiple times, recording of statement before police u/s 161 CrPC – Need to consider skipping – Fast track justice to victim. (Para 18, 19)
       (2014) 8 SCC 916; (2014) 8 SCC 913; (1989) 4 SCC 436; (1996) 2 SCC 384 – Relied upon
       (e) Criminal trial – Change of counsel – Accused represented by counsel of his choice – Continually instructing his counsel – Also holding legal interviews with the counsel – Counsel conducting trial including examination and cross-examination of witnesses – Accused wishing to change counsel on ground of their incompetence – Although competence of counsel is subjective matter, incompetence of counsel cannot be easily accepted. (Para 25)
       (f) Code of Criminal Procedure, 1973 – Section 309 and 311 – Speedy trial – Recall of witnesses – High Court not finding fault with conduct of trial – Also recording satisfaction that recall of all prosecution witnesses not necessary – Yet allowing recall of 13 witnesses including prosecutrix on the ground that accused being in custody would himself suffer by adopting delaying tactics – No reason given justifying recall of the 13 witnesses – Not considering hardship to the witnesses, undue delay in the trial etc. – Mere observation that recall was necessary “for ensuring fair trial” is not enough. (Para 26, 27, 28)
       (1984) 1 SCC 722; (2001) 4 SCC 667; (2013) 7 SCC 125; (2015) 1 SCALE 542; (2014) 13 SCC 59; (2012) 7 SCC 56; (2012) 8 SCC 263; (2002) 5 SCC 234; (2009) 6 SCC 767; (2000) 5 SCC 668; (2002) 4 SCC 578; (1995) 1 SCC 14; (2013) 5 SCC 741; (1991) Supp. 1 SCC 271; (2004) 4 SCC 158; (2013) 16 SCC 173; Crl.M.C.8479/2006 & Crl.M.A. 14359/2006 (Delhi H.C.); (2007) 11 SCC 191; (2006) 9 SCC 386; (1980) 1 SCC 81; (2011) 8 SCC 136; (1991) 1 SCC 286; (2009) 16 SCC 785; (1981) 3 SCC 191; (1997) 6 SCC 162; (2010) 10 SCC 677; (2012) 5 SCC 370; (1966) 1 SCR 178; (1967) 3 SCR 415; (1974) 4 SCC 186; (2002) 1 SCC 655; (2005) 1 SCC 115; (2006) 7 SCC 529; (2007) 11 SCC 211; (2008) 3 SCC 602; (2008) 11 SCC 108; (2008) 15 SCC 652; (2012) 3 SCC 387; AIR 2012 SC 750; (2014) 2 SCC 401; Crl.A. No.242/2010, (High Court of Delhi) – Referred
       (g) Constitution of India – Article 227 r/w section 482, Code of Criminal Procedure, 1973 – Power to be exercised sparingly – Order to be supported by reasons – High Court affirming the view taken by the trial court rejecting the stand of the accused – Still directing recall of 13 witnesses – Conclusion inconsistent with reasons given – Not sustainable. (Para 28)
       Facts of the case:
       On 6th December, 2014, a First Information Report was lodged alleging that the respondent accused who was the driver of cab No.DL-1YD-7910, Swift Dezire, hired by the victim on 5th December, 2014 for returning home from her office committed rape on her.
       Charges were framed on 13th January, 2015. Prosecution evidence commenced on 15th January, 2015 and was closed on 31st January, 2015. The witnesses were duly cross-examined by the counsel engaged by the accused. Statement of the accused under Section 313 Cr.P.C. was recorded on 3rd February, 2015. On 4th February, 2015, an application for recall of prosecutrix PW2 and formal witness PW-23 who booked the cab was made, but the same was rejected and the said order was never challenged. Thereafter, on 9th February, 2015, the accused engaged another counsel, who filed another application under Section 311 Cr.P.C. for recall of all the 28 prosecution witnesses on 16th February, 2015. The said application was dismissed on 18th February by the trial court but the same was allowed by the High Court vide impugned order dated 4th March, 2015 in a petition filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. Even though the specific grounds urged in the application were duly considered and rejected, it was observed that recall of certain witnesses was deemed proper for ensuring fair trial.
       Finding of the Court:
       Impugned judgment cannot be sustained.
       Result: Appeal allowed.

JUDGMENT

ADARSH KUMAR GOEL, J.

1. Leave granted. The issue raised for consideration in these appeals is whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (“Cr.P.C.”) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses, having regard to the facts and circumstances of this case.

2. Facts relevant for deciding the issue lie in a narrow compass. On 6th December, 2014, a First Information Report was lodged alleging that the respondent accused who was the driver of cab No.DL-1YD-7910, Swift Dezire, hired by the victim on 5th December, 2014 for returning home from her office committed rape on her. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 8th December, 2014. After investigation, charge sheet was filed before the Magistrate on 24th December, 2014. Since the accused was not represented by counsel, he was provided legal aid counsel. Thereafter on 2nd January, 2015, the accused engaged his private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in place of the legal aid counsel. Thereafter, the case was committed to the Court of Session. Charges were framed on 13th January, 2015. Prosecution evidence commenced on 15th January, 2015 and was closed on 31st January, 2015. The witnesses were duly cross-examined by the counsel engaged by the accused. Statement of the accused under Section 313 Cr.P.C. was recorded on 3rd February, 2015. On 4th February, 2015, an application for recall of prosecutrix PW2 and formal witness PW-23 who booked the cab was made, but the same was rejected and the said order was never challenged. Thereafter, on 9th February, 2015, the accused engaged another counsel, who filed another application under Section 311 Cr.P.C. for recall of all the 28 prosecution witnesses on 16th February, 2015. The said application was dismissed on 18th February by the trial court but the same was allowed by the High Court vide impugned order dated 4th March, 2015 in a petition filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. Even though the specific grounds urged in the application were duly considered and rejected, it was observed that recall of certain witnesses was deemed proper for ensuring fair trial.

3. Aggrieved by the order of the High Court, the victim as well as the State have moved this Court.

4. On 10th March, 2015, when the matter came up for hearing before this Court, stay of further proceedings was granted but since the prosecutrix had already been recalled in pursuance of the impugned order and further cross-examined, the said deposition was directed to be kept in the sealed cover and publication thereof by anyone in possession thereof was restrained.

5. We have heard learned Attorney General appearing for the State, Shri Colin Gonsalves, learned senior counsel appearing for the victim and Shri D.K. Mishra, learned counsel appearing for the accused.

6. Learned Attorney General submitted that the view taken by the High Court was erroneous and true scope of power of recall has not been appreciated. Firstly, though the power of recall is very wide and could be exercised at any stage, it could not be exercised mechanically, without just and adequate grounds. At the end of the trial, exercise of such power was permissible only in exceptional situations. Once trial is conducted by a counsel, another counsel could not seek retrial or recall of all the witnesses merely by alleging that the previous counsel was not competent. At any rate, the court permitting such a course must record cogent reasons. Secondly, harassment of the victim on being recalled for cross-examination was a relevant factor which was required to be taken into account. Thirdly, expeditious trial in a heinous offence was another factor which was required to be taken into account. In this case, a further factor which the impugned order i

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2015 Supreme(SC) 875

Cases Referred (44)