AG Vs. Shiv Kumar Yadav & Anr.
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Head Note
The Code of Criminal Procedure, 1973 - Section 311
Rape - Recalling of Witness - Recall of prosecutrix and 13 other witnesses for cross-examination - High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused - No reasons have been recorded in support of this observation - On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed Held that the conclusion appears to be inconsistent with the reasons in the impugned order -Impugned order passed by the High Court liable to be set aside and the application for recall liable to be dismissed.
The Code of Criminal Procedure, 1973 - Section 311
Recall of Witnesses for Cross-examination - Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall - Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily - While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial.
The Code of Criminal Procedure, 1973 - Section 311
Recall of Witnesses for Cross-examination- Disability of Defence Counsel - Held that 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.
Topic(s)-Recalling of Witness - Recalling order set aside