Duty Of Public Prosecutors To Ensure Fair Trial: Supreme Court Orders Recall Of Witness Examined Without Accused Or Counsel Present
The Supreme Court has held that it is the duty of public prosecutors to ensure that trials are conducted fairly, while ordering the recall of a prosecution witness who was examined without the accused or his counsel physically present and whose witness recall application was opposed by a state counsel on account of delay.
The Court was hearing a Special Leave Petition against an Order of the Allahabad High Court that had upheld the Trial Court's refusal to allow an application to re-examine a prosecution witness, after the Trial Court held an examination-in-chief while the accused was present only through video conferencing, on account of Covid-19 pandemic restrictions, and had no counsel present in Court.
A two-Judge Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih held, "This was a case where there was a clear prejudice to the appellant as the evidence of PW-1 [the victim's father] was recorded in absence of his advocate. Therefore, the Trial Court ought to have allowed the application. Even the public prosecutor ought to have taken a fair stand and should not have objected to the said application. It is the duty of the public prosecutor to ensure that the trial is conducted in a fair manner."
"This is a case which indicates how the system operates and trials are delayed," the Bench observed, after noting from the facts that "the Trial Judge could not have recorded the evidence of PW1 in absence of the appellant and his advocate."
Advocate Abdul Qadir Abbasi appeared for the Petitioner and Advocate Ruchira Goel appeared for the Respondent-State.
Allowing the appeal, the Apex Court said, "The result of all this is that now in December, 2024, PW1 will have to be recalled for cross-examination. This order we are passing one year and six months after the appellant applied for recall."
The Court directed the Trial Court to recall the victim's father for cross-examination by the Advocate for the accused. "Necessary summons be issued by the learned Trial Court to the second respondent to appear for undergoing cross-examination on the date fixed by the Trial Court," the Court said.During the course of the proceedings before the Trial Court, the father of the minor victim was examined in absence of the accused and his counsel as due to the then ongoing Covid-19 pandemic "it was difficult for them to attend the Court," as the High Court notes, adding that "the accused-applicant was in jail and at that time accused persons were not being produced before the trial court from the jail."
Five months later, the Trial Court closed the opportunity of cross-examination of the accused-applicant to the father of the victim. Then, after about one year and five months, the accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) for recall of the said prosecution witness.
Section 311 of the CrPC allows a Court to recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding, if their evidence appears to be essential to the just decision of the case.
This application was opposed by the State's counsel contending that it was moved after an inordinate delay with a view to linger on the proceedings. The High Court, accepting the State's submission on delay, concluded, "The applicant had ample opportunity to move an application under Section 311 Cr.P.C. within reasonable time but the application under Section 311 Cr.P.C. was moved by the applicant after inordinate delay."
The High Court, noticing the Order sheet from the day of the examination notes the presence of the accused through video conferencing, said, "it is wrong to say that statement of PW-1 was not recorded in presence of the applicant." (PW-1 being the victim's father). According to the said Order sheet, the accused was present virtually, but his counsel was not present either physically or virtually, the High Court noted.
"The presumption, observations and findings recorded by the trial Court in rejecting the application under Section 311 Cr.P.C. are fully sustainable. The trial Court has committed no illegality in rejecting the application of the applicant. There appears no abuse of the process of the Court also because no plausible explanation of inordinate delay in moving application under Section 311 Cr.P.C. has been given by the applicant." the High Court stated while disposing of the petition of the accused under Section 482 of the CrPC.
Even as the High Court recognised the wording of Section 311 as being wide, allowing for the re-examination of witnesses at any time, it did not allow the application for recall. The Court said, "The very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way".
"However, very width requires corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by the Court to fill up lacuna unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power", the High Court reasoned.
Cause Title: Nadeem v. State of Uttar Pradesh & Ors. [Special Leave to Appeal (Crl.) No.6182/2024
Appearance:
Petitioner: Advocates Abdul Qadir Abbasi, Maaz Rehman Khan and Aaraf Khan
Respondents: Advocate Ruchira Goel