CODE

OF
CRIMINAL
PROCEDURE
1973

CASE LAW: A.G. V. Shiv Kumar Yadav and Anr.

SUBMITTED BY SUBMITTED TO
Akshit Sharma Dr. Amrit

Roll No - 185/15

Class – Bcom LLB

Section - D
FACTS OF THE CASE

1. On 6th December, 2014, a First Information Report was lodged alleging that the
respondent accused who was the driver of, hired by the victim on 5th December, 2014 for
returning home from her office committed rape on her.

2. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 8th
December, 2014. After investigation, charge sheet was filed before the Magistrate on 24th
December, 2014. Since the accused was not represented by counsel, he was provided legal
aid counsel. Thereafter on 2nd 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 13th January, 2015.
Prosecution evidence commenced on 15th January, 2015 and was closed on 31st January,
2015. The witnesses were duly cross-examined by the counsel engaged by the accused.

3. Statement of the accused under Section 313 Cr.P.C. was recorded on 3rd February, 2015.
On 4th 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 9th 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 16th February, 2015. The said application was dismissed on 18th February by
the trial court but the same was allowed by the High Court vide impugned order dated 4th
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 to
The Supreme Court.

4. On 10th 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.
ISSUES INVOLVED

1. Power of court to recall a witness for re-examination under section 311 CrPC.
2. If a court does not allow to recall; can a fair trial be ensured?

CONTENTIONS

Attorney General appearing for the State, Shri Colin Gonsalves, learned senior counsel
appearing for the victim.

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 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.
1 2
State of Bihar , State of Punjab vs. Gurmit Singh , State of Karnataka vs.
Shivanna3, Hoffman Andreas vs. Inspector of Customs4.

1
(2013) 14 SCC 461
2 1996 AIR 1393 1996 SCC (2) 384

3
(2014) 8 SCC 913
4
2000 SCC (10) 430
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.

Shri D.K. Mishra, learned counsel appearing for the accused.

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.

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.
HELD

The accused was held guilty under section 376, 366, 323, 506 of IPC and was life imprisoned
as per the judgement of trial court. The accused moved an application for recall of witnesses
under section 311 CrPC which was further rejected by trial court.

The accused moved the application to high court and high court under its impugned power
under article 227 of the constitution of India and section 482 CrPC allowed to recall the
witnesses.

The victim and state then moved to the Supreme court and the court upheld the decision of
the trial court and rejected the application of the accused on the two main grounds ; (i)
changing a lawyer is not enough to use the wide power assigned to the court under section
311 CrPC , (ii) the victim will suffer more if court allows the application to recall the
witnesses. Accordingly Supreme Court allow these appeals, set aside the impugned order
passed by the High Court and dismiss the application for recall.

RATIONALE

In Rajaram case5, 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 :

“In order to appreciate the stand of the appellant it will be worthwhile to refer to Section
311CrPC, 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

5
Rajaram Prasad Yadav v. state of bihar, (2013) 14 SCC 461
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.”6

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

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 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.

6
THE CODE OF CRIMINAL PROCEDURE, 1973. ACT NO. 2 OF 1974 [ 25th January, 1974.]
7
Indian Evidence Act, 1872
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.”

After referring to earlier decisions on the point, the Court culled out following principles to
be borne in mind :

1. Whether the court is right in thinking that the new evidence is needed by it? Whether the
evidence sought to be led in under Section 311 is noted by the court for a just decision of a
case?

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.

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.

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.

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.
6. The wide discretionary power should be exercised judiciously and not arbitrarily.

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.

8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine
the truth and to render a just decision.

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.

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. 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.

12. The additional evidence must not be received as a disguise or to change the nature of the
case against any of the party.

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.

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.”

In Hoffman Andreas case8, 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 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 Shivanna9 as under :

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.

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 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.

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

8
Hoffman Andreas v. Inspector of Customs, Amritsar 2000 SCC (10) 430
9
State of Karnataka v. Shivanna, (2014) 8 SCC 913
which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a
fast-track procedure to the Fast Track Court to resort to.

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 case10, wherein it
was observed:

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.

We may now refer to the orders passed by the trial Court dated 18th February, 2015 and the
High Court dated 4th 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 15th January, 2015 to enable the
counsel to have legal interview with the accused. After part of cross-examination on 16th
January, 2015, further cross-examination was concluded on 17th 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.

Accordingly, court allow these appeals, set aside the impugned order passed by the High
Court and dismiss the application for recall.

10 1996 AIR 1393 1996 SCC (2) 384

(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;

(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.
COMMENT

.Shiv Kumar Yadav, the driver and his lawyer was slammed by the court saying they
were only trying to “embarrass, humiliate and insult” the victim by persuading the trial
court to recall her as a witness.

The court “prima-facie” was of the view that there was no ground to recall the girl to
the court once she had completed her deposition.

“I don’t think you had any relevant question for re-examination you just embarrassed
her for three days when she was called by the trial court for re-examination…except for
humiliating her you did nothing on those days”, a bench of justice J S Khehar and
justice Adarsh Kumar Goel said.”

The conclusion of the High Court is totally as it is the accused alone who stands to
suffer on account of the delay and had told the court that “it is the victim who suffers
the most for having to go through a trial virtually from the beginning all over again”

The accused was involved in delay tactics.” The accused was not a novice to Court. He
was charged with similar offence before. Accused was familiar with court process. He
knows which counsel to engage; gave up legal aid counsel, chose another lawyer”,