Criminal Trial – Penal Code, 1860 – Ss. 147, 148, 149, 452, 302, 307, 436, 323, 332, 353, 427, 114, 201, 120B, 34, 325, 381 & 382 – Criminal P.C. 1973 – S. 482, 311 r/w. 231 (2) – Recall of the Witnesses – the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions and give certain suggestions – Held, It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction. It is noticeable that the High Court has been persuaded by the submission that recalling of witnesses and their cross-examination would not take much time and that apart, the cross-examination could be restricted to certain aspects. In this regard, the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross-examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. This kind of plea in a case of this nature and at this stage could not have been allowed to be entertained.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[Dipak Misra] and [Uday Umesh Lalit] JJ.
August 24, 2016
CRIMINAL APPEAL NOS. 805-806 OF 2016
(@ S.L.P. (Crl.) Nos. 3278-79 of 2016)
State of Haryana …Appellant(s)
Ram Mehar & Others Etc. Etc. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
Present appeals, by special leave, assail the order dated 09.03.2016 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 482 of 2016 and CRM-M No. 484 of 2016 whereby the learned single Judge in exercise of the power under
Section 482 of the Code of Criminal Procedure
(for short “CrPC”) has annulled the order of the learned First Additional Sessions Judge, Gurgaon passed on 16.12.2015 wherein he had rejected the prayer of the accused persons seeking recall of the witnesses under Section 311 read with Section 231(2) CrPC.
2. To appreciate the controversy that has emanated in these appeals, it is obligatory to state the facts in brief. The prosecution case before the trial court is that on 18.07.2012 about 7 p.m. the accused persons being armed with door beams and shockers went upstairs inside M1 room of the Manesar Factory of Maruti Suzuki Limited, smashed the glass walls of the conference room and threw chairs and table tops towards the management officials, surrounded the conference hall from all sides and blocked both the staircases and gave threats of doing away with the lives of the officials present over there. As the allegations of the prosecution further unfurl, the exhortation continued for quite a length of time. All kind of attempts were made to burn alive the officials of the management. During this pandemonium, the entire office was set on fire by the accused persons and the effort by the officials to escape became an exercise in futility as the accused persons had blocked the staircases. The police officials who arrived at the spot to control the situation were assaulted by the workers and they were obstructed from going upstairs to save the officials. Despite the obstruction, the officials were saved by the police and the fire was brought under control by the fire brigade. In the incident where chaos was the sovereign, Mr. Avnish Dev, General Manager, Human Resources of the Company was burnt alive. The said occurrence led to lodging of FIR No. 184/2012 at Police Station Manesar. After completion of the investigation, the police filed charge sheet against 148 workers in respect of various offences before the competent court which, in turn, committed the matter to the court of session and during trial the accused persons were charged for the offences punishable under
Sections 147/ 148/ 149/ 452/ 302/ 307/ 436/ 323/ 332/ 353/ 427/ 114/ 201/ 120B/ 34/ 325/ 381 & 382 IPC.
3. The evidence of the prosecution commenced in August, 2013 and was concluded on 02.03.2015. Recording of statements of the accused persons under Section 313 CrPC was concluded by 13.04.2015. After the statements under Section 313 CrPC were recorded, the defence adduced its evidence by examining number of witnesses. Be it noted, when an application for bail was filed before the trial court and it was rejected upto the High Court, some accused persons moved this Court by filing Special Leave Petition (Criminal) Nos. 9881-9882 of 2013 and this Court on 17.02.2014 passed the following order:-
“On 3.2.2014, this Court had directed learned counsel for the State of Haryana to inform the Court as to how many witnesses, the State proposes to examine and approximately how much time it will take. Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of the State, has informed the Court that as of today, the prosecution wishes to examine total 186 witnesses, out of which 92 are eye-witnesses. However, as presently advised, the prosecution wants to examine only 23 eye witnesses. Two of the eye witnesses have already been examined. Therefore, 21 more eye-witnesses have to be examined. In view of this statement, we do not propose to pass any order on the bail application filed by the petitioner. We feel that it would be appropriate to give directions to the learned Sessions Judge to dispose of the trial as expeditiously as possible. We are informed that in a month, only one or two days are assigned by the learned Sessions Judge to this case. We are aware of the pressure under which the learned Sessions Judge is working. However, considering the peculiar nature of the offence and the number of persons involved in this case, we feel it would be in the interest of justice to expedite examination of eye witnesses and for that to take up the matter on day to day basis, if required. We direct the learned Sessions Judge to examine all the eye-witnesses by 30.4.2014. Needless to say that it will be open to the petitioner to prefer a bail application the after eye-witnesses are examined. We make it clear that on the merits of the petitioner’s case, we have expressed no opinion.”
4. To continue the narrative in chronology, on 13.02.2015, Salil Bihari Lal, PW-8, was recalled for further examination and on 20.02.2015, DSP Om Prakash, PW-99, was recalled. On the same day, the prosecution concluded its evidence. As has been indicated earlier, the statements of the accused persons under Section 313 CrPC were recorded and thereafter the defence examined fifteen witnesses.
5. When the matter stood thus, on 30.11.2015, two petitions under Section 311 CrPC were filed by different accused persons. In the first petition filed by Ram Mehar and others, recall was sought of Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad, PW-5, Salil Bihari Lal, PW-8, Vikram Sarin, PW-10, Deepak Anand, PW-29 and DSP Om Prakash, PW-99. In respect of Deepak Anand, PW-29, it was stated that he was required to be recalled to establish that he is not a reliable witness. As regards Vikram Verma, PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra Prasad, PW-5, Salil Bihari Lal, PW-8 and Vikram Sarin, PW-10, it was averred that they are required to be recalled in order to prove the manner and circumstances pertaining to how the incident took place. That apart, it was stated, certain important questions and suggestions pertaining to the injuries received by the prosecution witness and other persons were also required to be put to them. With regard to DSP Om Prakash, PW-99, it was asserted that recalling of the said witness was required to enable the accused persons to put forth certain aspects of the investigation, particularly with regard to the type of weapons used and injuries allegedly caused to various prosecution witnesses and other persons. We think it appropriate to reproduce what further has been stated in the application:-
“6. That the cross-examination proposed to be undertaken by the defence will be limited to the aspect of injuries sustained by different witnesses and other persons, as well as the weapons of offence used, besides suggestions that specifically refute the sequence of events and roles ascribed to the accused etc.
7. That the accused persons undertake to conclude the cross-examination of these witnesses on the dates on which they appear, or such further dates as decided by this Hon’ble Court.
8. That it may be worthwhile to mention here that due to the nature of the case and the lack of individual representation to the 148 accused persons, much of the cross-examination was composite in nature and in the process, certain important questions and suggestions with respect to their individual roles and allegations, could not be satisfactorily put to the prosecution witnesses in question. 7
9. That the trial was essentially conducted by Sh. R.S. Hooda, Advocate, who was suffering from a critical illness throughout the trial, and on numerous occasions, despite his valiant effort and intentions, the above aspects were inadvertently missed out. The final arguments will now be conducted by a fresh team of Senior Lawyers, who have had occasion to examine the record and are therefore desirous of correcting certain inadvertent errors that may have crept into the defence of the accused.
10. That these aspects are extremely relevant and germane to the defence of the accused, and a denial of opportunity to further cross-examine the witnesses on these aspects would amount to a denial of the right to a fair trial.
11. That vide the present application, the Applicants are not seeking to raise any fresh grounds in defence, but merely correct certain errors committed during cross-examination, and as such this does not amount to the filing up of any lacunae in the defence.”
6. After making such assertions, the petitioners therein proceeded to state the law laid down by this Court in the context of Section 311 CrPC.
7. In the second application filed by Kishan Kumar and others for recalling of witnesses, namely, Shobhit Mittal, PW-7, Rajeev Kaul, PW-14, Sri Niwasan, PW-22 and Umakanta T.S., PW-28, the assertions were almost the same apart from some additional ground which we think appropriate to reproduce:-
“7. That the trial was essentially conducted by Sh. R. S. Hooda, Advocate, who was suffering from a critical illness throughout the trial, and on numerous occasions, despite his valiant efforts and intentions, the above aspects were inadvertently missed out. The final arguments will now be conducted by a fresh team of senior lawyers, who have had occasions to examine the record, and are therefore, desirous of correcting certain inadvertent errors that may have crept into the defence of the accused.
8. That these aspects are extremely relevant and germane to the defence of the accused, and a denial of opportunity to further cross-examine the witnesses on these aspects would amount to a denial of the right to a fair trial.
9. That vide the present application, the Applicants are not seeking to raise any fresh grounds in defence, but merely correct certain errors committed during cross-examination, and as such this does not amount of filing up of any lacuna in the defence.”
8. The learned trial Judge noted the contentions advanced by the learned counsel for the defence and the prosecution and observed that:-
“7. The present application has been moved at a very belated stage at a time when 102 prosecution witnesses have already been examined during this trial in which larger number of 148 accused are involved and they have been examined way back as prosecution evidence was concluded on 2.3.15. Long time was consumed for recording the statements of the accused under section 313 Cr.P.C. and for the last more than six months, the case is being adjourned for recording the defence evidence and in this regard number of opportunities have been availed by the defence and defence witnesses have been examined so far. At this juncture it may be recalled that Hon’ble Supreme Court has directed this court to decide this trial expeditiously.
x x x x x x x
9. Nothing has been explained as to what are the left out questions and how the questions already put to the said witnesses created inroad into the defence of the said accused. In para 3 of the application, it is stated that the manner and circumstances as to how the incident took place and further the questions pertaining to weapons used and the injuries to the said witnesses and to others are certain other questions, which are to be put to them. A perusal of the statements of the aforesaid four witnesses clearly reveal that they have been cross examined at length and there is nothing that defence counsel faltered by not putting relevant questions to them. Putting it differently it is not a case of giving walk over by the defence to the prosecution witnesses by not properly conducting the cross examination. It is rightly argued by learned PP that if the present application is allowed then there will be no end of moving such applications and who knows that another changed defence counsel may come up with similar sort of application stating that the previous defence counsel inadvertently could not put material questions. It may be recalled that the present applicants are in custody but that does not mean that they cannot move the application to delay the trial which has already been delayed considerably. The defence has already availed numerous opportunities. This court in order to ensure the fair trial allowed the successive applications moved by the defence to examine the witnesses to support their respective pleas. An old adage of a fair trial to accused does not mean that this principle is to be applied in favour of accused alone but this concept will take in its fold the fairness of trial to the victim as well as to the society. The court being neutral agency is expected to be fair to both the parties and its duty is also to ensure that the process of law is not abused by either of them for extraneous reasons. The speedy trial is essence of justice but such like applications like the present one should not come in the way of delivery of doing complete and expeditious justice to both the parties.”
9. After so stating, the learned trial Judge referred to the authorities in