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2022 DIGILAW 92 (ALL)

Ram Nayak Singh v. State of Up Thru. Secy. Home

2022-01-24

SAURABH LAVANIA

body2022
JUDGMENT : SAURABH LAVANIA, J. 1. Heard learned counsel for the applicant as also Sri Anurag Verma, learned AGA for the State. 2. By means of present application under Section 482 Cr.P.C., a challenge has been made to the order dated 07.01.2022 passed by Special Judge (M.P./M.L.A. Court)/Additional Sessions Judge (Court. No. 07), Sultanpur in Sessions Trial No. 312 of 2008 (State v. Ram Nayak Singh & others), under Sections-147, 323, 427, 452, 506, 395, 394 IPC, P.S.-Jaisinghpur, District-Sultanpur, whereby, the Application No. 188 Kha preferred by the applicant under Section 311 Cr.P.C. for recalling of witnesses i.e. PW-1/Ram Newal Tiwari and PW-7/Smt. Kiran Tiwari has been rejected. 3. By the order dated 07.01.2022, in issue, an application No. 185 Kha preferred by complainant/PW-1-Ram Newal Tiwari under Section 319 Cr.P.C. for summoning two police officials namely Pradeep Singh and Ranvir Singh was also rejected but this part of the order is not in issue. 4. It transpires from record that respondent No. 2/Ram Newal Tiwari (PW-1) preferred an application under Section 156(3) Cr.P.C. before the competent Court of jurisdiction, whereupon, the Additional Chief Judicial Magistrate, Court No. 22, Sultanpur passed the order dated 23.06.2003 and in compliance thereof, a Complaint Case was registered against the applicant and others. Considering the offence against the applicant and others, the case was subsequently registered as Sessions Trial No. 312 of 2008 (State v. Ram Nayak Singh & others), which at present is pending before the Special Judge (M.P./M.L.A. Court)/Additional Sessions Judge (Court. No. 07), Sultanpur. In the Sessions Trial, the charges were framed on 04.11.2008 and thereafter, the respondent No. 2/Ram Newal Tiwari (PW-1) was examined and his examination was concluded on 27.01.2009. Thereafter, other witnesses of the prosecution were examined. The examination of last witness of fact i.e. PW-7/Smt. Kiran Tiwari was concluded on 18.11.2021. Thereafter, as per spirit of Section 313 Cr.P.C., the case was fixed for evidence of defence meaning thereby that it was fixed for examination of accused as also the defence witnesses, if any. On 24.11.2021, the statements of accused under Section 313 Cr.P.C. were recorded. Thereafter, an application dated 03.01.2022, wrongly mentioned as "03.01.2021", under Section 311 Cr.P.C. was moved by the new counsel engaged by the accused-applicant, which has been rejected by the order impugned in the present application. 5. On 24.11.2021, the statements of accused under Section 313 Cr.P.C. were recorded. Thereafter, an application dated 03.01.2022, wrongly mentioned as "03.01.2021", under Section 311 Cr.P.C. was moved by the new counsel engaged by the accused-applicant, which has been rejected by the order impugned in the present application. 5. Assailing the order dated 07.01.2022, learned counsel for the applicant submitted that in the application for recall of witness, the reasons for recalling of witnesses have been indicated, however, without considering the same, the Trial Court in mechanical manner rejected the application for recall of witness preferred under Section 311 Cr.P.C. The reasons recorded in the impugned order for rejecting the application are not cogent. He submitted that no doubt the examination of PW-1 was concluded on 27.01.2009, wrongly mentioned as "27.06.2009", however, the examination of PW-7 was concluded on 18.11.2021 and after considering the statements of PW-1 and PW-7 while preparing the case for arguments, it appeared to the counsel concerned that there are contradictions in the statements, as such, taking note of the same, the application for recall of witnesses under Section 311 Cr.P.C. was preferred, as such, there is no delay in moving the application and considering the same, the Trial Court ought to have allowed the application in issue, however, the same has been rejected. 6. It is also stated that for the purposes of fair Trial and to meet out the ends of substantial justice, the applicant is entitled to recall of witness for cross-examination on certain points as indicated in the application dated 03.01.2022 preferred by the applicant. He also submitted that the applicant is ready to deposit entire costs in relation to the witnesses aforesaid, if the present application is allowed and the applicant is permitted to cross-examine the said witnesses. 7. In support of his submissions, learned counsel for the applicant placed reliance on the judgments passed in the case of Manju Devi v. State of Rajasthan passed in Criminal Appeal No. 688 of 2019 reported in (2019) 6 SCC 203 and Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256: 2013 SCC OnLine SC 577. 8. The relevant paras, referred, of the judgment in the case of Manju Devi (supra) are as under:- "9. Section 311 CrPC reads as under: “311. 8. The relevant paras, referred, of the judgment in the case of Manju Devi (supra) are as under:- "9. Section 311 CrPC 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.” 10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] . In [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 74849, paras 8 &15) “8. In [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 74849, paras 8 &15) “8. Section 311 CrPC 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 CrPC, 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, CrPC 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 CrPC 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 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 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.” (emphasis in original) 11. The indisputable fact situation of the case remains that the daughter of the appellant died an unnatural death on 14-1-2010 in Nigeria, where she was living with her husband (Respondent 2), who is standing the trial for the offences under Sections 302, 304-B and 498-A IPC. The first post-mortem of the dead body of the daughter of the appellant was carried out on 16-1-2010 in Aminu Kanu Teaching Hospital, Nigeria by the said Dr I. Yusuf. A copy of the post-mortem report prepared by the said doctor in Nigeria has, of course, been placed on record wherein, the cause of death is stated as “asphyxia secondary to strangulation”. Though the dead body of the daughter of the appellant was brought to India on 29-1-2010 and Medical Board was constituted for conducting the post-mortem but then, the Board found that no definite opinion could be given regarding the time and cause of death. The investigating agency, for the reasons best known to it, did not cite the said doctor, who conducted the first post-mortem in Nigeria as a witness. The investigating agency, for the reasons best known to it, did not cite the said doctor, who conducted the first post-mortem in Nigeria as a witness. It is also not the case on behalf of the accused that the copy of the post-mortem report dated 16-1-2010 prepared in Nigeria was not disputed and/or he would not be seeking to cross-examine the said doctor, if he is examined as a witness in this matter. In the given set of facts and circumstances, evident it is that the testimony of the said doctor who conducted the first post-mortem in Nigeria is germane to the questions involved in this matter; and for a just decision of the case with adequate opportunity to both the parties to put forward their case, the application under Section 311 CrPC ought to have been allowed. 12. The peculiar facts and circumstances of the case have either been ignored or have been cursorily dealt by the trial court with the observations that the effect of non-availability of the original post-mortem report would be considered at the time of the final disposal of the matter. In fact, the principal reason weighing with the trial court in declining the prayer for examination of the said witness had been that the case was pending since the year 2010. The High Court, on the other hand, chose not to exercise its powers under Section 482 CrPC, with the only observation that the discretion so exercised by the trial court was not to be interfered with. 13. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness." 10. Per contra, learned AGA Sri Anurag Verma, on the basis of material available on record, opposed the prayer, as sought in the present application. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness." 10. Per contra, learned AGA Sri Anurag Verma, on the basis of material available on record, opposed the prayer, as sought in the present application. He submitted that the Trial Court has rightly rejected the application preferred by the applicant under Section 311 Cr.P.C. Elaborating his arguments, learned AGA Sri Verma submitted that the Trial Court rejected the application after considering the facts indicated in the application in issue. In this regard, he drawn attention of this Court on the reasons indicated in the order impugned, which on reproduction reads as under:- 11. Based upon the reasons indicated in the order impugned, Sri Verma submitted that it appears from the impugned order itself that there is a discretion of the Hon'ble Supreme Court to conclude the proceedings of the Trial expeditiously and PW-1 and PW-7, in relation to whom the application in issue was presented by the applicant, were extensively cross-examined by the accused, as such, there is no requirement of interference in the present case. 12. Sri Verma also submitted that it is evident from the impugned order that the Trial Court after considering the contents of application observed that during cross-examination, questions related to civil cases and presence of accused at the place of crime were not put to PW-1 and in cross-examination, the questions related to civil cases were put to PW-7. He stated that it reflects from a bare perusal of the impugned order that the reasons indicated in the application were duly taken note of by the Trial Court. 13. He further stated that the application was moved just to delay the trial and defeat the ends of justice. In continuation, it is stated that initially the case was instituted in the year 2003 by moving an application under Section 156(3) Cr.P.C. and on an order dated 23.06.2003, the case was registered as complaint case and subsequently the same was registered as Session Trial in the year 2008 as Session Trial No. 312 of 2008. Thus, the Sessions Trial is pending before the Trial Court for more than 13 years and if the date is taken from the date of institution of case under Section 156(3) Cr.P.C., it is pending for more than 18 years. Thus, the Sessions Trial is pending before the Trial Court for more than 13 years and if the date is taken from the date of institution of case under Section 156(3) Cr.P.C., it is pending for more than 18 years. This aspect is also required to be taken note of in considering the present application. 14. It is also stated that in the present case, the application in issue was preferred by the counsel subsequently engaged by the accused, as such also the application is after thought and it is just to delay the conclusion of Trial which has to be concluded expeditiously in terms of the judgment of the Hon'ble Supreme Court, and being so, the order of Trial Court is just and proper. 15. He on the basis of the order impugned dated 07.01.2022 also submitted that it appears that the application in issue as also the application under Section 319 Cr.P.C. were moved in collusion as one of the parties to the proceedings is an ex-MLA and the Trial Court while rejecting the application did not mention it as a ground of rejection of the application but the said fact has been indicated in the order dated 07.01.2022 passed on the application under Section 319 Cr.P.C., which is on record. 16. He also stated that after considering the contents of the application in issue, the Trial Court in the impugned order has observed that PW-1 and PW-7 were duly cross-examined by the accused and also considered the law on the issue and after due consideration of facts and law, passed the order impugned dated 07.01.2022. He submitted that in these circumstances, no indulgence is required by this Court in the matter. 17. Sri Verma also stated that the present application in issue for recall of witnesses was preferred after conclusion of proceedings under Section 313 Cr.P.C., as such also, the present application was liable to be rejected and accordingly, the order of the Trial Court is not liable to be interfered with by this Court. 18. In support of his submissions, Sri Verma also placed reliance on the judgment on which the reliance has been placed by the learned counsel for the applicant, which is the judgment passed by the Apex Court in the case of Rajaram Prasad Yadav (Supra). Relevant paras read as under:- "17. 18. In support of his submissions, Sri Verma also placed reliance on the judgment on which the reliance has been placed by the learned counsel for the applicant, which is the judgment passed by the Apex Court in the case of Rajaram Prasad Yadav (Supra). Relevant paras read as under:- "17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: 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 Section 311 is noted by the court for a just decision of a case? 17.2. 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. 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 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. 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 Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. 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 Section 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. 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 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. 17.14. 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." 19. Sri Verma also placed reliance on the following observations of the Hon'ble Supreme Court in the case of Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828 : 2013 SCC OnLine SC 444. "In Mir Mohd. Omar & Ors. v. State of West Bengal, AIR 1989 SC 1785 , this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C., in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for." 20. Sri Verma further placed reliance on a judgment passed by the Hon'ble Supreme Court in the case of State of Haryana v. Ram Mehar and others reported in (2016) 8 SCC 762 , wherein, the Apex Court considered the concept of fair Trial as also the issue involved in the present case. 21. At this stage, it would be appropriate to point out that in the case of Ram Mehar (supra), the accused, after conclusion of proceedings under Section 313 Cr.P.C., preferred two application(s) for recall of prosecution witnesses. The Hon'ble Supreme Court after due consideration of concept of "Fair Trial" as also the power of Trial Court in relation to recalling of witness as provided under Section 311 Cr.P.C., interfered in the order of High Court and restored the order of the Trial Court, whereby, the application for recall of witness under Section 311 Cr.P.C. was rejected. The relevant paras on reproduction reads as under:- "18. The relevant paras on reproduction reads as under:- "18. Before we advert to the ambit and scope of Section 311 CrPC and its attractability to the existing factual matrix, we think it imperative to dwell upon the concept of “fair trial”. There is no denial of the fact that fair trial is an insegregable facet of Article 21 of the Constitution. This Court on numerous occasions has emphasised on the fundamental conception of fair trial as the majesty of law so commands. 19. A three-Judge Bench speaking through Krishna Iyer, J. in [Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167 : 1979 SCC (Cri) 934] , though in a different context, observed : (SCC p. 169, para 2) “2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” The aforesaid principle has been stated in the context of transfer of a case but the Court has laid emphasis on assurance of fair trial. It is worthy to note that in the said case, the Court declined to transfer the case and directed the Magistrate to take measures to enforce conditions where the court functions free and fair and agitational or muscle tactics yield no dividends. However, liberty was granted to the appellant therein to renew prayer under Section 406 CrPC. Stress was laid on tranquil court justice. It was also observed that when the said concept becomes a casualty there is collapse of our constitutional order. 20. However, liberty was granted to the appellant therein to renew prayer under Section 406 CrPC. Stress was laid on tranquil court justice. It was also observed that when the said concept becomes a casualty there is collapse of our constitutional order. 20. In [Ram Chander v. State of Haryana, (1981) 3 SCC 191 : 1981 SCC (Cri) 683] , while speaking about the presiding Judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The learned Judge reproduced a passage from Sessions Judge, Nellore v. Insha Ramana Reddy [Sessions Judge, Nellore v. Insha Ramana Reddy, 1972 Cri LJ 1485 : 1971 SCC OnLine AP 84] which reads as follows : [Ram Chander v. State of Haryana, (1981) 3 SCC 191 : 1981 SCC (Cri) 683] , SCC p. 193, para 2 “2. … ‘2. … Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police diaries in a case and use them to aid it in the trial. Section 172(2) of the Code of Criminal Procedure enables the court to send for the police diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.’ (Insha Ramana Reddy case [Sessions Judge, Nellore v. Insha Ramana Reddy, 1972 Cri LJ 1485 : 1971 SCC OnLine AP 84] , SCC OnLine AP para 2)” While saying so, it has been further held that the Court may actively participate in the trial to elicit the truth and to protect the weak and the innocent and it must, of course, not assume the role of a prosecutor in putting questions. 21. In [Rattiram v. State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] speaking on fair trial the Court opined that : (SCC p. 534, para 39) “39. … Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.” In the said case, it has further been held : (SCC pp. 541-42, paras 60-62 & 64) “60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in [Mangal Singh v. Kishan Singh, (2009) 17 SCC 303 : (2011) 1 SCC (Cri) 1019] wherein it has been observed thus : (SCC p. 307, para 14) ‘14. … Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.’ 61. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.’ 61. It is worth noting that the Constitution Bench in [Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri) 1101] (SCC p. 387, para 24) though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. 62. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple-pie order in carrying out the adjective law, would only be sound and fury signifying nothing. * ** 64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.” (emphasis in original) 22. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.” (emphasis in original) 22. In [J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401 : (2014) 1 SCC (Cri) 824] it has been ruled that : (SCC p. 414, para 28) “28. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general.” It has further been observed that : (SCC p. 414, para 28) “28. … In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the “majesty of the law” and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.” Further, the Court has observed : (SCC pp. 414-15, para 29) “29. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. “No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'être in prescribing the time-frame” for conclusion of the trial.” 23. In [Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 : (2015) 3 SCC (Cri) 862] the Court referred to the authorities in [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385], [Rattiram v. State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481], [J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401 : (2014) 1 SCC (Cri) 824], [State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715 : 2000 SCC (Cri) 61] and other decisions and came to hold that : ([Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 : (2015) 3 SCC (Cri) 862], SCC p. 798, para 22) “22. Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one.” It has been further stated that : (SCC p. 798, para 22) “22. … The law does not countenance a “mock trial”. It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. … The law does not countenance a “mock trial”. It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control.” We may note with profit though the context was different, yet the message is writ large. The message is—all kinds of individual notions of fair trial have no room. 24. The decisions of this Court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilised to build castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. 25. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. Be it stated when the process of the court is abused in the name of fair trial at the drop of a hat, there is miscarriage of justice. And, justice, the queen of all virtues, sheds tears. That is not unthinkable and we have no hesitation in saying so. 26. Having dwelled upon the concept of fair trial we may now proceed to the principles laid down in the precedents of this Court, applicability of the same to a fact situation and duty of the court under Section 311 CrPC. The said provision reads as follows: “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.” 27. A quarter of a century back, a two-Judge Bench in [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] has held that : (SCC pp. A quarter of a century back, a two-Judge Bench in [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] has held that : (SCC pp. 276-77, paras 7-9) “7. … Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words “to be” before the word “essential” occurring in the old section. This section is manifestly in two parts. Whereas the word used in the first part is “may” the word used in the second part is “shall”. In consequence, the first part which is permissive gives purely discretionary authority to the criminal court and enables it “at any stage of enquiry, trial or other proceedings” under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the court— (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as “any court”, “at any stage”, or “of any enquiry, 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 the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.” (emphasis supplied) The aforesaid passages make it abundantly clear about the broad applicability of the provision and the role of the court in two distinct situations. 28. 28. In the said authority the Court referred to the earlier pronouncements in [Rameshwar Dayal v. State of U.P., (1978) 2 SCC 518 : 1978 SCC (Cri) 311] , [State of W.B. v. Tulsidas Mundhra, (1963) 2 SCJ 204 : 1963 Supp (1) SCR 1 : (1964) 1 Cri LJ 443], [Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 : 1968 Cri LJ 231] and proceeded to opine that : ([Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] , SCC p. 283, para 27) “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” (emphasis supplied) It is important to note here in the said case, it was also observed that : (SCC p. 280, para 18) “18. … Though Section 540 (Section 311 of the new Code) is, 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 they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a [Ed. : The matter between two asterisks has been emphasised in original.] just decision of the case [Ed. : The matter between two asterisks has been emphasised in original.] by getting at the truth by all lawful means. : The matter between two asterisks has been emphasised in original.] just decision of the case [Ed. : The matter between two asterisks has been emphasised in original.] by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.” (emphasis supplied) 29. In [Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 : 1999 SCC (Cri) 1062] occasion arose to appreciate the principles stated in Mohanlal Shamji Soni [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] . The two-Judge Bench took note of the observations made in the said case which was to the effect that while exercising the power under Section 311 CrPC, the court shall not use such power “for filling up the lacuna left by the prosecution”. Explaining the said observation Thomas, J. speaking for the Court observed :[Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 : 1999 SCC (Cri) 1062] , SCC p. 113, para 8) “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” (emphasis supplied) 30. After so stating the two-Judge Bench referred to the exigencies of the situation and the ample power of the Court as has been laid in [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] and further referred to the authority in [Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 : 1968 Cri LJ 231] and opined thus : [Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 : 1999 SCC (Cri) 1062] , SCC p. 114, para 12) “12. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at.” (emphasis supplied) 31. The aforesaid decision in [Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110 : 1999 SCC (Cri) 1062] has to be appropriately understood. It reiterates the principle stated in [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] . It has only explained the sphere of lacuna by elaborating the same which has taken place due to oversight and non-production of material evidence due to inadvertence. It reiterates the principle stated in [Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 : AIR 1991 SC 1346 ] . It has only explained the sphere of lacuna by elaborating the same which has taken place due to oversight and non-production of material evidence due to inadvertence. It is significant to note that it has also reiterated the principle that such evidence is necessary for a just decision by the Court. 32. In [UT of Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 : (2006) 3 SCC (Cri) 300] , the Court was dealing with an order passed by the High Court whereby it had allowed the revision and set aside the order passed by the learned trial Judge who had exercised the power under Section 311 CrPC to summon certain witnesses. The Court referred to the earlier authorities and ruled that it is well settled that 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 of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the 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. Be it stated, in the said case the Court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High Court. 33. In [Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] , the Court after referring to Section 311 CrPC and Section 138 of the Evidence Act observed that Section 311 CrPC vest widest powers in the court when it comes to the issue of summoning a witness or to recall or re-examine any witness already examined. Analysing further with regard to “trial”, “proceeding”, “person already examined”, the Court ruled that 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. The Court observed that 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 reexamination of any person, appears in the view of the court to be essential for the just decision of the case. The learned Judges further ruled that 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. It was also stated that while such a widest power is invested with the court, exercise of such power should be made judicially and also with extreme care and caution. 34. The Court referred to the earlier decisions and culled out certain principles which are to be kept in mind while exercising power under Section 311 CrPC. We think it seemly to reproduce some of them : [Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] , SCC pp. 473-74, para 17) “17.2. 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. 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 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. 17.5. 17.4. 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. 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. 17.10. 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. 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. *** 17.14. 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.” (emphasis supplied) 35. 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.” (emphasis supplied) 35. Recently in [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] , the Court reproduced the principles culled out in [Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] and thereafter referred to the authority in Hoffman Andreas [Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 : 2001 SCC (Cri) 1488] wherein it has been laid down that : [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] , SCC p. 416, para 14) “14. … ‘6. … 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. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.’ [Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 : 2001 SCC (Cri) 1488] , SCC p. 432, para 6)” The Court in [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] explained the said authority by opining thus : (SCC p. 416, para 15) “15. … 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. … 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. The 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 the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.” We respectfully agree with the aforesaid exposition of law. 36. Keeping in mind the principles stated in the aforesaid authorities the defensibility of the order passed by the High Court has to be tested. We have already reproduced the assertions made in the petition seeking recall of witnesses. We have, for obvious reasons, also reproduced certain passages from the trial court judgment. The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesses. That apart, it has been urged that certain suggestions could not be given. The marrow of the grounds relates to the illness of the counsel. It needs to be stated that the learned trial Judge who had the occasion to observe the conduct of the witnesses and the proceedings in the trial, has clearly held that recalling of the witnesses was not necessary for just decision of the case. The High Court, as we notice, has referred to certain authorities and distinguished the decision in [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] and [UT of Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 : (2006) 3 SCC (Cri) 300] . The High Court, as we notice, has referred to certain authorities and distinguished the decision in [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510] and [UT of Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC 529 : (2006) 3 SCC (Cri) 300] . The High Court has opined that the court has to be magnanimous in permitting mistakes to be rectified, more so, when the prosecution was permitted to lead additional evidences by invoking the provisions under Section 311 CrPC. The High Court has also noticed that the accused persons are in prison and, therefore, it should be justified to allow the recall of witnesses. 37. The heart of the matter is whether the reasons ascribed by the High Court are germane for exercise of power under Section 311 CrPC. The criminal trial is required to proceed in accordance with Section 309 CrPC. This Court in [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] , while dealing with delay in examination and cross-examination was compelled to observe thus : (SCC pp. 226-27, para 1) “1. If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present.” And again : (SCC p. 246, para 57.5) “57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort.” 38. Yet again, in [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49] , the agony was reiterated in the following expression : (SCC p. 124, para 35) “35. We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same.” 39. There is a definite purpose in referring to the aforesaid authorities. We are absolutely conscious about the factual matrix in the said cases. The observations were made in the context where examination-in-chief was deferred for quite a long time and the procrastination ruled as the Monarch. Our reference to the said authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. The observations were made in the context where examination-in-chief was deferred for quite a long time and the procrastination ruled as the Monarch. Our reference to the said authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. Recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, we are inclined to think, are not acceptable in the obtaining factual matrix. The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous. 40. In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, that is, 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions and give certain suggestions. It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction. 41. It is noticeable that the High Court has been persuaded by the submission that recalling of witnesses and their cross-examination would not take much time and that apart, the cross-examination could be restricted to certain aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross-examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. We are disposed to think that this kind of plea in a case of this nature and at this stage could not have been allowed to be entertained. 42. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and how it should be understood. Therefore, a balance has to be struck. We have already explained the use of the words “magnanimous approach” and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance. 43. In view of the proceeded analysis we allow the appeals, set aside the order passed by the High Court and restore that of the learned trial Judge. We direct the learned trial Judge to proceed with the trial in accordance with the law." 22. Sri Verma also placed reliance on paras 10 and 11 of the judgment passed by the Hon'ble Supreme Court in the case of Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839 : 2019 SCC OnLine SC 161:- "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law." 23. Sri Verma further submitted that the facts of the present case are not identical to that of Manju Devi (supra). In the case of Manju Devi (supra), the Autopsy Surgeon was not examined as he was in "Nigeria" and therefore, the said witness was required for "Fair and Just" decision in the trial and considering the same, the application under Section 311 Cr.P.C. was preferred which was allowed by the Hon'ble Supreme Court. However, in the present case, the accused after due cross-examination of prosecution witnesses including PW-1 and PW-7 as also after recording of statement under Section 313 Cr.P.C., preferred an application with delay, as such, this application has been moved only to fill up the lacuna as also to delay the proceedings of the case, which is not permissible in the eye of law. The prayer is to reject the present application. 24. From the above referred exposition of law, it is evident, in brief, that it is no more res-integra that the Trial Court, in the proceedings under the Code of Criminal Procedure, 1973, has ample/wide power to summon any material witness or person for examination or re-examination in exercise of its power conferred upon it under Section 311 and this discretionary power, which should be exercised judicially and not arbitrarily, can be exercised by the Trial Court at any stage of proceedings under the Code. 25. Considered the submissions made by the learned counsel for the parties and perused the record. 26. Undisputed facts of the case, in brief, are that:- (i) the complaint case was registered vide order dated 23.06.2003 on the application preferred by the complainant/opposite party No. 2/Ram Newal Tiwari (PW-1) under Section 156(3) Cr.P.C. and thereafter the case was registered as Sessions Trial No. 312 of 2008 (State v. Ram Nayak Singh & others), under Sections- 147, 323, 427, 452, 506, 395, 394 IPC, P.S.- Jaisinghpur, District-Sultanpur. (ii) the charges were framed on 04.11.2008. (ii) the charges were framed on 04.11.2008. (iii) the examination of PW-1/Ram Newal Tiwari was concluded on 27.01.2009. (iv) the examination of PW-7/Smt. Kiran Tiwari was concluded on 18.11.2021. (v) the statement of accused persons were recorded, as required under Section 313 Cr.P.C., on 24.11.2021. (vi) thereafter, an application dated 03.01.2022 under Section 311 Cr.P.C. for recall of witnesses i.e. PW-1 and PW-7 was preferred by the subsequently engaged counsel. (vii) the cross-examination was conducted by the earlier counsel and not by the counsel who moved the application in issue. (viii) the witnesses i.e. PW-1 and PW-7 were duly cross examined by the accused. (ix) from the impugned order dated 07.01.2022 it is apparent that the Trial Court after considering the facts of the case specifically observed that the charges were framed on 04.11.2008 and on 24.11.2021, the accused persons were examined as required under Section 313 Cr.P.C. and PW-1 and PW-7 were extensively cross examined as also that the application has been moved with an intention to delay the proceedings and after making these observations rejected the application of accused-applicant preferred by him under Section 311 Cr.P.C. (x) the basic reason indicated in the application for recall of witnesses, as appears from para 2 of the application, is to the effect that on some issues, the witnesses could not be cross examined. The relevant part of para 2 of application in issue, reads as under:- (xi) the pending trial has been expedited by the Hon'ble Supreme Court, as indicated in the impugned order. 27. Upon due consideration of the submissions made by the learned counsel for the parties, above noted facts of the case and the law on the issue as well as observations of the Trial Court in the impugned order dated 07.01.2022, this Court is of the view that for the following reasons the impugned order dated 07.01.2022 is not liable to be interfered with in exercise of power conferred upon this Court under Section 482 Cr.P.C. (i) The Hon'ble Supreme Court has expedited the trial in issue which is pending for more than 13 years, as the charges were framed on 04.11.2008. (ii) The application dated 03.01.2022, wrongly mentioned as "03.01.2021" for recall of witnesses i.e. PW-1/Ram Newal Tiwari and PW-7/Smt. Kiran Tiwari was moved after recording of statements of accused persons under Section 313 Cr.P.C., which were recorded on 24.11.2021. (ii) The application dated 03.01.2022, wrongly mentioned as "03.01.2021" for recall of witnesses i.e. PW-1/Ram Newal Tiwari and PW-7/Smt. Kiran Tiwari was moved after recording of statements of accused persons under Section 313 Cr.P.C., which were recorded on 24.11.2021. (iii) The application dated 03.01.2022, in issue, was preferred by new counsel engaged by the accused. (iv) The basic reason, quoted below, indicated in para 2 of the application dated 03.01.2021 is to the effect that on some issues, the witnesses PW-1 and PW-7 could not be cross examined, whereas, from the statements of PW-1 and PW-7 annexed as Annexure No. 6 to the present application, it appears that both were duly cross examined. (v) The application dated 03.01.2022 was moved after lapse of more than 12 years from the date of cross-examination of PW-1 i.e. 27.01.2009 and after more than one month from the date of conclusion of statement of PW-7 i.e. 18.11.2021. (vi) The Trial Court, in the impugned order, after considering the facts of the case, observed that with an intention to delay the proceedings, the application for recall of witnesses has been moved. In the facts of the case, this Court is also of the same view. (vii) In nutshell, from the aforesaid, it can be deduced that the application for recall of witnesses was filed as an abuse of process of law. For the foregoing reasons, the present application under Section 482 Cr.P.C. is rejected.