Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1187-1188 OF 2015

(ARISING OUT OF SLP (CRL.) NOS.1899-1900 OF 2015)

AG …APPELLANT

VERSUS

SHIV KUMAR YADAV & ANR. ...RESPONDENTS

WITH

CRIMINAL APPEAL NOS.1191-1192 OF 2015

(ARISING OUT OF SLP (CRL) NOS.2215-2216 OF 2015)

J U D G M E N T

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 6

th

December, 2014, a First Information Report was lodged

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alleging that the respondent accused who was the driver of cab

No.DL-1YD-7910, Swift Dezire, hired by the victim on 5

th

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 8

th

December, 2014. After investigation, charge sheet was

filed before the Magistrate on 24

th

December, 2014. Since the

accused was not represented by counsel, he was provided legal aid

counsel. Thereafter on 2

nd

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 13

th

January, 2015.

Prosecution evidence commenced on 15

th

January, 2015 and was

closed on 31

st

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 3

rd

February, 2015. On 4

th

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 9

th

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

16

th

February, 2015. The said application was dismissed on 18

th

February by the trial court but the same was allowed by the High

2

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Court vide impugned order dated 4

th

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 10

th

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

3

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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 ignores is that

the respondent was not facing a criminal case for the first time. He

was facing three cases of rape earlier and was well conversant with

the legal matters. He had made his own informed choice in

appointing a counsel. Interference by the High Court was

permissible only when the view taken by the trial court declining

prayer for recall was found to be perverse or unjust. It was further

pointed out that the conclusion recorded by the High Court was

contrary to the findings in the order rejecting various grounds

raised in support of prayer for recall. Learned Attorney General

made reference to decisions of this Court in Rajaram Prasad

Yadav vs. State of Bihar

1

, Mannan Sk vs. State of West

Bengal

2

, P. Sanjeeva Rao vs. State of A.P.

3

, State of Punjab

1

(2013) 14 SCC 461

2

(2014) 13 SCC 59

3

(2012) 7 SCC 56

4

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vs. Gurmit Singh

4

, State of Karnataka vs. Shivanna

5

,

Hoffman Andreas vs. Inspector of Customs

6

, Dayal Singh vs.

State of Uttaranchal

7

, Devender Pal Singh vs. State (NCT of

Delhi)

8

, NHRC vs. State of Gujarat

9

, Swaran Singh vs. State

of Punjab

10

.

7.Shri Gonsalves, learned senior counsel adopted the

submissions of learned Attorney General and further submitted that

the High Court appears to have been impressed by the fact that the

accused was in custody and thus had no reason to delay the trial.

A presumption that an accused in custody will not delay the trial

was not well founded and could not be a valid consideration for

retrial or recall of prosecutrix and other witnesses. The prosecutrix

had already faced court proceedings while recording her statement

under Section 164 Cr.P.C. and while facing cross-examination for

three days. He also placed reliance on P. Ramachandra Rao vs.

State of Karnataka

11

, Delhi Domestic Working Women’

Forum vs. Union of India

12

, Natasha Singh vs. CBI

13

, Mohanlal

Shamji Soni vs. Union of India

14

, Zahira Habibulla H. Sheikh

4

(1996) 2 SCC 384

5

(2014) 8 SCC 916

6

(2000) 10 SCC 430

7

(2012) 8 SCC 263

8

(2002) 5 SCC 234

9

(2009) 6 SCC 767

10

(2000) 5 SCC 668

11

(2002) 4 SCC 578

12

(1995) 1 SCC 14

13

(2013) 5 SCC 741

14

(1991) Supp. 1 SCC 271

5

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vs. State of Gujarat

15

, Sister Mina Lalita Baruwa vs. State of

Orissa

16

, Raminder Singh vs. State

17

, Rama Paswan vs. State

of Jharkhand

18

, Nisar Khan vs. State of Uttaranchal

19

,

Hussainara Khatoon (I) vs. Home Secy. State of Bihar

20

and

Vijay Kumar vs. State of U.P.

21

.

8.Learned counsel for the respondent-accused supported the

impugned order and submitted that though the previous counsel

had cross-examined the witnesses, he had not asked relevant

questions nor given suggestions which were required to be given.

He placed reliance on Kishore Chand vs. State of Himachal

Pradesh

22

, Hardeep Singh vs. State of Punjab

23

, Ram

Chander vs. State of Haryana

24

, State of Rajasthan vs. Ani @

Hanif

25

, Ritesh Tewari vs. State of U.P.

26

, Maria Margarida

Sequeria Fernandes vs. Erasmo Jack De Sequeria (dead)

through Lrs.

27

, Rajeshwar Prosad Misra vs. State of West

Bengal

28

, Jamatraj Kewalji Govani vs. The State of

Maharashtra

29

, Raghunandan vs. State of U.P.

30

, Shailendra

15

(2004) 4 SCC 158

16

(2013) 16 SCC 173

17

Crl.M.C.8479/2006 & Crl.M.A. 14359/2006, decided on 20.02.2008 (Delhi H.C.)

18

(2007) 11 SCC 191

19

(2006) 9 SCC 386

20

(1980) 1 SCC 81

21

(2011) 8 SCC 136

22

(1991) 1 SCC 286

23

(2009) 16 SCC 785

24

(1981) 3 SCC 191

25

(1997) 6 SCC 162

26

(2010) 10 SCC 677

27

(2012) 5 SCC 370

28

(1966) 1 SCR 178

29

(1967) 3 SCR 415

30

(1974) 4 SCC 186

6

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Kumar vs. State of Bihar

31

, Satyajit Banerjee vs. State of

West Bengal

32

, U.T. of Dadra & Haveli vs. Fatehsinh

Mohansinh Chauhan

33

, Iddar vs. Aabida

34

, Himanshu Singh

Sabharwal vs. State of M.P.

35

, Godrej Pacific Tech. Ltd. vs.

Computer Joint India Ltd.

36

, Hanuman Ram vs. The State of

Rajasthan

37

, Sudevanand vs. State through CBI

38

, Mohd.

Hussain @ Julfikar Ali vs. The State (Govt. of NCT) Delhi

39

, J.

Jayalalithaa vs. State of Karnataka

40

, Salamat Ali vs. State

(Crl.A. No.242/2010, High Court of Delhi).

9.We have considered the rival submissions.

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

31

(2002) 1 SCC 655

32

(2005) 1 SCC 115

33

(2006) 7 SCC 529

34

(2007) 11 SCC 211

35

(2008) 3 SCC 602

36

(2008) 11 SCC 108

37

(2008) 15 SCC 652

38

(2012) 3 SCC 387

39

AIR (2012) SC 750

40

(2014) 2 SCC 401

7

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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.

12.In Rajaram case, the complainant was examined but he did

not support the prosecution case. On account of subsequent events

he changed his mind and applied for recall under Section 311 Cr.P.C.

which was declined by the trial court but allowed by the High Court.

This Court held such a course to be impermissible, it was observed :

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“13. .. In order to appreciate the stand of the

appellant it will be worthwhile to refer to Section 311

CrPC, as well as Section 138 of the Evidence Act. The

same are extracted hereunder:

Section 311, Code of Criminal Procedure

“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 as a witness, or

examine 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.”

** *

Section 138, Evidence Act

“138. Order of examinations .—Witnesses shall

be first examined-in-chief then (if the adverse party

so desires) cross-examined, then (if the party

calling him so desires) re-examined.

The examination and cross-examination must relate

to relevant facts but the cross-examination need not

be confined to the facts to which the witness

testified on his examination-in-chief.

Direction of re-examination .—The

re-examination shall be directed to the explanation

of matters referred to in cross-examination; and if

new matter is, by permission of the court,

introduced in re-examination, the adverse party

may further cross-examine upon that matter.”

14. A conspicuous reading of Section 311 CrPC

would show that widest of the powers have been

invested with the courts when it comes to the

question of summoning a witness or to recall or

re-examine any witness already examined. A

reading of the provision shows that the expression

“any” has been used as a prefix to “ court”,

“inquiry”, “trial”, “other proceeding”, “person as a

witness”, “person in attendance though not

summoned as a witness ”, and “person already

examined”. By using the said expression “any” as a

9

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prefix to the various expressions mentioned above,

it is ultimately stated that all that was required to

be satisfied by the court was only in relation to such

evidence that appears to the court to be essential

for the just decision of the case. Section 138 of the

Evidence Act, prescribed the order of examination

of a witness in the court. The order of

re-examination is also prescribed calling for such a

witness so desired for such re-examination.

Therefore, a reading of Section 311 CrPC and

Section 138 Evidence Act, insofar as it comes to the

question of a criminal trial, the order of

re-examination at the desire of any person under

Section 138, will have to necessarily be in

consonance with the prescription contained in

Section 311 CrPC. It is, therefore, imperative that

the invocation of Section 311 CrPC and its

application in a particular case can be ordered by

the court, only by bearing in mind the object and

purport of the said provision, namely, for achieving

a just decision of the case as noted by us earlier.

The power vested under the said provision is made

available to any court at any stage in any inquiry or

trial or other proceeding initiated under the Code

for the purpose of summoning any person as a

witness or for examining any person in attendance,

even though not summoned as witness or to recall

or re-examine any person already examined.

Insofar as recalling and re-examination of any

person already examined is concerned, the court

must necessarily consider and ensure that such

recall and re-examination of any person, appears in

the view of the court to be essential for the just

decision of the case. Therefore, the paramount

requirement is just decision and for that purpose

the essentiality of a person to be recalled and

re-examined has to be ascertained. To put it

differently, while such a widest power is invested

with the court, it is needless to state that exercise

of such power should be made judicially and also

with extreme care and caution.”

13.After referring to earlier decisions on the point, the Court

culled out following principles to be borne in mind :

“17.1. Whether the court is right in thinking that

the new evidence is needed by it? Whether the

10

Page 11 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

evidence sought to be led in under Section 311 is

noted by the court for a just decision of a case?

17.2. The exercise of the widest discretionary

power under Section 311 CrPC should ensure that

the judgment should not be rendered on inchoate,

inconclusive and speculative presentation of facts,

as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the

court to be essential to the just decision of the

case, it is the power of the court to summon and

examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311

CrPC should be resorted to only with the object of

finding out the truth or obtaining proper proof for

such facts, which will lead to a just and correct

decision of the case.

17.5. The exercise of the said power cannot be

dubbed as filling in a lacuna in a prosecution case,

unless the facts and circumstances of the case

make it apparent that the exercise of power by the

court would result in causing serious prejudice to

the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be

exercised judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in

every respect essential to examine such a witness

or to recall him for further examination in order to

arrive at a just decision of the case.

17.8. The object of Section 311 CrPC

simultaneously imposes a duty on the court to

determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that

additional evidence is necessary, not because it

would be impossible to pronounce the judgment

without it, but because there would be a failure of

justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good

sense should be the safeguard, while exercising the

discretion. The court should bear in mind that no

party in a trial can be foreclosed from correcting

errors and that if proper evidence was not adduced

or a relevant material was not brought on record

due to any inadvertence, the court should be

magnanimous in permitting such mistakes to be

rectified.

11

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17.11. The court should be conscious of the

position that after all the trial is basically for the

prisoners and the court should afford an

opportunity to them in the fairest manner possible.

In that parity of reasoning, it would be safe to err in

favour of the accused getting an opportunity rather

than protecting the prosecution against possible

prejudice at the cost of the accused. The court

should bear in mind that improper or capricious

exercise of such a discretionary power, may lead to

undesirable results.

17.12. The additional evidence must not be

received as a disguise or to change the nature of

the case against any of the party.

17.13. The power must be exercised keeping in

mind that the evidence that is likely to be tendered,

would be germane to the issue involved and also

ensure that an opportunity of rebuttal is given to

the other party.

17.14. The power under Section 311 CrPC must

therefore, be invoked by the court only in order to

meet the ends of justice for strong and valid

reasons and the same must be exercised with care,

caution and circumspection. The court should bear

in 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.”

14.In Hoffman Andreas case, 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 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 :

12

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“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 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. Witnesses cannot

be expected to face the hardship of appearing in court repeatedly,

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particularly in sensitive cases such as the present one. It can result

in undue hardship for 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 concerned authorities

including the Law Commission and the Bar Council of India.

17. In State (NCT of Delhi) vs. Navjot Sandhu

41

, this Court held:

“167. ………. we do not think that the Court should

dislodge the counsel and go on searching for some

other counsel to the liking of the accused. The right

to legal aid cannot be taken thus far. It is not

demonstrated before us as to how the case was

mishandled by the advocate appointed as amicus

except pointing out stray instances pertaining to

the cross-examination of one or two witnesses. The

very decision relied upon by the learned counsel for

the appellant, namely, Strickland v. Washington

makes it clear that judicial scrutiny of a counsel’s

41

(2005) 11 SCC 600

14

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performance must be careful, deferential and

circumspect as the ground of ineffective assistance

could be easily raised after an adverse verdict at

the trial. It was observed therein:

“Judicial scrutiny of the counsel’s

performance must be highly deferential. It is

all too tempting for a defendant to

second-guess the counsel’s assistance after

conviction or adverse sentence, and it is all

too easy for a court, examining the counsel’s

defence after it has proved unsuccessful, to

conclude that a particular act of omission of

the counsel was unreasonable. Cf. Engle v.

Isaac [456 US 107 (1982) at pp. 133-134). A

fair assessment of attorney performance

requires that every effort be made to

eliminate the distorting effects of hindsight,

to reconstruct the circumstances of the

counsel’s challenged conduct, and to

evaluate the conduct from the counsel’s

perspective at the time. Because of the

difficulties inherent in making the evaluation,

a court must indulge in a strong presumption

that the counsel’s conduct falls within the

wide range of reasonable professional

assistance;.…”

18.It may be proper to recall that the present case is in the

category of cases where the trial is required to be fast tracked. In

fact this Court directed in Shivanna [(2014) 8 SCC 916] as under :

“2. While we propose to consider this matter on

merits after service of notice to the

respondent-accused, we feel acutely concerned as

to why the Union of India should not take initiative

and steps to evolve a procedure for fast-track

justice to be adopted by the investigating agencies

and the Fast Track Courts by proposing

amendments to CrPC for speedy justice to the

victim.

3. Fast Track Courts no doubt are being constituted

for expeditious disposal of cases involving the

charge of rape at the trial stage, but we are

perturbed and anguished to notice that although

there are Fast Track Courts for disposal of such

15

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cases, we do not yet have a fast-track procedure for

dealing with cases of rape and gang rape lodged

under Section 376 IPC with the result that such

heinous offences are repeated incessantly.

4. We are of the considered opinion that there is

pressing need to introduce drastic amendments to

CrPC in the nature of fast-track procedure for Fast

Track Courts and here is an occasion where we

deem it just and appropriate to issue notice and call

upon the Union of India to file its response as to

why it should not take initiative and sincere steps

for introducing necessary amendment into CrPC,

1973 involving trial for the charge of “rape” by

directing that all the witnesses who are examined

in relation to the offence and incident of rape cases

should be straightaway produced before the

Magistrate for recording their statement to be kept

in sealed cover and thereafter the same be treated

as evidence at the stage of trial which may be put

to test by subjecting it to cross-examination. We

are further of the view that the statement of victim

should as far as possible be recorded before the

Judicial Magistrate under Section 164 CrPC skipping

over the recording of statement by the police under

Section 161 CrPC which in any case is inadmissible

except for contradiction so that the statement of

the accused thereafter be recorded under Section

313 CrPC. The accused then can be committed to

the appropriate court for trial whereby the trial

court can straightaway allow cross-examination of

the witnesses whose evidence were recorded

earlier before the Magistrate.

5. What we wish to emphasise is that the recording

of evidence of the victim and other witnesses

multiple times ought to be put to an end which is

the primary reason for delay of the trial. We are of

the view that if the evidence is recorded for the

first time itself before the Judicial Magistrate under

Section 164 CrPC and the same be kept in sealed

cover to be treated as deposition of the witnesses

and hence admissible at the stage of trial with

liberty to the defence to cross-examine them with

further liberty to the accused to lead his defence

witnesses and other evidence with a right to

cross-examination by the prosecution, it can surely

cut short and curtail the protracted trial if it is

introduced at least for trial of rape cases which is

bound to reduce the duration of trial and thus offer

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a speedy remedy by way of a fast-track procedure

to the Fast Track Court to resort to.

6. Considering the consistent recurrence of the

heinous crime of rape and gang rape all over the

country including the metropolitan cities, we are of

the view that it is high time such measures of

reform in CrPC be introduced after due deliberation

and debate by the legal fraternity as also all

concerned. We, therefore, deem it just and

appropriate to issue notice to the Union of India

through the Attorney General which the counsel for

the petitioner is directed to serve by way of dasti

summons. The matter be posted again on 3-9-2013

for further consideration.”

19.In continuation of the above, further order dated 25

th

April,

2014 [(2014) 8 SCC 913] was passed as follows :

“10.1. Upon receipt of information relating to the

commission of offence of rape, the investigating

officer shall make immediate steps to take the

victim to any Metropolitan/preferably Judicial

Magistrate for the purpose of recording her

statement under Section 164 CrPC. A copy of the

statement under Section 164 CrPC should be

handed over to the investigating officer

immediately with a specific direction that the

contents of such statement under Section 164

CrPC should not be disclosed to any person till

charge-sheet/report under Section 173 CrPC is

filed.

10.2. The investigating officer shall as far as

possible take the victim to the nearest Lady

Metropolitan/preferably Lady Judicial Magistrate.

10.3. The investigating officer shall record

specifically the date and the time at which he

learnt about the commission of the offence of rape

and the date and time at which he took the victim

to the Metropolitan/preferably Lady Judicial

Magistrate as aforesaid.

10.4. If there is any delay exceeding 24 hours in

taking the victim to the Magistrate, the

investigating officer should record the reasons for

the same in the case diary and hand over a copy of

the same to the Magistrate.

17

Page 18 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

10.5. Medical examination of the victim: Section

164-A CrPC inserted by Act 25 of 2005 in CrPC

imposes an obligation on the part of investigating

officer to get the victim of the rape immediately

medically examined. A copy of the report of such

medical examination should be immediately

handed over to the Magistrate who records the

statement of the victim under Section 164 CrPC.

11. A copy of this order thus be circulated to all

the Directors General of Police of all the

States/Commissioners of Police in Metropolitan

cities/Commissioners of Police of Union Territories

who are then directed to send a copy of this order

to all the Police Stations-in-Charge in their

States/Union Territories for its compliance in cases

which are registered on or after the receipt of a

copy of these directions. Necessary instructions by

the DGPs/Commissioners of Police be also issued to

all the Police Stations-in-Charge by the

DGPs/Commissioners of Police incorporating the

directions issued by us and recorded

hereinbefore.”

20.In Mir. Mohd. Omar vs. Stateof W.B.

42

after the statement

of the accused under Section 313 was recorded, the public

prosecutor filed an application for his re-examination on the ground

that some more questions are required to be asked. The application

was rejected by the trial court but allowed by the High Court. This

Court disapproved the course adopted and held :

“16. ……….Here again it may be noted that the

prosecution has closed the evidence. The accused

have been examined under Section 313 of the

Code. The prosecution did not at any stage move

the trial Judge for recalling PW 34 for further

examination. In these circumstances, the liberty

reserved to the prosecution to recall PW 34 for

re-examination is undoubtedly uncalled for.”

42

(1989) 4 SCC 436

18

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21. We may also note that the approach to deal with a case of this

nature has to different from other cases. We may refer to the

judgment of this court in Gurmit Singh case, wherein it was

observed:

“8. ………The courts must, while evaluating

evidence, remain alive to the fact that in a case of

rape, no self-respecting woman would come

forward in a court just to make a humiliating

statement against her honour such as is involved in

the commission of rape on her. In cases involving

sexual molestation, supposed considerations which

have no material effect on the veracity of the

prosecution case or even discrepancies in the

statement of the prosecutrix should not, unless the

discrepancies are such which are of fatal nature,

be allowed to throw out an otherwise reliable

prosecution case. The inherent bashfulness of the

females and the tendency to conceal outrage of

sexual aggression are factors which the courts

should not overlook. The testimony of the victim in

such cases is vital and unless there are compelling

reasons which necessitate looking for corroboration

of her statement, the courts should find no

difficulty to act on the testimony of a victim of

sexual assault alone to convict an accused where

her testimony inspires confidence and is found to

be reliable…….”

xxxxx

21. Of late, crime against women in general and

rape in particular is on the increase. It is an irony

that while we are celebrating woman’s rights in all

spheres, we show little or no concern for her

honour. It is a sad reflection on the attitude of

indifference of the society towards the violation of

human dignity of the victims of sex crimes. We

must remember that a rapist not only violates the

victim’s privacy and personal integrity, but

inevitably causes serious psychological as well as

physical harm in the process. Rape is not merely a

physical assault — it is often destructive of the

whole personality of the victim. A murderer

destroys the physical body of his victim, a rapist

degrades the very soul of the helpless female. The

courts, therefore, shoulder a great responsibility

19

Page 20 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

while trying an accused on charges of rape. They

must deal with such cases with utmost

sensitivity….”

22.We may now refer to the orders passed by the trial Court dated

18

th

February, 2015 and the High Court dated 4

th

March, 2015.

Referring to the ground of the earlier counsel not being competent,

the trial court observed that the counsel was of the choice of the

accused. The accused was not facing a criminal trial for the first

time. The cross-examination of witnesses was deferred time and

again to enable the counsel to seek instructions from the accused.

The cross-examination of the prosecutrix was deferred on 15

th

January, 2015 to enable the counsel to have legal interview with the

accused. After part of cross-examination on 16

th

January, 2015,

further cross-examination was concluded on 17

th

January, 2015.

Cross-examination of PW 13 was deferred on the request of the

accused. Similarly, cross-examination of PWs 22, 26 and 27 was

deferred on the request of the defence counsel. After referring to

the record, the trial court observed as under :

“22. The aforesaid proceedings clearly bely the

claim of the accused/applicant that the case has

been proceeding at a “hurried pace” or that he

was not duly represented by a defence counsel of

his choice. The claim of the applicant that he was

unwilling to continue with his earlier counsel is also

nothing but a bundle of lie in as much as the

accused never submitted before the court that he

wants to change his counsel. Rather, it is revealed

from the record that the earlier counsel, Sh. Alok

Kumar was acting as per his instructions and

having legal interview with him. The accused

cannot be permitted to take advantage of his

20

Page 21 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

submissions made on the first date i.e. 13/01/2015

that he wants to engage a new counsel as his

subsequent conduct does not support this

submission. I may also add that before proceeding

with the case further, I had personally asked the

accused in the open court whether he wants to

continue with his counsels and only on getting a

reply in the affirmative, were the proceedings

continued further. It thus appears that the

endeavor of the accused by filing this application is

only to delay the proceedings despite the fact that

all along the trial his request for adjournment have

been duly considered and allowed and he has been

duly represented by a private counsel of his

choice.

23. I am also unable to accept the plea

of the accused that the counsel representing him

earlier was incompetent, being a novice and that

he is entitled to recall all the prosecution witnesses

now that he has engaged a new counsel.

Although, Sh. Alok Kumr Dubey and Sh. Ankit

Bhatia, both have enrolment number of 2014 as

per the Power of Attorney executed by the accused

in their favour, however, to my mind the

competence of a Lawyer is subjective and the date

of his enrolment with the Bar Council can certainly

not be said to be a yardstick to measure his

competence.

24. Moreover, the competence of the

new counsel may again be questioned by another

counsel, who the accused may choose to engage

in future. This fact was also admitted by Sh. D.K.

Mishra during the course of arguments on the

application under consideration.

xxxxxx

27. At this stage, to judge as to whether

certain questions should have been put to the

witnesses in cross examination or should not have

been put to them, would in my view result in

pre-judging as to what are the material portions of

the evidence and would also amount to

re-appraising the entire cross examination

conducted by the earlier counsel to conclude

whether he had done a competent job or not. This

certainly is not within the scope and power of the

court u/s. 311 Cr.P.C. I am supported in my view by

the observations of Hon’ble Delhi High Court in its

21

Page 22 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

order dated 20/02/2008 in case titled as Raminder

Singh vs. State, Criminal MC 8479/2006, where it

has been held as under :

“In the first place, it requires to be noticed that

scope of Section 311 CrPC does not permit a

court to go into the aspect whether material

portions of the evidence on record should have

been put to the witness in cross-examination

to elicit their contradictions. If the court is

required to perform such an exercise every

time an application is filed under

Section 311 then not only would it be

pre-judging what according to it are `material

portions' of the evidence but it would end up

reappraising the entire cross-examination

conducted by a counsel to find out if the

counsel had done a competent job or not. This

certainly is not within the scope of the power

of the trial court under Section 311 CrPC. No

judgment has been pointed out by the learned

Counsel for the petitioner in support of such a

contention. Even on a practical level it would

well nigh be impossible to ensure expeditious

completion of trials if trial courts were

expected to perform such an exercise at the

conclusion of the examination of prosecution

witnesses every time.”

28. It may also be relevant to mention

that Article 22(1) of the Constitution of India

confers a Fundamental Right upon an accused,

who has been arrested by the police to be

defended by a legal practitioner of his choice. This

Fundamental Right has been duly acknowledged

by the Hon’ble Superior Courts in numerous

pronouncements including the case of State of

Madhya Pradesh vs. Shobha Ram and others, AIR

1966 SC 1910 wherein it has been observed as

under:

“Under Art. 22, a person who is arrested for

whatever reason, gets three independent

rights. The first is the right to be told the

reasons for the arrest as soon as an arrest’s

made, the second is the right to be produced

before a Magistrate within 24 hours and the

third is right to be defended by advocate of his

choice. When the Constitution lays down in

absolute terms a right to be defended by one’

own counsel, it cannot be taken away by

22

Page 23 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

ordinary law, and, it is not sufficient to say that

the accused was so deprived, of the right, did

not stand in danger of losing his personal

liberty.”

29. In the case of State vs. Mohd. Afzal

& Ors. 2003 IV AD (Cr.) 205, the Hon’ble Delhi High

Court addressed the issue of Fundamental Right of

the accused to be represented by a counsel from

the point of his arrest especially in a case involving

capital punishment. The case of US Supreme

Court in Strickland vs. Washington 466, U.S. 688

(1984) was cited before the Delhi High Court and

the ld. Counsel for the accused in that case had

argued that the law required a conviction to be set

aside where counsel’s assistance was not provided

or was ineffective. Hon’ble Delhi High Court took

note of the observations in the said case as well as

the Rulings of the Hon’ble Supreme Court in the

case of (1991) 1 SCC 286 Kishore Chand vs. State

of Himachal Pradesh, (1931) 1 SCC 627 Khatri &

Ors. vs. State of Bihar & Ors., (1980) 1 SCC 108

Hussainara Khatoon & Ors. vs. Home Secretary,

State of Bihar, (1983) 3 SCC 307 Rajan Dwivedi vs.

Union of India, (1978) 3 SCC 544 Madhav

Hayawadanrao Hoskot vs. State of Maharashtra

while dealing with this issue. It was however

observed that from hindsight it is easy to pick

wholes in the cross examination conducted but

applying the test in Strickland’s case, it cannot be

said that it was the constructive denial of the

counsels to accused Mohd. Afzal. The observations

of the Hon’ble Delhi High Court were met with the

approval by Hon’ble Supreme Court when the

matter was decided by the Hon’ble Apex Court by

its ruling titled as State vs. Navjot Sandhu & Ors.

AIR 2005 SC 3820.

30. The Hon’ble Apex Court, after

considering the facts of the case, nutshell that

“we do not think that the court should dislodge

the Counsel and go on searching for some other

counsel to the liking of the accused. The right to

legal aid cannot be taken thus far.” While relying

upon the ruling in the case Strickland’s (supra),

the Hon’ble Supreme Court observed that scrutiny

of performance of a counsel who has conducted

trial should be highly deferential.

xxxxx

23

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34. It may be noted that the recall of IO

and prosecutrix has been sought on the ground

besides others, that she has to be questioned as to

why she did not give her sim of her mobile to the

IO and why the IO did not ask her for the same.

Similarly, it has been submitted that the accused

though admitted his potency report but has not

admitted the time and process of the potency test

as stated by the IO and thus the 10 needs to be

recalled. Further, SI Sandeep is required to be

recalled for cross examination in order to cross

examine him with regard to the document given by

the Transporter, who brought the cab in question

from Mathura to Delhi. It may also be mentioned

that in his zest to seek recall of all the prosecution

witnesses, the applicant has also sought recall of

one lady constable Manju, who as per record was

not even examined as a prosecution witness.

35. It is further necessary to mention

that on 04/02/2015 accused had moved an

application u/s 311 Cr.P.C., thereby seeking recall of

prosecutrix PW-2 and PW-23 Ayush Dabas. The

application was dismissed. The present application

has been filed now seeking recall of all PWs,

including PW-2 and PW-23, while the order dated

04/02/2015 still remains unchallenged.

36. The application under consideration

is thus nothing but an attempt to protract the trial

and in fact seek an entire retrial. There is no

change in circumstances except change of

Counsel, which, to my mind, is no ground to allow

the application. Interestingly, in para 17 of the

application, it has been contended that the

present counsel is not aware of the scheme and

design of defence of the previous counsel and is

thus at a loss and disadvantageous position to

defend the accused and for conducting the case as

per his acumen and legal expertise, the recalling

of PWs are necessary. It may be noted that the

defence of an under trial is not expected to vary

from counsel to counsel and irrespective of change

of counsel, an under trial is expected to have a

single and true line of defence which cannot

change every time he changes a counsel. Nor can

a new counsel defend the case of such an under

trial as per the new scheme and design in

accordance with his acumen and legal expertise.”

24

Page 25 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

23.The High Court made a reference to the Criminal Law

Amendment Act, 2013 providing for trial relating to offences under

Section 376 and other specified offences being completed within

two months from the date of filing of the charge sheet. Reference

has also been made to circular issued by the Delhi High Court

drawing the attention of the judicial officers to the mandate of

speedy disposal of session cases. The High Court also referred to

the decisions of this Court in Lt. Col. S.J. Chaudhary vs. State

(Delhi Administration)

43

, State of U.P. vs. Shambhu Nath

Singh

44

, Akil @ Javed vs. State of NCT of Delhi

45

and Vinod

Kumar vs. State of Punjab

46

, requiring the trials to be conducted

on day to day basis keeping in view the mandate of Section 309

Cr.P.C.

24.After rejecting the plea of the accused that there was any

infirmity in the conduct of the trial after detailed reference to the

proceedings, the High Court concluded:

“31. The aforesaid narration of proceedings before

the learned Additional Sessions Judge clearly

reflects that while posting the matter on day to day

basis, the Court’s only endeavour was to comply

with the provisions of Section 309 Cr.P.C. as far as

possible while ensuring the right of the accused to

a fair trial. The earlier counsel had been seeking

adjournment for consulting the petitioner which

was duly granted and under these circumstances

the submission of learned counsel for the petitioner

43

(1984) 1 SCC 722

44

(2001) 4 SCC 667

45

(2013) 7 SCC 125

46

(2015) 1 SCALE 542

25

Page 26 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

that justice hurried is justice buried, deserves

outright rejection.”

25.It was then observed that competence of a counsel was a

subjective matter and plea of incompetence of the counsel could

not be easily accepted. It was observed :

“32. The other submission of learned counsel for

the petitioner that Sh. Alok Dubey, Advocate was

not competent to appear as an Advocate inasmuch

as he had not even undergone screening test as

required by Bar Council of Delhi Rules and was not

issued practice certificate, this submission is not

fortified by any record. Much was said against the

competency of the earlier counsel representing the

petitioner. However, learned standing counsel for

the State was right in submitting that competency

of an Advocate is a subjective issue which should

not have been attacked behind the back of the

concerned Advocate. … … … … …

33. Learned Additional Standing counsel for

the State has furnished details of the number of

questions put by the earlier counsel to the

prosecution witnesses for showing the performance

of the earlier counsel. Moreover, one cannot lose

sight of the fact that the Advocate was appointed

by the petitioner of his own choice.”

26.Inspite of the High Court not having found any fault in the

conduct of the proceedings, it held that “although recalling of all the

prosecution witnesses is not necessary” recall of certain witnesses

was necessary for the reasons given in para 15 (a) to (xx) on the

application of the accused. It was observed that the accused was

in custody and if he adopted delaying tactics it is only he who

would suffer.

26

Page 27 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

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 Cr.P.C. 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 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

27

Page 28 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

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 Cr.P.C. has to be exercised sparingly when there is

patent error or gross injustice in the view taken by a subordinate

court

47

*. 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

47

47

*

Jasbir Singh vs. State of Punjab (2006) 8 SCC 294, prs. 10 to 14

28

Page 29 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

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 back of such counsel;

(iiii)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;

(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;

29

Page 30 Crl. Appeal No…… of 2015 Etc. @ SLP (Crl.) No.1899-1900 of 2015 Etc.

(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.

30.Accordingly, we allow these appeals, set aside the impugned

order passed by the High Court and dismiss the application for

recall.

………… ..……..…………………………….J.

[ JAGDISH SINGH KHEHAR]

………… ..….………………………………..J.

[ ADARSH KUMAR GOEL]

NEW DELHI

SEPTEMBER 10, 2015.

30