Faizabad, 'State v. Abdul Rashid, by which the application of the on 10 Jan 2025

Judgment

2. Heard. The present application has been filed for the following main reliefs:- "Wherefore it is most respectfully prayed that this Hon'ble Court may kindly be pleased to direct the Learned Court Below to quash the order dated 05.11.2024 passed by Learned Sessions Judge, FTC, Ayodhya, in Session Trial No. 195/2021, under section 3/5Ka/5Kha/8 Prevention of Cow Slaughter Act & Section 11Gha of Prevention of Animal Cruelty Act, Police Station - Patranga, District Ayodhya/Faizabad, 'State Vs Abdul Rashid, by which the application of the applicant/accused filed for recall of witness i.e. PW-9 (S.I. Sudhakar Yadav), has been rejected in a biased manner, without considering the material available on record and the opportunity of Cross Examination has also been closed, and further direct the Learned Trial Court to summon and examine the PW-9 (S.I. Sudhakar Yadav) for cross examination, in the interest of justice."

3. The present application has been filed by the applicant challenging the order dated 05.11.2024, passed by Sessions Judge, FTC, Ayodhya (in short 'trial court') on an application preferred by the applicant under Section 311 Cr.P.C. praying therein to recall P.W.-9/Sub Inspector Sudhakar Yadav (Investigating Officer).

The relevant facts of the case have been narrated in paragraphs 4 to 17 of this application, which are extracted hereunder:- "4. That brief facts of the case are that a false and fabricated First Information Report was lodged by the Opposite Party No.2 on 22/06/2021, which was registered as F.I.R./Case Crime No. 139/2021, under section 3/5Ka/5Kha/8 Prevention of Cow Slaughter Act & Section 11Gha of Prevention of Animal Cruelty Act, Police Station Patranga, District Ayodhya/Faizabad. A Photo/typed copy of the F.I.R. dated 22.06.2021 is annexed herewith as Annexure No. 2 to this affidavit.

5. That the applicant is not named in the aforesaid First Information Report. 2

6. That the investigating officer investigated the matter and filed the chargesheet on 04/09/2021 against the applicant and one another and in the said chargesheet 20 names of the prosecution witnesses have been mentioned. A copy of the chargesheet dated 04/09/2021 is being annexed herewith as ANNEXURE No.3 to this petition.

7. That during course of trial the investigating officer i.e. Sub Inspector Sudhakar Yadav was examined as PW-9, on 27/09/2024 and the counsel for the applicant requested for postponing the date for cross examination, but the Learned Trial Court refused to postpone the case and closed the opportunity of cross examination on same day i.e. on 27/09/2024. A copy of the statement of Chief as PW-9 is being annexed herewith as ANNEXURE No.4 to this petition.

8. That the Learned Trial Court rejected the said request and proceeded to close the right for cross examination.

9. That after taking the copy of the statement of witness PW-9 on 27/09/2024, who is the investigating officer of the case, the Learned Trial Court closed the opportunity of the applicant for cross examination on same day i.e. on 27/09/2024, as such the applicant moved an application on 19/10/2024 before the Learned Trial Court under section 311 Cr.P.C. for recall of the witness PW-9 / Investigating Officer for cross examination. A copy of the application dated 19/10/2024 is being annexed herewith as ANNEXURE No.5 to this petition.

10. That in the application under section 311 Cr.P.C. it has been mentioned that PW-9 has inserted the new facts in his statement, as such the cross examination of the Investigating Officer is inevitably necessary.

11. That the applicant only wants one day time for cross examination of the witness for only limited questions, for the reason the applicant is not involved in committing the alleged offence.

12. That it is necessary to cross examine the investigating officer who conducted the investigation and during investigation the PW-9 did not make any effort to give his statement.

13. That the Section 311 Cr.P.C. reads as under-

311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).]- 3 If a Magistrate of the first class is satisfied that, for the purposes of any investitgation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]

14. That the purpose of the trial is to examine the witness and find out the truth and the accused has the right to cross examine if any fact comes in the trial.

15. That the Hon'ble Apex Court in the case of State represented by the Deputy Superintendent of Police Vs Tr. N. Srinivasan SCC 2021(2) Page 10 made observation that the application under section 311 Cr.P.C. must be allowed when the necessary facts of the case is mentioned.

16. That the applicant has falsely been implicated only being the owner of the vehicle whereas the applicant had no knowledge about the use of his vehicle for that purpose and the applicant has never been involved in such type of offence.

17. That the Learned Court Below also did not consider the law laid down by Hon'ble Apex Court in the case of The Secretary Department of Horticulture, Chandigarh and Others Vs Raghu Raj, reported in AIR 2009 SC 514, whereby the Hon'ble Apex Court clearly held that the party should not suffer on account of default or non-appearance of the advocates."

5. The trial Court upon due consideration of the facts of the case rejected the application under Section 311 Cr.P.C. filed by the applicant for recalling of P.W.-9/Sub Inspector Sudhakar Yadav (Investigating Officer) for cross-examination vide impugned order dated 05.11.2024. The relevant portion of the order dated 05.11.2024 is extracted hereinunder:- "सुना तथा पत्रावली का सम्यक रूप से अवलोकन किकया। प्राथ(cid:24)ना पत्र 14 ब के माध्यम से अभि(cid:29)युक्त राभि द का यह कहना है किक पी०डब्लू०-9 का किदनांक 27.4.24 को अवसर समाप्त कर किदया गया था। प्राथ+ को पी०डब्लू०-9 सुधाकर यादव से जि.रह किकया .ाना न्यायकिहत में आवश्यक है। पत्रावली के अवलोकन से किवकिदत होता है किक किदनांक 27.4.24 को पत्रावली पर कोई तितभिथ किनयत नहीं थी। .हाँ तक पी०डब्लू०-9 के साक्ष्य का अवसर समाप्त करने का प्रश्न है किदनांक -9 सरकारी कम(cid:24)चारी गैर .नपद से न्यायालय के समक्ष वास्ते जि.रह उपस्थिस्थत थे। मौका प्राथ(cid:24)ना पत्र अभि(cid:29)युक्त की ओर से प्रस्तुत किकया गया था जि.से न्यायालय द्वारा पया(cid:24)प्त आधार न पाते हुये किनरस्त किकया गया। को पी०डब्लू०

27.9.24 4 .हाँ तक प्राथ(cid:24)ना पत्र 15 ब का प्रश्न है अभि(cid:29)युक्त राभि द की ओर से यह कहना है किक प्राथ+ के किवरूद्ध साक्षी ने पी०डब्लू०-7 किदनांक 24.5.24 को बयान किदया गया था तथा पी०डब्लू०-8 सं.य साक्षी किदनांक 25.7.24 को न्यायालय पर बयान किदये थे तथा पी०डब्लूए-2 मनीष किदनांक 8.8.22 को न्यायालय पे बयान किदये थे। परन्तु अभि(cid:29)युक्त राभि द की जि.रह करने से रह गया था। पत्रावली के अवलोकन से किवकिदत होता है है किक मामला गं(cid:29)ीर प्रकृ तित का है। .ब .ब अभि(cid:29)यो.न पक्ष द्वारा साक्षी को प्रस्तुत किकया गया है। तब तब अभि(cid:29)युक्त की ओर से या तो स्थगन प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया या जि.रह नहीं की गयी है। इस परिरप्रेक्ष्य में पत्रावली के आदे पत्र के अवलोकन से किवकिदत होता है किक अभि(cid:29)युक्त पक्ष द्वारा किदनांक 24.3.22 को पी०डब्लू0-1 से जि.रह नही की गयी तब इनका जि.रह का अवसर समाप्त किकया गया। किदनांक इनका 7.4.22 को न्यायालय द्वारा अभि(cid:29)युक्त की ओर से उपस्थिस्थत प्राथ(cid:24)ना पत्र 8 अ अंतग(cid:24)त धारा 311 द०प्र०स० न्यायकिहत स्वीकार करते हुये पी०डब्लू0-1 से जि.रह का अवसर प्रदान किकया गया। .ब अभि(cid:29)यो.न साक्षी पी०डब्लू०-2 मनीष न्यायालय में उपस्थिस्थत हुये तब किदनांक 14.10.22 को अभि(cid:29)युक्त राभि द की ओर से बार बार पुकार कराये .ाने के बाद (cid:29)ी समय 4.20 पी.एम. तक पी०डब्लू0-2 से जि.रह नहीं की गयी ऐसी स्थिस्थतित में अभि(cid:29)युक्त राभि द का पी०डब्लू0-2 से जि.रह का अवसर समाप्त किकया गया। इसी प्रकार अभि(cid:29)यो.न साक्षी पी०डब्लू०-6 किदनांक 18.1.24 को उपस्थिस्थत हुये मुख्य परीक्षा अभि(cid:29)लिललिKत किकया गया। अभि(cid:29)युक्त पक्ष की ओर से मौका प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया किदनांक 26.2.24 को पी०डब्लू0-6 पुनः उपस्थिस्थत हुये अभि(cid:29)युक्त पक्ष की ओर से पुनः मौका प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया। किदनांक 4.3.24 को पी०डब्लू०-6 पुनः उपस्थिस्थत हुये अभि(cid:29)युक्त पक्ष की ओर से जि.रह नहीं किकया गया किMर मौका प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया। किदनांक 24.5.24 को अभि(cid:29)यो.न साक्षी पी०डब्लू०-7 का बयान अभि(cid:29)लिललिKत किकया गया अभि(cid:29)युक्त पक्ष की ओर से मौका प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया। अभि(cid:29)युक्त पक्ष को जि.रह के लिलये न्यायकिहत में अवसर किदया गया किदनांक 25.6.24 को पी०डब्लू०-7 पुनः उपस्थिस्थत हुये समय 31.15 पी.एम. तक अभि(cid:29)युक्त पक्ष को जि.रह का अवसर प्रदान किकया गया किकन्तु स्थगन प्राथ(cid:24)ना पत्र पुनः प्रस्तुत किकया गया। ऐसी स्थिस्थतित में बार बार स्थगन प्राथ(cid:24)ना पत्र प्रस्तुत करने की स्थिस्थतित को देKते हुये अभि(cid:29)युक्त पक्ष को पी०डब्लू0-7 से साक्ष्य का अवसर समाप्त किकया गया। किदनांक 25.7.24 को पी०डब्लू०-8 सं.य कु मार श्रीवास्तव परीक्षण हेतु उपस्थिस्थत हुये अभि(cid:29)युक्त पक्ष की ओर से पुनः स्थगन प्राथ(cid:24)ना पत्र प्रस्तुत किकया गया जि.से न्यायालय द्वारा Kारिर. करते हुये अभि(cid:29)युक्त पक्ष को पी०डब्लू०-8 से जि.रह का अवसर समाप्त किकया गया। पत्रावली के अवलोकन से यह (cid:29)ी किवकिदत होता है किक उक्त पत्रावली एक्सन प्लान की सूची में है। जि.समें समय समय में माननीय उच्च न्यायालय द्वारा ीघ्र किवचारण समाप्त किकये .ाने का किनदT प्राप्त होता रहा है। यह त्वरिरत न्यायालय है उक्त न्यायालय को माननीय उच्च न्यायालय एवं माननीय उच्चतम न्यायालय द्वारा अलग से वाद के ीघ्र किनस्तारण हेतु किद ा किनदT प्राप्त है। अभि(cid:29)युक्त पक्ष को अभि(cid:29)यो.न सातिक्षयों से करने का पया(cid:24)प्त अवसर किदया .ाता रहा है। किकन्तु पूरे किवचारण के दौरान अभि(cid:29)युक्त पक्ष का आचरण किकसी न किकसी तरह से उपस्थिस्थत अभि(cid:29)यो.न सातिक्षयो से जि.रह नहीं किकये .ाने से यह दर्शि त करता है किक अभि(cid:29)युक्त पक्ष मामले को किबलस्थिम्बत करना चाहता है। पी०डब्लू०-9 किववेचक गैर .नपद से न्यायालय के समक्ष उपस्थिस्थत हुये थे। जि.नको पुनः बुलाना न्यायकिहत में उतिचत प्रतीत नहीं होता है। अभि(cid:29)युक्त पक्ष द्वारा प्राथ(cid:24)ना पत्र में .ो अधार लिलया गया है। वह मामले के सम्पूण(cid:24) एवं परिरस्थिस्थतितयो को देKते हुये मामले के सम्यक किनस्तारण एवं किवतिध पूण(cid:24) किवकिनश्चय के लिलये आवश्यक प्रतीत नही होता है। प्राथ(cid:24)ना पत्र 14 ब व 15 ब किनरस्त किकये .ाने योग्य है। आदे प्राथ(cid:24)ना पत्र 14ब व 15ब अंतग(cid:24)त धारा 311 द०प्र०स० Kारिर. किकया .ाता है। पत्रावली वास्ते बयान अंतग(cid:24)त धारा 313 किदनांक 13.11.2024 को पे हो।"

6. In the aforesaid background of the case, present application has been filed.

7. Learned counsel for the applicant says that as per settled principle of law the application ought to have been allowed by the trial Court and the order impugned is against the principle settled in this regard as also the observations made by the Hon'ble Apex Court in regard to expression 'Fair Trial'. In this regard, he placed reliance on the judgment dated 30.07.2008 5 passed by the Hon'ble Apex Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd. reported in 2008 (11) SCC 108. As such, interference of this Court is required in the matter.

8. Learned AGA opposed the present application. He stated that the application under Section 311 Cr.P.C. was moved with sole intention to delay the trial, which is impermissible and in the circumstances of the case, the application has rightly been rejected by the trial court. Prayer is to affirm the impugned order and dismiss the instant application.

9. Considered the submissions advanced by the learned counsel for the parties and perused the record.

10. Considered the aforesaid and the observations made by the trial court in the order dated 05.11.2024 and the principles related to recall of witness under Section 311 Cr.P.C. settled by the Hon'ble Apex Court in the case(s) of Mohd. Khalid Versus State of West Bengal, (2002) 7 SCC 334; Hanuman Prasad (Supra), Natasha Singh vs. CBI, (2013) 5 SCC 741:(2013) 4 SCC (Cri) 828:2013 SCC OnLine SC 444; Rajaram Prasad Yadav vs. State of Bihar and another, AIR 2013 SC 3081; State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402; State of Haryana vs. Ram Mehar and others, (2016) 8 SCC 762; Swapan Kumar Chatterjee vs. Central Bureau of Investigation, (2019) 14 SCC 328; Varsha Garg vs. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986 and also by this Court in Application under Section 482 Cr.P.C. No. 274 of 2022 (Ram Nayak Singh vs. State of U.P. & Another).

11. It is well settled by catena of decisions by the Hon'ble Apex Court that the power under Section 311 Cr.P.C. must be exercised with the care, caution and circumspection and only for strong and valid reasons. The recall of a witness already examined should not be a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society.

12. The Court is fully conscious of the position that after all the trial is basically for the prisoners/accused and the Court should afford an opportunity to them in the fairest manner possible. At the same time, the Court should bear in 6 mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Recalling of witnesses has to be applied on the basis of judicially established and accepted principles.

13. The jurisdiction under Section 482 of the Code is extraordinary and it can be used only in such cases where there is gross injustice or clear abuse of process of law. It can not be used to help such person who is not cooperating in fair trial. Similarly, power conferred to Trial Court in Section 311 of the Code to summon any person as witness for examination, cross-examination or for further examination can be exercised only in such cases where his examination is necessary for the just decision of the case. Such power cannot be invoked to harass the witness who has already been examined or for causing delay in trial.

14. In the facts of the case, it would be apt to refer the observations made in the judgment(s) passed in the case of Mohd. Khalid (Supra); Ram Mehar (Supra); State (NCT of Delhi) (Supra) and Swapan Kumar Chatterjee (Supra).

15. In the case of Mohd. Khalid (Supra), the Hon'ble Apex Court observed as under:- "Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in- chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667 and N.G. Dastane v. Shrikant Shivde (2001) 6 SCC 135. In the case of State of U.P. v. Shambhu Nath Singh and others (2001) 4 SCC 667, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:- "9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts 7 that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner."

16. In the case of Ram Mehar (Supra) the Hon'ble Apex Court observed as under:- "23. In Bablu Kumar and others v. State of Bihar and another, (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC, Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, J. Jayalalithaa and others v. State of Karnataka and others (2014) 2 SCC 401, State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. It has been further stated that the law does not countenance a "mock trial". It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is - all kinds of individual notions of fair trial have no room"." "38. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the 8 order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance".

17. The relevant paragraphs of the judgment passed in the case of State (NCT of Delhi) (Supra) are extracted hereunder:- "10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.

11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case.

14. In Hoffman Andreas case [Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 : 2001 SCC (Cri) 1488] , the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of the illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed : (SCC p. 432, para 6) “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross- examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the 9 erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. 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.”

15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross- examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, 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 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.

16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the authorities concerned including the Law Commission and the Bar Council of India.

27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 CrPC is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that 10 the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.

28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 CrPC has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court [Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.

29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; 11 (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted."

18. In the case of Swapan Kumar Chatterjee (Supra), a note of caution was sounded and the same can be deduced from paragraphs 11 and 12 of the report, which are as under:- "11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re- examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.

12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."

19. Upon due consideration of aforesaid facts as also the law settled on the issue, this Court does not find any illegality in the impugned order dated

05.11.2024. It is for the reason that this Court finds that the application under Section 311 Cr.P.C. was preferred by the applicant only to delay the proceedings pending before the trial court and the same can be deduced from the following facts:- (i) As per the impugned order dated 05.11.2024, the defence avoided to cross- examine the witnesses of prosecution including the witnesses of the fact. On

24.03.2022, PW-1 was not examined and therefore, the opportunity to cross- examine PW-1 was closed and thereafter, vide order dated 07.04.2022, the trial 12 court permitted the defence to cross-examine PW-1. PW-2 was also not cross- examined on 14.10.2022 and therefore, the opportunity to cross-examine PW-2 was closed. On 18.01.2024, PW-6 was not cross-examined and thereafter, for cross-examination of PW-6, two dates were fixed i.e. 26.02.2024 and 04.03.2024 and on 04.30.2024, PW-6 was not cross-examined. PW-7 was not cross- examined on 25.05.2024 and for cross-examination of PW-7, on the request of defence, the case was adjourned and again on 25.06.2024, PW-7 was not cross- examined and therefore, the opportunity to cross-examine PW-7 was closed. On

25.07.2024, the opportunity to cross-examine PW-8 was closed. (ii) In the application under Section 311 Cr.P.C., the tangible reasons for recalling PW-9 have not been indicated, which are required in view of the judgment passed by the Hon'ble Apex Court in the case of State (NCT of Delhi) (Supra).

20. For the aforesaid, this Court does not find any illegality in the impugned order dated 05.11.2024. The instant application is hereby dismissed. Costs made easy. Order Date :- 10.01.2025/Arun/-