Held:- Delay takes a heavy toll on the human memory
apart from breeding cynicism about the efficacy of the judicial system to
decide cases within a reasonably foreseeable time period. To that extent the
apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice
on account of a belated recall, may not be wholly without any basis. Having
said that, we are of the opinion that on a parity of reasoning and looking to
the consequences of denial of opportunity to cross-examine the witnesses, we
would prefer to err in favour of the appellant getting an opportunity rather
than protecting the prosecution against a possible prejudice at his cost.
Fairness of the trial is a virtue that is sacrosanct in our judicial system and
no price is too heavy to protect that virtue. A possible prejudice to
prosecution is not even a price, leave alone one that would justify denial of a
fair opportunity to the accused to defend himself.
N THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL
NOS. 874-875 OF 2012
(Arising out of
S.L.P (Crl.) Nos.4286-87 OF 2011)
T.S. THAKUR
AND GYAN SUDHA MISRA, JJ. On July 2, 2012
J U D G M E N
T
T.S. THAKUR, J.
1. Leave granted.
2. These appeals arise out of an
order dated 29th March, 2011, passed by the High Court of Judicature for
Andhra Pradesh whereby Criminal Revision Petitions No.534 and 710 of 2011 filed
by the appellant have been dismissed and order dated 22ndJanuary, 2011 passed
by the Special Judge for CBI cases at Hyderabad in Crl. M.P. Nos.18 and 19 of
2011 upheld.
3. The appellant is being prosecuted
for offences punishable under Sections 7 & 13 (1) read with Section
13(1)(D) of Prevention of Corruption Act, 1988, before the Special Judge for
CBI cases at Hyderabad. Around the time the prosecution concluded its evidence,
the appellant filed Crl. Misc. Petitions No.18 and 19 of 2011 under Sections
242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for
cross-examination. The appellant’s case in the said Criminal Misc. Petition
No.18 of 2011 was that cross-examination of PWs 1 and 2 had been deferred till
such time the Trap Laying Officer (PW 11) was examined by the prosecution and
since the said officer had been examined, PWs 1 and 2 need be recalled for
crossexamination by counsel for the accused-appellant. In Crl. Misc. Petition
No.19 of 2011 the petitioner made a prayer for deferring the cross-examination
of Investigating Officer (PW12) in the case till such time PWs 1 and 2 were
crossexamined.
4. Both the applications mentioned
above were opposed by the prosecution resulting in the dismissal of the said
applications by the Trial Court in terms of its order dated 22nd January,
2011. The Trial Court observed:
“For what ever be the reasons the
cross-examination of PWs 1 and 2 has been recorded as “nil”. There is nothing
to show on the record that the petitioner had reserved his right to cross
examine the witnesses at a later point of time. The dockets of the Court do not
reflect any such intention of the petitioner.”
5. The Trial Court also held that
recall of PWs 1 and 2 for cross-examination more than 3 and ½ years after they
had been examined in relation to an incident that had taken place 7 years back,
was bound to cause prejudice to the prosecution. The Trial Court was of the
view that the appellant had adopted a casual and easy approach towards the
trial procedure and that he could not ask for the recall of any witness without
cogent reasons.
6. Aggrieved by the order passed by
the Trial Court the appellant filed two revision petitions before the High
Court which, as noticed earlier, have been dismissed by the High Court in terms
of the order impugned in these appeals. The High Court took the view that PWs 1
and 2 had been examined on 13th June, 2008 and 31st July, 2008 respectively followed by
examination of nearly one dozen prosecution witnesses. The High Court held that
since this was an old case of the year 2005 and the matter was now coming up
for examination of the appellant-accused under Section 313 Cr.P.C., there was
no justification for recall of the prosecution witnesses No.1 and 2. The
revision petitions were accordingly dismissed.
7. Appearing for the appellant Mr.
A.T.M Ranga Ramanujan, learned senior counsel, contended that the Trial Court
as also the High Court had taken a hyper technical view of the matter without
appreciating that grave prejudice will be caused to the appellant if the prayer
for cross-examination of PWs. 1 and 2 was not granted and the recall of the
witnesses for that purpose declined. He submitted that counsel for the
appellant before the Trial Court was under a bona fide belief that the
crossexamination of the prosecution witnesses PWs. 1 and 2, who happened to be
the star witnesses, one of them being the complainant and the other a witness
who allegedly heard the conversation and observed the passing of the bribe to
the accused could be conducted after PW-11 had been examined. It was contended
that the lawyer appearing before the Trial Court had also filed a personal
affidavit stating that PWs. 1 and 2 had not been crossexamined by him under a bona
fide impression that he could do so after the evidence of the Trap Laying
Officer (PW-11) had been recorded. Mr. Ramanujan urged that while the lawyer
may have committed a mistake in presuming that the prosecution witnesses No. 1
and 2 could be recalled for cross-examination at a later stage without the
Trial Court granting to the accused the liberty to do so, such a mistake should
not vitiate the trial by denying to the appellant a fair opportunity to
cross-examine the said witnesses. Heavy reliance was placed by learned counsel
on the decision of this Court in Rajendra
Prasad Vs. Narcotic Cell [1999 SCC (Cri) 1062], in support of his submission that no party to a trial can be
denied the opportunity to correct errors if any committed by it. If proper evidence
was not adduced or the relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting such a mistake to
be rectified.
8. Appearing for the respondent Mr.
H.P. Rawal, learned Additional Solicitor General, contended that while
crossexamination of PWs. 1 and 2 could be deferred at the option of the accused
to a later stage, the Court record does not show any such request having been
made or any liberty being reserved to the accused. It was, according to Mr.
Rawal, a case where an opportunity to cross-examine had been given to the
accused and his counsel but they had chosen not to avail of the same, in which
case a belated request for recall of the witnesses to exercise the right to
cross-examine could and has been rightly rejected by the Trial Court and that
rejection affirmed by the High Court. It was also submitted that the recall of
the prosecution witnesses, who have gone without cross-examination at an
earlier stage, is likely to prejudice the prosecution inasmuch as the incident
in question is as old as of the year 2005, while the request for recall was
made only in the year 2011, nearly four years after the framing of the charges
against the appellant.
9. The appellant who was working as
Sub Divisional Officer in the B.S.N.L., Karimnagar, is accused of having
demanded and received a bribe of Rs.3,000/- from the complainant who was
examined as PW1 at the trial. The trap led by the CBI in which PW2 was
associated as an independent witness is said to have succeeded in catching the
petitioner red-handed with the bribe money eventually leading to the filing of
a charge-sheet against him before the Court of Special Judge for CBI cases at
Hyderabad in March, 2005. Charges were framed against the petitioner on 7th December,
2006. While PW1, the complainant in the case, was examined on two different
dates i.e. 3rd March, 2008 and 13th June, 2008, prosecution witness No.2
was similarly examined on 18th July, 2008 and 31st July, 2008. It is common ground that
both the witnesses have stood by the prosecution case for they have not been
declared hostile by the prosecution. This implies that the depositions of the
two witnesses are incriminating against the appellant and in the absence of any
cross-examination their version may be taken to have remained unchallenged. It
is also common ground that PWs. 3 to 11 were examined during the period 31st July,
2008 and 28th December, 2011. The Trap Laying Officer (PW 11) was examined
on 18thFebruary, 2010 and on 1st April, 2010. The two applications
referred to earlier were filed before the Trial Court at that stage, one asking
for recall of PWs. 1 & 2 for crossexamination and the other asking for a
deferring that the cross-examination of PW 12 till PWs. 1 and 2 are recalled and
cross-examined.
10. The only question that arises in
the above backdrop is whether the decision not to cross-examine PWs 1 and 2 was
for the reasons stated by the petitioner or for any other reason. There is no
dispute that no formal application was filed by the petitioner nor even an oral
prayer made before the Trial Court to the effect that the exercise of the right
to cross-examine the two witnesses was being reserved till such time the Trap
Laying Officer was examined. This is precisely where counsel for the appellant
has stepped in and filed a personal affidavit in which he has stated that even
though there is no formal prayer made to that effect he intended to
cross-examine the two witnesses only after the deposition of the Trap Laying
Officer was recorded. In the peculiar circumstances of the case, we feel that
the version given by the counsel may indeed be the true reason why two
witnesses were not crossexamined on the conclusion of their
examination-in-chief. We say so primarily because no lawyer worth his salt
especially one who had sufficient experience at the Bar like the one appearing
for the appellant would have let the opportunity to cross-examine go unavailed
in a case where the witnesses had supported the prosecution version not only in
regard to the demand of bribe but also its payment and the success of the trap
laid for that purpose. There is no gainsaying that every prosecution witness
need not be cross-examined by the defence. It all depends upon the nature of
the deposition and whether the defence disputes the fact sought to be
established thereby. Formal witnesses are not at times cross-examined if the
defence does not dispute what is sought to be established by reference to
his/her deposition. The decision to cross-examine is generally guided by the
nature of the depositions and whether it incriminates the accused. In a case
like the one at hand where the complainant examined as PW1 and the shadow
witness examined as PW2 had clearly indicted the appellant and supported the
prosecution version not only regarding demand of the bribe but also its receipt
by the appellant there was no question of the defence not crossexamining them.
The two witnesses doubtless provided the very basis of the case against the
appellant and should their testimony have remained unchallenged, there was
nothing much for the appellant to argue at the hearing. The depositions would
then be taken to have been accepted as true hence relied upon. We may, in this
connection, refer to the following passage from the decision of this Court in Sarwan Singh v. State of Punjab (2003) 1 SCC 240:
“It is a rule of essential
justice that whenever the opponent has declined to avail himself of the
opportunity to put his case in cross-examination it must follow that the
evidence tendered on that issue ought to be accepted.”
11. We are, therefore, inclined to
believe that the two prosecution witnesses were not cross-examined by the
counsel for the appellant not because there was nothing incriminating in their
testimony against the appellant but because counsel for the appellant had
indeed intended to cross-examine them after the Trap Laying Officer had been
examined. The fact that the appellant did not make a formal application to this
effect nor even an oral prayer to the Court to that effect at the time the
cross-examination was deferred may be a mistake which could be avoided and
which may have saved the appellant a lot of trouble in getting the witnesses
recalled. But merely because a mistake was committed, should not result in the
accused suffering a penalty totally disproportionate to the gravity of the
error committed by his lawyer. Denial of an opportunity to recall the witnesses
for cross-examination would amount to condemning the appellant without giving
him the opportunity to challenge the correctness of the version and the
credibility of the witnesses. It is trite that the credibility of witnesses
whether in a civil or criminal case can be tested only when the testimony is
put through the fire of cross-examination. Denial of an opportunity to do so
will result in a serious miscarriage of justice in the present case keeping in
view the serious consequences that will follow any such denial.
12. The nature and extent of the
power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was
examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors. (2008) 15
SCC 652. This Court held that the object underlying Section 311 was
to prevent failure of justice on account of a mistake of either party to bring
on record valuable evidence or leaving an ambiguity in the statements of the
witnesses. This Court observed:
“This is a supplementary provision
enabling, and in certain circumstances imposing on the Court, the duty of
examining a material witness who would not be otherwise brought before it. It
is couched in the widest possible terms and calls for no limitation, either
with regard to the stage at which the powers of the Court should be exercised,
or with regard to the manner in which it should be exercised. It is not only
the prerogative but also the plain duty of a Court to examine such of those
witnesses as it considers absolutely necessary for doing justice between the
State and the subject. There is a duty cast upon the Court to arrive at the
truth by all lawful means and one of such means is the examination of witnesses
of its own accord when for certain obvious reasons either party is not prepared
to call witnesses who are known to be in a position to speak important relevant
facts.
The object underlying Section 311 o
f the Code is that there may not be failure o f justice on account o f mistake
o f either party in bringing the valuable evidence on record or leaving
ambiguity in the statements o f the witnesses examined from either side. The
determinative factor is whether it is essentia l to the just decision o f the
case . The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of the Court to
summon a witness under the Section merely because the evidence supports the
case of the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquires and trials under the Code
and empowers the Magistrate to issue summons to any witness at any stage of such
proceedings, trial or enquiry. In Section 311 the significant expression that
occurs is "at any stage o f inquiry or tria l or other proceeding under
this Code". It is, however, to be borne in mind that whereas the section
confers a very wide power on the Court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.”
(emphasis supplied)
13. Grant of fairest opportunity to
the accused to prove his innocence was the object of every fair trial, observed
this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10
SCC 430. The following passage is in this regard apposite:
“In such circumstances, if the
new Counsel thought to have the material witnesses further examined,the
Court could adopt latitude and a libera l view in the interest o f justice,
particularly when the Court has unbridled powers in the matter as enshrined in
Section 311 o f the Code. After al l the tria l is basically for the prisoners
and courts should afford the opportunity to them in the fairest manner possible .”
(emphasis supplied)
14. The extent and the scope of the
power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. Union of India & Anr. 1991 Supp
(1) 271, where this Court observed:
“The principle of law that emerges
from the views expressed by this Court in the above decisions is that the crimina l court has ample power to summon any person as
a witness or recal l and re-examine any such person even i f the evidence on
both sides is closed and the jurisdiction o f the court must obviously be
dictated by exigency o f the situation, and fair-play and good sense appear to
be the only safe guides and that only the requirements o f justice command and
examination o f any person which would depend on the facts and circumstances o
f each case. ”
(emphasis supplied)
15. Discovery of the truth is the
essential purpose of any trial or enquiry, observed a three-Judge Bench of this
Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de
Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the
following words:
“What people expect is that the
Court should discharge its obligation to find out where in fact the truth lies.
Right from inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the main purposes
underlying the existence of the courts of justice.”
16. We are conscious of the fact
that recall of the witnesses is being directed nearly four years after they
were examined in chief about an incident that is nearly seven years old. Delay
takes a heavy toll on the human memory apart from breeding cynicism about the
efficacy of the judicial system to decide cases within a reasonably foreseeable
time period. To that extent the apprehension expressed by Mr. Rawal, that the
prosecution may suffer prejudice on account of a belated recall, may not be
wholly without any basis. Having said that, we are of the opinion that on a
parity of reasoning and looking to the consequences of denial of opportunity to
cross-examine the witnesses, we would prefer to err in favour of the appellant
getting an opportunity rather than protecting the prosecution against a
possible prejudice at his cost. Fairness of the trial is a virtue that is
sacrosanct in our judicial system and no price is too heavy to protect that
virtue. A possible prejudice to prosecution is not even a price, leave alone
one that would justify denial of a fair opportunity to the accused to defend
himself.
17. In the result, we allow these
appeals, set aside the orders passed by the Trial Court as also the High Court
and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial
Court and an opportunity to crossexamine the said witnesses afforded to the
appellant. In fairness to the counsel for the appellant, we must record that he
assured us that given an opportunity to examine the witnesses the needful shall
be done on two dates of hearing, one each for each witness without causing any
unnecessary delay or procrastination. The Trial Court shall endeavour to
conclude the examination of the two witnesses expeditiously and without
unnecessary delay. The parties shall appear before the Trial Court on 6th August,
2012.
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