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Gujarat High Court · body

2016 DIGILAW 2167 (GUJ)

MENASHI RAJABHAI KATHAD v. STATE OF GUJARAT

2016-11-11

C.L.SONI

body2016
JUDGMENT : C.L. SONI, J. 1. By the present petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20.12.2012 passed by the learned Additional Sessions Judge, Una. It appears that during the trial of the Sessions Case No. 67 of 2001 (New Sessions Case No. 35 of 2012) for the offences punishable under section 498A, 306 and 304B of the Indian Penal Code, the petitioner – accused made an application at Exh. 196 dated 20.10.2008 seeking recall of the witness No.1 and 3 examined by the prosecution for the purpose of their further cross-examination on the ground that during their cross-examination, some important questions were left to be put to them by inadvertence. Learned Judge rejected such application on the ground that the chief-examination and the cross-examination of these two witnesses were over on 1.3.2007 and 15.3.2007 respectively and it was not stated in the application that for what reason, the defence party – petitioner wanted further cross-examination of the said two witnesses or it was not stated in the application that which questions were required to be put in the cross-examination. Learned Judge has observed that the powers of the Court for such purpose are not unconditional, unbridled or unrestricted and in rarest of the rare case, a witness could be recalled for cross-examination. It appears that such order was challenged before this Court by filing Special Criminal Application No.2657 of 2012. It further appears that by the time the said petition was moved, the petitioner had also moved application Exh. 269 on 18.8.2011 specifying 10 issues on which the petitioner wanted cross-examination of the witnesses by recalling them. As could be seen recorded in the order dated 27.11.2012 in the above referred petition, the petitioner sought permission to withdraw the petition with a view to making appropriate application in connection with the application Exh.269 and the said petition was, thus, disposed of accordingly. It appears that the petitioner moved one more application Exh.306 specifying the very 10 points on which the petitioner wanted cross-examination and requested to recall the said two witnesses. The application Exh. 269 as also the application Exh. 306 were rejected by the learned Judge by the impugned order on the ground that the application Exh. 196 for recall of witnesses was rejected by detailed order and, therefore, subsequent applications Exh.269 and 306 shall not survive. 2. The application Exh. 269 as also the application Exh. 306 were rejected by the learned Judge by the impugned order on the ground that the application Exh. 196 for recall of witnesses was rejected by detailed order and, therefore, subsequent applications Exh.269 and 306 shall not survive. 2. Learned Advocate Mr. Dagli appearing for the petitioner submitted that the right of cross-examination is valuable right available to the accused and such right, if not allowed to be exercised by the accused, the accused suffers great prejudice and injustice as it would take away very right of the accused to defend himself in the criminal case. Mr. Dagli submitted that when the petitioner provided genuine reasons in the original application Exh. 196 and then filed application Exh. 269 specifying 10 questions which the petitioner wanted to put to the witnesses for the prosecution in the cross-examination, the learned Judge ought not to have rejected the request for recalling of the witnesses for further cross-examination. Mr. Dagli submitted that no prejudice would have been caused to the prosecution if the application Exh. 269 for cross-examination of two witnesses on the questions stated in the application Exh. 269 and 306 was allowed. Mr. Dagli submitted that the power under section 311 of the Code of Criminal Procedure, 1973, (the Code”) to recall the witness for cross-examination are always exercised to see that the accused gets full opportunity to defend himself. In support of his submission, learned Advocate Mr. Dagli has relied on the decision in the case of Hoffman Andreas versus Inspector of Customs, Amritsar reported in (2000) 10 SCC 430 as well as the decision of Rajasthan High Court in the case of Ram Swaroop Vishnoi versus State of Rajasthan, reported in 2006 Cri. L.J. 1196. 3. Learned A.P.P. Ms. Thakkar for the respondent – State submitted that the recall of the witness for further cross-examination is not available as a matter of right to any party. Ms. L.J. 1196. 3. Learned A.P.P. Ms. Thakkar for the respondent – State submitted that the recall of the witness for further cross-examination is not available as a matter of right to any party. Ms. Thakkar submitted that the powers to recall the witness under section 311 of the Code for further cross-examination are to be exercised by the Court if the Court, in the facts and circumstances of the case, finds that exercise of such powers is required for just decision but such powers could not be exercised simply because on behalf of the accused, some questions were missed to be asked during the cross-examination of the witness of the prosecution. She submitted that as observed in the order passed by the learned Judge below application Exh. 196, cross-examination of both the witnesses was over in the month of March, 2007 and after the period of about more than one year, the application Exh. 196 was made for recalling witness no.1 and 3 for their further cross-examination. She submitted that five more witnesses were already examined by the prosecution and since no extra-ordinary circumstances were pointed out for recall of the two witnesses, the learned Judge was justified in not entertaining the subsequent applications Exh. 269 and 306, by the impugned order. 4. Having heard the learned advocates for both the sides, it appears that as observed by the learned Judge in order dated 19.6.2012 below Exh. 196 preferred by the petitioner for recalling two witnesses examined by the prosecution, the cross-examination of said witnesses was over in the month of March, 2007. It was then after a period of about more than 1 year and 7 months, the petitioner preferred application Exh. 196 praying to recall the witness no.1 and 3 of the prosecution for their further cross-examination. The ground stated in such application is that during the cross-examination of these two witnesses, some important questions were missed by oversight. Such application came to be rejected by the above said order. As stated above, Special Criminal Application No.2657 of 2012 preferred by the petitioner against the said order below Exh. 196 was sought to be withdrawn by the petitioner with a view to making appropriate application in connection with the application Exh.269. The said petition was, thus, disposed of as withdrawn. The petitioner then preferred application Exh. 306 in connection with the application Exh. 196 was sought to be withdrawn by the petitioner with a view to making appropriate application in connection with the application Exh.269. The said petition was, thus, disposed of as withdrawn. The petitioner then preferred application Exh. 306 in connection with the application Exh. 269 pointing out that in application Exh. 269, the petitioner has sought recall of the witnesses for cross-examination on the points – questions stated therein and if the petitioner is not allowed to cross examine two witnesses, the petitioner would suffer in the matter of his defence in the case. It is required to note that in application Exh. 306, the petitioner himself has stated that after two witnesses were examined, three more witnesses were also examined by the prosecution. 5. The question is whether the recall of the witness for further cross-examination is available as a matter of right or what could be the circumstances for which the powers under section 311 of the Code could be exercised for recall of the witness for the purpose of further cross-examination. 6. In the case on hand, the ground on which recall of the witnesses for their further cross-examination by the petitioner is sought is that by inadvertence, some important questions were left to be put to the witnesses during their cross-examination. 7. The powers of the Court to recall and re-examine any person already examined is found in section 311 of the Code which reads as under: “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 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.” 8. As per the above provision, power to summon material witness or examine person present in attendance though not summoned as a witness or recall and re-examine any person already examined could be exercised at any stage of inquiry or trial or such other proceedings under the Code if it appears to the Court that such examination of the witness including recall and re-examination is essential to the just decision of the case. Thus, though the party to the proceeding is not entitled as a matter of right to ask for recall of the witness for cross-examination, however, when such party approaches the Court to exercise the powers under the above referred provisions, the Court is to be satisfied whether the facts and circumstances of the case would warrant exercise of such power. 9. Thus, the request for recalling of the witnesses for further cross-examination is not to be routinely granted but justifiable reason has to be made out to satisfy the Court that the recalling of the witness for further cross-examination is warranted or has become essential for the just decision of the case. When a party has full opportunity to cross examine the witnesses and availed such opportunity, recall of the witnesses for their further cross-examination at the instance of such party only on the ground that during the cross-examination of the witnesses, certain questions were missed to be put to the witnesses, can not be permitted especially when request for recall is made after long time. 10. The purpose of making the provision under sec. 311 of the Code for recalling the witnesses appears to be for conducting fair trial but the exercise of such powers under sec. 311 of the Code should not be to endlessly continue with the trial. Essential requirement of exercise of powers appears to be to give fair opportunity to the party to exercise the right of defence during the trial. However, if the party has for no convincing reason failed to fully utilize the opportunity available during the trial cannot complain about violation of his right of defence during the trial. As stated above, after the cross-examination of the two witnesses was over in the month of March 2007, for a period of about more than 1 year and 7 month it did not occur to the petitioner that some important questions were left to be asked to the witnesses during their cross-examination. After the cross-examination of two witnesses was over in March, 2007, more three witnesses were also examined and it was thereafter the petitioner made an application for recalling of the two witnesses for further cross-examination. 11. In the case of Hoffman Andreas (supra) relied on by the learned Advocate Mr. After the cross-examination of two witnesses was over in March, 2007, more three witnesses were also examined and it was thereafter the petitioner made an application for recalling of the two witnesses for further cross-examination. 11. In the case of Hoffman Andreas (supra) relied on by the learned Advocate Mr. Dagli, the facts were that 3 witnesses were examined from the prosecution side and they were cross-examined by the counsel engaged by the appellant therein. However, after the stage of cross-examination of those 3 witnesses was over, unfortunately, advocate for the appellant passed away. The appellant then engaged another advocate for defending him in the trial. The new advocate then filed a petition invoking power of the Court under section 311 of the Code for recalling of 3 witnesses for the purpose of further cross-examination and the ground urged by the new advocate was that the advocate who conducted the case of the appellant had died during the pendency of the trial and that it had then transpired that the advocate who conducted the trial was not keeping well and was under some mental pressure and he could not concentrate during the proceedings and as such, he failed to cross-examine the prosecution witnesses on material point. In such fact situation, the Hon’ble Supreme Court has held and observed in paragraph 6 and 7 as under: “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence Counsel midway of the trial. The Counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new Counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new Counsel thought to have the material witnesses further examined, the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. In such circumstances, if the new Counsel thought to have the material witnesses further examined, the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible. 7. We think that the plea of the defence that a further opportunity to put more questions to the three prosecution witnesses can be permitted on account of the unfortunate death of the defence Counsel pendente lite, and a new Counsel has to evolve his defence strategy afresh.” 12. In the case of Ram Swaroop Vishnoi (supra), relied on by the learned Advocate Mr. Dagli, the facts were that the case was fixed before the trial court on 25.4.2005 for prosecution evidence and on that date, one learned Shri Devendra Singh advocate filed Vakilatnama for the petitioner and on that date, the prosecution examined its one witness and said witness was also cross-examined by the advocate for the accused – petitioner who was representing the accused prior to filing of the Vakalatnama of one Shri Devendra Singh. Thereafter, learned Advocate Shri Devendra Singh filed application stating that he was engaged on 25.4.2005 itself on which date, the statement of the prosecution witness was recorded and he was not in a position to go through the record of the case by that date and, therefore, recall of the witness was required for cross-examination by him. In such fact situation, the Rajasthan High Court considered the case of the petitioner therein for recall of the witness for further cross-examination. Such recall of witnesses was in the facts of the said case and not as a matter of rule that whenever recall of the witness of prosecution is asked for further cross-examination, such request is to be accepted. 13. In the case of Natasha Singh versus Central Bureau of Investigation reported in (2013) 5 SCC 741 , the Hon’ble Supreme Court has held and observed in paragraph 8, 15, 16, 20 and 22 as under: “8. 13. In the case of Natasha Singh versus Central Bureau of Investigation reported in (2013) 5 SCC 741 , the Hon’ble Supreme Court has held and observed in paragraph 8, 15, 16, 20 and 22 as under: “8. Section 311, Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311, Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311, Cr.P.C. 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 great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. 16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 Zahira Habibulla H.Shaikh v. State of Gujarat, 2004 (4) SCC 158 ; Zahira Habibullah Shaikh v. State of Gujarat, 2006 (3) SCC 374 ; Kalyani Bhaskar v. M. S. Sampooram, 2007 (2) SCC 258 ; Vijay Kumar v. State of U.P., 2011 (8) SCC 136 and Sudevanand v. State, 2012 (3) SCC 387 20. Undoubtedly, an application filed under Section 311, Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. 22. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311, Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross-examine them.” 14. In the case of State (NCT of Delhi) versus Shiv Kumar Yadav and another reported in (2016) 2 SCC 402 , the Hon’ble Supreme Court has held and observed in para 10,11 to 14, 15, 16,26 and 27 as under: “10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions. 11. 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. 11. 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. 12. In Rajaram case, 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 sec. 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 : “13. .. In order to appreciate the stand of the appellant it will be worthwhile to refer to sec. 311 CrPC, as well as section 138 of the Evidence Act. The same are extracted hereunder: Section 311, Code of Criminal Procedure “311. This Court held such a course to be impermissible, it was observed : “13. .. In order to appreciate the stand of the appellant it will be worthwhile to refer to sec. 311 CrPC, 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 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.” * * * 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 matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in reexamination, the adverse party may further cross-examine upon that matter.” 14. A conspicuous reading of sec. 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. Sec. 138 of the Evidence Act, prescribed the order of examination of a witness in the court. Sec. 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 sec. 311 CrPC and sec. 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 sec. 138, will have to necessarily be in consonance with the prescription contained in sec. 311 CrPC. It is, therefore, imperative that the invocation of sec. 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. 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 reexamination 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.” 13. After referring to earlier decisions on the point, the Court culled out following principles to be borne in mind : “17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under sec. 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under sec. 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. 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under sec. 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. 17.3. 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. 17.4. The exercise of power under sec. 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. 17.5. 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. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. 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. 17.8. The object of sec. 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. 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. 17.10. 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. 17.11. 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. 17.11. 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. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. 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. 17.14. The power under sec. 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.” 14. In Hoffman Andreas case, [ 2000 (10) SCC 430 ] 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 was observed : “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. It was observed : “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross- examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in sec. 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.” 15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination. 16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination. 16. 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. 26. In spite of the High Court not having found any fault in the conduct of the proceedings, it held that “although recalling of all the prosecution witnesses is not necessary” recall of certain witnesses was necessary for the reasons given in para 15 (a) to (xx) on the application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is only he who would suffer. 27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under sec. 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. 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. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” 15. In light of the above, and for reasons stated above, the Court finds that the petitioner cannot be said to have made out any ground to recall two witnesses for prosecution for their further cross-examination. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined.” 15. In light of the above, and for reasons stated above, the Court finds that the petitioner cannot be said to have made out any ground to recall two witnesses for prosecution for their further cross-examination. The issues – questions stated in the applications on which the petitioner desired to put to two witnesses in further cross-examination are not connected to any subsequent development or on finding any important or relevant material which may be helpful in elucidating truth by further cross-examination of the two witnesses of the prosecution. In such view of the matter, the Court finds that no interference is required in the impugned order. The petition is, therefore, rejected. Notice is discharged. Petition dismissed.