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under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination.Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words: “What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.” 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is 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. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting 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. 17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court and an opportunity to cross-examine the said witnesses afforded to the appellant. In fairness to the counsel for the appellant, we must record that he assured us that given an opportunity to examine the witnesses the needful shall be done on two dates of hearing, one each for each witness without causing any un-necessary delay or procrastination. The Trial Court shall endeavour to conclude the examination of the two witnesses expeditiously and without unnecessary delay.

REPORTABLE

English: New York Times courtroom sketch of Ka...

English: New York Times courtroom sketch of Katy Metz under cross examination during the trial of ex-Alderman Thomas Cleary (Photo credit: Wikipedia)

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 874-875 OF 2012
(Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011)
P. Sanjeeva Rao …Appellant

Versus

The State of A.P. …Respondent

 

J U D G M E N T

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 by him under a bona fide impression that he could do so
after the evidence of the Trap Laying Officer (PW-11) had been recorded.
Mr. Ramanujan urged that while the lawyer may have committed a mistake in
presuming that the prosecution witnesses No. 1 and 2 could be recalled for
cross-examination at a later stage without the Trial Court granting to the
accused the liberty to do so, such a mistake should not vitiate the trial
by denying to the appellant a fair opportunity to cross-examine the said
witnesses. Heavy reliance was placed by learned counsel on the decision of
this Court in Rajendra Prasad Vs. Narcotic Cell [1999 SCC (Cri) 1062], in
support of his submission that no party to a trial can be denied the
opportunity to correct errors if any committed by it. If proper evidence
was not adduced or the relevant material was not brought on record due to
any inadvertence, the Court should be magnanimous in permitting such a
mistake to be rectified.
8. Appearing for the respondent Mr. H.P. Rawal, learned Additional
Solicitor General, contended that while cross-examination of PWs. 1 and 2
could be deferred at the option of the accused to a later stage, the Court
record does not show any such request having been made or any liberty being
reserved to the accused. It was, according to Mr. Rawal, a case where an
opportunity to cross-examine had been given to the accused and his counsel
but they had chosen not to avail of the same, in which case a belated
request for recall of the witnesses to exercise the right to cross-examine
could and has been rightly rejected by the Trial Court and that rejection
affirmed by the High Court. It was also submitted that the recall of the
prosecution witnesses, who have gone without cross-examination at an
earlier stage, is likely to prejudice the prosecution inasmuch as the
incident in question is as old as of the year 2005, while the request for
recall was made only in the year 2011, nearly four years after the framing
of the charges against the appellant.
9. The appellant who was working as Sub Divisional Officer in the
B.S.N.L., Karimnagar, is accused of having demanded and received a bribe of
Rs.3,000/- from the complainant who was examined as PW1 at the trial. The
trap led by the CBI in which PW2 was associated as an independent witness
is said to have succeeded in catching the petitioner red-handed with the
bribe money eventually leading to the filing of a charge-sheet against him
before the Court of Special Judge for CBI cases at Hyderabad in March,
2005. Charges were framed against the petitioner on 7th December, 2006.
While PW1, the complainant in the case, was examined on two different dates
i.e. 3rd March, 2008 and 13th June, 2008, prosecution witness No.2 was
similarly examined on 18th July, 2008 and 31st July, 2008. It is common
ground that both the witnesses have stood by the prosecution case for they
have not been declared hostile by the prosecution. This implies that the
depositions of the two witnesses are incriminating against the appellant
and in the absence of any cross-examination their version may be taken to
have remained unchallenged. It is also common ground that PWs. 3 to 11
were examined during the period 31st July, 2008 and 28th December, 2011.
The Trap Laying Officer (PW 11) was examined on 18th February, 2010 and on
1st April, 2010. The two applications referred to earlier were filed before
the Trial Court at that stage, one asking for recall of PWs. 1 & 2 for
cross-examination and the other asking for a deferring that the cross-
examination of PW 12 till PWs. 1 and 2 are recalled and cross-examined.
10. The only question that arises in the above backdrop is whether the
decision not to cross-examine PWs 1 and 2 was for the reasons stated by the
petitioner or for any other reason. There is no dispute that no formal
application was filed by the petitioner nor even an oral prayer made before
the Trial Court to the effect that the exercise of the right to cross-
examine the two witnesses was being reserved till such time the Trap Laying
Officer was examined. This is precisely where counsel for the appellant
has stepped in and filed a personal affidavit in which he has stated that
even though there is no formal prayer made to that effect he intended to
cross-examine the two witnesses only after the deposition of the Trap
Laying Officer was recorded. In the peculiar circumstances of the case, we
feel that the version given by the counsel may indeed be the true reason
why two witnesses were not cross-examined on the conclusion of their
examination-in-chief. We say so primarily because no lawyer worth his salt
especially one who had sufficient experience at the Bar like the one
appearing for the appellant would have let the opportunity to cross-examine
go unavailed in a case where the witnesses had supported the prosecution
version not only in regard to the demand of bribe but also its payment and
the success of the trap laid for that purpose. There is no gainsaying that
every prosecution witness need not be cross-examined by the defence. It
all depends upon the nature of the deposition and whether the defence
disputes the fact sought to be established thereby. Formal witnesses are
not at times cross-examined if the defence does not dispute what is sought
to be established by reference to his/her deposition. The decision to cross-
examine is generally guided by the nature of the depositions and whether it
incriminates the accused. In a case like the one at hand where the
complainant examined as PW1 and the shadow witness examined as PW2 had
clearly indicted the appellant and supported the prosecution version not
only regarding demand of the bribe but also its receipt by the appellant
there was no question of the defence not cross-examining them. The two
witnesses doubtless provided the very basis of the case against the
appellant and should their testimony have remained unchallenged, there was
nothing much for the appellant to argue at the hearing. The depositions
would then be taken to have been accepted as true hence relied upon. We
may, in this connection, refer to the following passage from the decision
of this Court in Sarwan Singh v. State of Punjab (2003) 1 SCC 240:

“It is a rule of essential justice that whenever the opponent has
declined to avail himself of the opportunity to put his case in
cross-examination it must follow that the evidence tendered on that
issue ought to be accepted.”
11. We are, therefore, inclined to believe that the two prosecution
witnesses were not cross-examined by the counsel for the appellant not
because there was nothing incriminating in their testimony against the
appellant but because counsel for the appellant had indeed intended to
cross-examine them after the Trap Laying Officer had been examined. The
fact that the appellant did not make a formal application to this effect
nor even an oral prayer to the Court to that effect at the time the cross-
examination was deferred may be a mistake which could be avoided and which
may have saved the appellant a lot of trouble in getting the witnesses
recalled. But merely because a mistake was committed, should not result in
the accused suffering a penalty totally disproportionate to the gravity of
the error committed by his lawyer. Denial of an opportunity to recall the
witnesses for cross-examination would amount to condemning the appellant
without giving him the opportunity to challenge the correctness of the
version and the credibility of the witnesses. It is trite that the
credibility of witnesses whether in a civil or criminal case can be tested
only when the testimony is put through the fire of cross-examination.
Denial of an opportunity to do so will result in a serious miscarriage of
justice in the present case keeping in view the serious consequences that
will follow any such denial.
12. The nature and extent of the power vested in the Courts under Section
311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram
v. The State of Rajasthan & Ors. (2008) 15 SCC 652. This Court held that
the object underlying Section 311 was to prevent failure of justice on
account of a mistake of either party to bring on record valuable evidence
or leaving an ambiguity in the statements of the witnesses. This Court
observed:

“This is a supplementary provision enabling, and in certain
circumstances imposing on the Court, the duty of examining a
material witness who would not be otherwise brought before it. It
is couched in the widest possible terms and calls for no
limitation, either with regard to the stage at which the powers of
the Court should be exercised, or with regard to the manner in
which it should be exercised. It is not only the prerogative but
also the plain duty of a Court to examine such of those witnesses
as it considers absolutely necessary for doing justice between the
State and the subject. There is a duty cast upon the Court to
arrive at the truth by all lawful means and one of such means is
the examination of witnesses of its own accord when for certain
obvious reasons either party is not prepared to call witnesses who
are known to be in a position to speak important relevant facts.

The object underlying Section 311 of the Code is that there may not
be failure of justice on account of mistake of either party in
bringing the valuable evidence on record or leaving ambiguity in
the statements of the witnesses examined from either side. The
determinative factor is whether it is essential to the just
decision of the case. The section is not limited only for the
benefit of the accused, and it will not be an improper exercise of
the powers of the Court to summon a witness under the Section
merely because the evidence supports the case of the prosecution
and not that of the accused. The section is a general section which
applies to all proceedings, enquires and trials under the Code and
empowers the Magistrate to issue summons to any witness at any
stage of such proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is “at any stage of inquiry or
trial or other proceeding under this Code”. It is, however, to be
borne in mind that whereas the section confers a very wide power on
the Court on summoning witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power the greater is the
necessity for application of judicial mind.”
(emphasis supplied)
13. Grant of fairest opportunity to the accused to prove his innocence
was the object of every fair trial, observed this Court in Hoffman Andreas
v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage
is in this regard apposite:

“In such circumstances, if the new Counsel thought to have the
material witnesses further examined, the Court could adopt latitude
and a liberal view in the interest of justice, particularly when
the Court has unbridled powers in the matter as enshrined in
Section 311 of the Code. After all the trial is basically for the
prisoners and courts should afford the opportunity to them in the
fairest manner possible.”

(emphasis supplied)
14. The extent and the scope of the power of the Court to recall
witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of
India & Anr. 1991 Supp (1) 271, where this Court observed:

“The principle of law that emerges from the views expressed by this
Court in the above decisions is that the criminal court has ample
power to summon any person as a witness or recall and re-examine
any such person even if the evidence on both sides is closed and
the jurisdiction of the court must obviously be dictated by
exigency of the situation, and fair-play and good sense appear to
be the only safe guides and that only the requirements of justice
command and examination of any person which would depend on the
facts and circumstances of each case.”

(emphasis supplied)
15. Discovery of the truth is the essential purpose of any trial or
enquiry, observed a three-Judge Bench of this Court in Maria Margarida
Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE
550. A timely reminder of that solemn duty was given, in the following
words:

“What people expect is that the Court should discharge its
obligation to find out where in fact the truth lies. Right from
inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the main
purposes underlying the existence of the courts of justice.”

 

 

16. We are conscious of the fact that recall of the witnesses is being
directed nearly four years after they were examined in chief about an
incident that is 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. To that extent the apprehension expressed by Mr. Rawal, that the
prosecution may suffer prejudice on account of a belated recall, may not be
wholly without any basis. Having said that, we are of the opinion that on
a parity of reasoning and looking to the consequences of denial of
opportunity to cross-examine the witnesses, we would prefer to err in
favour of the appellant getting 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.
17. In the result, we allow these appeals, set aside the orders passed by
the Trial Court as also the High Court and direct that the prosecution
witnesses No.1 and 2 shall be recalled by the Trial Court and an
opportunity to cross-examine the said witnesses afforded to the appellant.
In fairness to the counsel for the appellant, we must record that he
assured us that given an opportunity to examine the witnesses the needful
shall be done on two dates of hearing, one each for each witness without
causing any un-necessary delay or procrastination. The Trial Court shall
endeavour to conclude the examination of the two witnesses expeditiously
and without unnecessary delay. The parties shall appear before the Trial
Court on 6th August, 2012.

 

 

……………………….……..……J.
(T.S. THAKUR)

 

 

………………………….…..……J.
(GYAN SUDHA MISRA)
New Delhi
July 2, 2012

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