# AG v. SHIV KUMAR YADAV &ANR

- **Citation:** [2015] 10 S.C.R. 455
- **Court:** Supreme Court of India
- **Decided:** 2015-09-10
- **Case number:** Criminal Appeal Nos. 1187-1188 of 2015
- **Bench:** Jagdish Singh Khehar, Adarsh Kumar Goel
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ag-v-shiv-kumar-yadav-anr-30192
- **Pages:** 41

## Headnote

A
B
Code of Criminal Procedure, 1973- s. 311 - Power to c
summon material witness, or examine person present -_
Matter pertaining to commission of rape - Application u/s.
311 "for recall of prosecution witnesses, at the stage when
statement of accused has been recorded - Plea raised that
the defence counsel was not competent and had not 0
effectively cross-examined the witnesses - Held: Recall
could be permitted if essential for the just decision - Recall
is not a matter of course and discretion given to the court
has to be exercised judiciously to prevent failure of justice -
Instant case is in the category of cases where the trial is E
required to be fast tracked - While advancement of justice
remains the prime object of law, recall cannot be allowed for
the asking or reasons related to mere convenience -
Witnesses cannot be expected to face the hardship of
appearing in court repeatedly, particularly in such sensitive F
cases - 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 - It would result in
undue delay in the trial - High Court did not assign a single
specific reason as to how recall of as many as 13witnesse~ G
was necessary as. directed in the impugned order - Thus,
the order passed by the High Court is set aside and
application for recall is dismissed-Administration of criminal
justice.
455
H
456
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A
Judicial notice - Retrial on the ground of unfitness of
the counsel- Court taking notice of- Since interest of society
is paramount and instead of trials being conducted again on
account of unfitness of the counsel, reforms are necessary
so that such a situation does not arise - There is a need to
B review the Advocates Act and the relevant Rules to examine
the continued fitness of an advocate to conduct a criminal
trial by the concerned Authorities including the Law
Commission and the Bar Council of India - Advocates Act,
1961.
c
Allowing the appeals, the Court
HELD: 1.1 While advancement of justice remains the
prime object of law, it cannot be understood that recall
0 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
E follow on every change of a counsel, can have serious
consequences on conduct of trials and th~ 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
F in undue hardship for victims, especially so, of heinous
· crimes, if they are required to repeatedly appear in court
to face cross-examination. The interest of justice may
suffer if the counsel conducting the trial is physically or
mentally unfit on account of any disability. The interest
G 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. [Paras 15, 16] [477-F-H; 478-AH B]
1.2 The instant case is in the category of cases where
AG v. SHIV KUMAR YADAV &ANR.
457
the trial is required to be fast tracked. Referring to the A
ground of the earlier counsel not being competent, the
trial court observed that the counsel was of the choice
of the accused. The accused was not facing a criminal
trial for the first time. The cross-examination of witnesses
was deferred time and again to enable the counsel to B
seek instructions from the accused. lnspite 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 the C
application of the accused. It was observed that the
accused w

## Text

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[2015] 10 S.C.R. 455
AG
v.
SHIV KUMAR YADAV &ANR.
(Criminal Appeal Nos. 1187-1188 of 2015)
SEPTEMBER 10, 2015
[JAGDISH SINGH KHEHAR AND
ADARSH KUMAR GOEL, JJ.]
A
B
Code of Criminal Procedure, 1973- s. 311 - Power to c
summon material witness, or examine person present -_
Matter pertaining to commission of rape - Application u/s.
311 "for recall of prosecution witnesses, at the stage when
statement of accused has been recorded - Plea raised that
the defence counsel was not competent and had not 0
effectively cross-examined the witnesses - Held: Recall
could be permitted if essential for the just decision - Recall
is not a matter of course and discretion given to the court
has to be exercised judiciously to prevent failure of justice -
Instant case is in the category of cases where the trial is E
required to be fast tracked - While advancement of justice
remains the prime object of law, recall cannot be allowed for
the asking or reasons related to mere convenience -
Witnesses cannot be expected to face the hardship of
appearing in court repeatedly, particularly in such sensitive F
cases - 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 - It would result in
undue delay in the trial - High Court did not assign a single
specific reason as to how recall of as many as 13witnesse~ G
was necessary as. directed in the impugned order - Thus,
the order passed by the High Court is set aside and
application for recall is dismissed-Administration of criminal
justice.
455
H
456
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A
Judicial notice - Retrial on the ground of unfitness of
the counsel- Court taking notice of- Since interest of society
is paramount and instead of trials being conducted again on
account of unfitness of the counsel, reforms are necessary
so that such a situation does not arise - There is a need to
B review the Advocates Act and the relevant Rules to examine
the continued fitness of an advocate to conduct a criminal
trial by the concerned Authorities including the Law
Commission and the Bar Council of India - Advocates Act,
1961.
c
Allowing the appeals, the Court
HELD: 1.1 While advancement of justice remains the
prime object of law, it cannot be understood that recall
0 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
E follow on every change of a counsel, can have serious
consequences on conduct of trials and th~ 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
F in undue hardship for victims, especially so, of heinous
· crimes, if they are required to repeatedly appear in court
to face cross-examination. The interest of justice may
suffer if the counsel conducting the trial is physically or
mentally unfit on account of any disability. The interest
G 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. [Paras 15, 16] [477-F-H; 478-AH B]
1.2 The instant case is in the category of cases where
AG v. SHIV KUMAR YADAV &ANR.
457
the trial is required to be fast tracked. Referring to the A
ground of the earlier counsel not being competent, the
trial court observed that the counsel was of the choice
of the accused. The accused was not facing a criminal
trial for the first time. The cross-examination of witnesses
was deferred time and again to enable the counsel to B
seek instructions from the accused. lnspite 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 the C
application of the accused. It was observed that the
accused was in custody and if he adopted delaying
tactics it is qnly he who would suffer. It is difficult to
approve the view taken by the High Court. [Para 22, 26 0
and 27) [484-H; 485-A; 492-C-E]
1.3 Undoubtedly, fair trial is the objective and it is
the duty of the court to ensure such fairness. Width of
power under Section 311 Cr.P.C. is beyond any doubt.
Not a single specific,reason has been assigned by the E
High Court as to how in the instant 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 reasoi:is pressed before F
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 G
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 H
witnesses to be recalled which could not be justified on
458
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A 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 instant case. Mere observation that recall
B was necessary "for ensuring fair trial" is not enough
unless there are tangible reasons4:o 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 judtciously to prevent failure of justice and not
C 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
0 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. In view
thereof, there is no ground to justify the recall of
E witnesses already examined. [Para 27] [492-E-H; 493-AD]
1.4 The High Court allowed the prayer of the
accused, even while finding no error in the view taken
by the trial court, merely by saying tf'iat exercise of power
F was required for granting fair and proper opportunity to
the accused. No reasons have been recorded in support
of this observation. On the contrary, the view taken by
the trial court rejecting the stand of the accused was
affirmed. Thus, the conclusion appears to be
G inconsistent with the reasons in the impugned order.
[Para 28] [493-F-G]
1.5 The view of the High Cour:t is disapproved due
to the following reasons:
,,
H
(i) The trial court and the High Court held that the
AG v. SHIV KUMAR YADAV &ANR.
459
accused had appointed counsel of his choice. He A ·
was facing trial in other cases also . .,.he earlier
counsel were given due opportunity and had duly
conducted cross-examination. They were under no
handicap;
(ii) No finding could be recorded that the counsel
appointed by the accused were incompetent
particularly at back of such counsel;
B
(iii) Expeditious trial in a heinous offence as is alleged c
in the instant case is in the interests of justice;
(iv) The trial court as well as the High Court rejected
the reasons for recall of the witnesses;
(v) The court has to keep in mind not only the need D
for giving fair opportunity to the accused but also
the need for ensuring that the victim of the crime is
not unduly harassed;
(vi) Mere fact that the accused was in custody and E
that he will suffer by the delay could be no
consideration for allowing recall of witnesses,
particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be ground to F
recall the witnesses;
(viii) There is no basis for holding that any prejudice
will be caused to the accused unless the witnesses
are recalled;
G
(ix) The High Court has not rejected the reasons
given by the trial court nor given any justification for
permitting recall of the witnesses except for making
general observations that recall was necessary for H
460
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
ensuring fair trial. This observation is contrary to the
reasoning of the High Court in dealing with the
grounds for recall, i.e., denial of fair opportunity on
account of incompetence of earlier counsel or on
. B
c
D
E
F
G
H
account of expeditious proceedings;
(x) There is neither any patent error in the approach
adopted by the trial court rejecting the prayer for
recall nor any clear injustice if such prayer is not
granted. [Para 29) [494-A-H, 495-A-C]
1.6 The impugned order passed by the High Court
is set aside and the application for recall is dismissed.
[Para 30) [495-D]
Rajaram Prasad Yadav vs. State of Bihar 2013
(7) SCR 420: (2013) 14 SCC 461; Mannan Sk
VS. State of West Bengal (2014) 13 sec 59; P.
Sanjeeva Rao vs. State of A.P. 2012 (6) SCR 787:
(2012) 7 SCC 56; State of Punjab vs. Gurmit Singh
1996 (1) SCR 532: (1996) 2 sec 384; State of
Karnataka VS. Shivanna (2014) 8 sec 916;
Hoffman Andreas vs. Inspector of Customs (2000)
10 SCC 430; Dayal Singh vs. State of Uttarancha/
2012 (10) SCR 157: (2012) 8 SCC 263; Devender
Pal Singh vs. State (NCT of Delhi) 2002 (2) SCR
767: (2002) 5 sec. 234; NHRC vs. state of
Gujarat 2009 (7) SCR 236: (2009) 6 SCC 767;
Swaran Singh vs. State of Punjab 2000 (3) SCR
. 572 : (2000) 5 SCC 668; P. Ramachandra Rao
VS. State of Karnataka (2002) 4 sec 578; Delhi
Domestic Working Women' Forum vs. Union of
India 1994 (4) Suppl. SCR 528: (1995) 1 SCC
14; Natasha Singh vs. CBI 2013 (5) SCR 539:
(2013) 5 SCC 741; Mohan/a/ Shamji Soni vs.
Union of India 1991 (1) SCR 712: (1991) Supp.
AG v. SHIV KUMAR YADAV &ANR.
1 SCC 271; Zahira Habibul/a H. Sheikh vs. State
ofGujarat2004(3) SCR 1050: (2004) 4SCC 158;
Sister Mina Lalita Baruwa vs. State of Orissa 2013
(16) SC~ 788: (2013) 16 SCC 173; Raminder
Singh vs. State Crl.M.C.847912006 & Crl.M.A.
1435912006 decided on 20.02.2008 (Delhi H.C.);
Rama Paswan vs. State of Jharkhand 2007 (5)
SCR 83: (2007) 11 SCC 191; Nisar Khan vs. State
of Uttaranchal (2006) 9 SCC 386; Hussainara
Khatoon (/) vs. Home Secy. State of Bihar 1979
(3) SCR 169: (1980) 1 SCC 81; Vijay Kumar vs.
State of U.P 2011 (11) SCR 893: (2011) 8 sec
136; Kishore Chand vs. State of Himachal
Pradesh 1990 (1) Suppl. SCR 105: (1991) 1 SCC
286; Hardeep Singh vs. State of Punjab 2008 (15)
SCR 735: (2009) 16 SCC 785; Ram Chandervs.
State of Haryana 1981 (3) SCR 12: (1981) 3 SCC
191; State of Rajasthan vs. Ani@ Hanif 1997 (1)
SCR 199: (1997) 6 SCC 162; Ritesh Tewari vs.
State ofU.P 2010 (11) SCR 589: (2010) 10 SCC
677; Maria Margarida Sequeria Fernandes vs.
Erasmo Jack De Sequeria (dead) through Lrs.
2012 (3) SCR 841: (2012) 5 SCC 370; Rajeshwar
Prosad Misra vs. State of West Bengal (1966) 1
SCR 178; Jamatraj Kewalji Govanivs. The State
of Maharashtra (1967) 3 SCR 415; Raghunandan
vs. State of U.P 1974 (3) SCR 92: (1974) 4 sec
186; Shailendra Kumar vs. State of Bihar 2001
(5) Suppl. SCR 371: (2002) 1 SCC 655; Satyajit
Banerjee vs. State of West Bengal 2004 (6) Suppl.
SCR 294: (2005) 1 SCC 115; U. T. of Dadra &
Haveli vs. Fatehsinh Mohansinh Chauhan 2006
(4) Suppl. SCR 522: (2006) 7 SCC 529; lddar
vs. Aabida 2001 (8) SCR 518: (2007) 11 sec
211; HimanshuSinghSabharwalvs. StatedfM.P
461
A
B
c
D
E
F
G
H
462
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 10 S.C.R.
2008 (4) SCR 783: (2008) 3 SCC 602; Godrej
Pacific Tech. Ltd. vs. Computer Joint India Ltd.
2008 (11) scR 571: (2008) 11 sec 108;
Hanuman Ram vs. The State of Rajasthan 2008
(14) SCR 348: (2008) 15 SCC 652; Sudevanand
vs. State through CBI 2012 (2) SCR 139: (2012)
3 SCC 387; Mohd. Hussain@JulfikarA/ivs. The
State (Govt. of NCT) Delhi AIR (2012) SC 750:
2012 (1) SCR 64; J. Jayalalithaa vs. State of
Karnataka (2014) 2 SCC 401; Salamat Ali vs.
State Crl.A. No.242/2010, High Court of Delhi;
State (NCT of Delhi) vs. Navjot Sandhu 2005 (2)
Suppl. SCR 79: (2005) 11 sec 609; Mir. Mohd.
Omar vs. State of WB. 1989 (3) SCR 735: (1989)
4 SCC 436; Lt. Col. S.J. Chaudharyvs. State (Delhi
Administration) 1984 (2) SCR 438: (1984) 1 SCC
722; State of UP. vs. Shambhu Nath Singh 2001
(2) SCR 854: (2001) 4 SCC 667; Aki/ @ Javed
vs. State of NCT of Delhi 2012 (13) SCR 659:
(2013) 7 SCC 125; Vinod Kumar vs. State of
Punjab 2015 (1) SCR 504: (2015) 1SCALE542;
Jasbir Singh vs. State of Punjab 2006 (7) Suppl.
SCR 174: (2006) 8 sec 294- referred to.
Case Law Reference
2013 (7) SCR 420
referred to.
Para 6
(2014) 13 sec 59
referred to.
Para 6
2012 (6) SCR 787
referred to.
Para 6
1996 (1) SCR 532
referred to.
Para 6
(2014) 8 sec 916
referred to.
Para 6,18
(2000) 1 o sec 430
referred to.
Para 6
AG v. SHIV KUMAR YADAV &ANR.
463
2012 (10) SCR 157
referred to.
Para 6
A
2002 (2) SCR 767
referred to.
Para 6
2009 (7) SCR 236
re.ferred to.
Para 6
· 2000 (3) SCR 572
referred to.
Para 6
B
(2002) 4 sec 578
referred to.
Para 7
1994 (4) Suppl. SCR 528
referred to.
Para 7
2013 (5) SCR 539
referred to.
Para 7
c
1991 (1) SCR 712
referred to.
Para 7
2004 (3) SCR 1050
referred to.
Para 7
2013 (16) SCR 788
referred to.
Para 7
D
2007 (5) SCR 83
referred to.
Para 7
(2006) 9 sec 386
referred to.
Para 7
1979 (3) SCR 169
referred to.
Para 7
E
2011 (11) SCR 893
referred to .
Para 7
.
1990 (1) Suppl. SCR 105 referred to.
Para 8
F
2008 (15) SCR 735
referred to.
Para 8
1981 (3) SCR 12
referred to.
Para 8
1997 (1) SCR 199
referred to.
Para 8
G
2010 (11) SCR 589
referred to.
Para 8
2012 (3) SCR 841
referred to.
Para 8
(1966) 1 SCR 178
referred to.
Para 8
H
464
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
(1967) 3 SCR 415
referred to.
Para 8
1974 (3) SCR 92
referred to.
Para 8
2001 (5) Suppl. SCR 371
referred to.
Para 8
B
2004 (6) Suppl. SCR 29~ referred to.
Para 8
2006 (4) Suppl. SCR 522 referred to.
Para 8
2007 (8) SCR 518
referred to.
Paras
c
200S (4) SCR 7S3
referred to.
Para S
200S (11) SCR 571
referred to.
Para S
200S (14) SCR 34S
referred to.
Para S
D
2012 (2) SCR 139
referred tO.
Paras
2012 (1) SCR 64
referred to.
Paras
(2014) 2 sec 401
referred to.
Paras
E
2005 (2) Suppl. SCR 79
referred to.
Para 17
19S9 (3) SCR 735
referred to.
Para 20
19S4 (2) SCR 43S
referred to.
Para 23
F
2001 (2) SCR S54
referred to.
Para 23
2012 (13) SCR 659
referred to.
Para 23
2015 (1) SCR 504
referred to.
Para 23
G
2006 (7) Suppl. SCR 174 referred to.
Para 28
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
Nos. 1187-1188 of 2015.
H
From the Judgment and Order dated 04.03.2015 of the
AG v. SHIV KUMAR YADAV &ANR.
465
High Court of Delhi at New Delhi in Crl. M.C. 725 of 2015 and A
Crl. MA 2765 of2015.
WITH
CRL.A. NOS.1191-1192of2015
B
Mukul Rohatgi, AG, P.S. Patwalia, ASG, Kailash Vasdev,
Colin Gonsalves, Devanshee P., Ajay Sharma, Binu Tamta,
Samit, Ranjeeta Rohatgi, Gurmehar Sistani, Archit Upadhyay,
Dhruv Sheoran, Natasha Vinayak, Rajat Singh, Sukhmani, (for
D.S. Mahra) Sumeeta Choudhary, Satya Mitra, Divya Jyoti C
Jaipuriar for the Appellant.
D.K. Mishra,AnkitAggarwal, M.Z.Ali,Abhinav Mishra, (for
Bankey Bihari) for the Respondents.
D
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted. The issue
raised for consideration in these appeals is whether recall of
witnesses, at the stage when statement of accused under E
Section 313 of the Code of Criminal Procedure ("Cr.P.6.") has
been recorded, could be allowed on the plea that the defence
counsel was not competent and had not effectively crossexamined the witnesses, having regard to the facts and
circumstances of this case.
F
2. Facts relevant for deciding the issue lie in a narrow
compass. On Sth December, 2014, a First Information Report
was lodged alleging that the respondent accused who was
the driver of cab No.DL-1YD-7910, SwiftDezire, hire(:! by the G
victim on 5th December, 2014 for returning home from her-0ffice
committed rape on her. The statement of the prosecutrix was
recorded under Section 164 Cr.P.C. on 81h December, 2014.
After investigation, charge sheet was filed before the
Magistrate on 241h December, 2014. Since the accused was H
466
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
not represented by counsel, he was provided legal aid counsel.
Thereafter on 2nct January, 2015, the accused engaged his
private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in
place of the legal aid counsel. Thereafter, the case was
committed to the Court of Session. Charges were framed on
B
13th January, 2015. Prosecution evidence commenced on 15th
January, 2015 and was closed on 31•1 January, 2015. The
witnesses were duly cross-examined by the counsel engaged
by the accused. Statement of the accused under Section 313
Cr.PC. was recorded on 3rct February, 2015. On 4th February,
C 2015,,an application for recall of prosecutrix PW2 ar:id formal
witness PW-23 who booked the cab was made, but the same
was rejected and the said order was never challenged.
Thereafter, on 9th February, 2015, the accused engaged
0
another counsel, who filed another application under Section
311 Cr.P.C. for recall of all the 28 prosecution witnesses on
16th February, 2015. The said application was dismissed on
18th February by the trial court but the same was allowed by
the High Court vide impugned order dated 4th March, 2015 in
E a petition filed under Article 227 of the Constitution of India
read with Section 482 Cr.PC. Even though the specific
grounds"urged in the application were duly considered and
rejected, it was observed that recall of certain witnesses was
deemed proper for ensuring fair trial.
F
3. Aggrieved by the order of the High Court, the victim as
well as the State have moved this Court.
4. On 101h March, 2015, when the matter came up for
hearing before this Court, stay of further proceedings was
G granted but since the prosecutrix had already been recalled in
pursuance of the impugned order and further cross-examined,
the said deposition was directed to be kept in the sealed cover
and publication thereof by anyone in possession thereof was
H restrained.
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
467
5. We have heard learned Attorney General appearing for A
the State, Shri Colin Gonsalves, learned senior counsel
appearing for the victim and Shri D.K. Mishra, learned counsel
appearing
·
for
the accused.
6. Learned Attorney General submitted that the view taken
by the High Court was erroneous and true scope of power of
recall has not been appreciated. Firstly, though the power of
recall is very wide and could ~e exercised at any stage, it could
B
not be exercised mechanically, without just and adequate C
grounds. At the end of the trial, exercise of such power was
permissible only in exceptional situations. Once trial is
conducted by a counsel, another counsel could not seek retrial
or recall of all the witnesses merely by alleging that the previous
counsel was not competent. At any rate, the court permitting D
such a course must record cogent reasons. Secondly,
harassment of the victim on being recalled for crossexamination was a relevant factor which was required to be
taken into account. Thirdly, expeditious trial in a heinous offence
was another factor which was required to be taken into account. E
In this case, a further factor which the impugned order ignores
is that the respondent was not facing a criminal case for the
first time. He was facing three cases of rape earlier and was
well conversant with the legal matters. He had made his own
F
informed choice in appointing a counsel. Interference by the
High Court was permissible only when the view taken by the
trial court declining prayer for recall was found to be perverse
or unjust. It was further pointed out that the conclusion recorded
by the High Court was contrary to the findings in the order G
rejecting various grounds raised in support of prayer for recall.
Learned Attorney General made reference to decisions of this
Court in Rajaram Prasad Yadavvs. State of Bihal", Mannan
1 (2013) 14 sec 461
H
468
SUPREME COURT REPORTS
[2015] 10S.C.R.
A Sk vs. State of West BenqaP, P. Sanjeeva Rao vs. State of
A;P.3, State of Punjab vs. Gurmit Singh', State of Kamataka
vs. Shivanna5, Hoffman Andreas vs. Inspector of
Customs6, Dayal Singh vs. State of Uttaranchal7,
Devender Pal Singh vs. State (NCT of Delhi}',
B NHRC vs. State of Gujarat!', Swaran Singh vs. State of
Punjab10•
7. Shri Gonsalves, learned senior counsel adopted the
submissions of learned Attorney General and further submitted
C that the High Court appears to have been impressed by the
fact that the accused was in custody and thus had no reason
to delay the trial. A presumption that an accused in custody
will not delay the trial was not well founded and could not be a
valid consideration for retrial or recall of prosecutrix and other
D witnesses. The prosecutrix had already faced court
proceedings while recording her statement under Section 164
Cr.P. C. and while facing cross-examination for three days. He
also placed reliance on P. Ramachandra Rao vs. State of
Karnataka11, Delhi Domestic Working Women' Forum vs.
E Union oflndia12, Natasha Singh vs. CB/13, Mohan/al Shamji
2 (2014) 13 sec 59
' (2012) 7 sec 56
F
• (1996) 2 sec 384
• (2014) 8 sec 916
• (2000) 10 sec 430
1 (2012) 8 sec 263
G
• (2002) 5 sec 234
• (2009) 6 sec 767
1• (2000) 5 sec 668
11 (2002) 4 sec 578
12 (1995) 1 sec 14
H
" (2013) 5 sec 741
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
469
Soni vs. Union of lndia14, Zahira Habibulla H. Sheikh vs. A
· State of Gujarat15; Sister Mina· Lalita Baruwa vs. State of
Orissa16, Raminder Singh vs. State17, Rama Paswan vs.
State of Jharkhand18, Nisar Khan vs. State of UttarancharP,
Hussainara Khatoon OJ vs. Home Secv. State of Biharo
and Vijay Kumar vs. State of U.P.21•
B
8. Learned counsel for the respondent-accused
supported the impugned order and submitted that though the
previous counsel had cross-examined the witnesses, he had
not asked relevant questions nor given suggestions which were C
required to be given. He placed reliance on Kishore Chand
vs. State of Himachal Pradesh22, Hardeep Singh vs. State
of Punjab23, Ram Chander vs. State of Harvana24, State of
Rajasthan vs. Ani @ HaniP5, Ritesh Tewari vs. State of
U.P. 26, Maria Margarida Segueria Fernandes vs. Erasmo D
Jack De Segueria (dead) through Lrs. 27, Rajeshwar
Prasad Misra vs. State of West Benqa/28, Jamatraj Kewa/ii
" (1991 l supp. 1 sec 211
" (2004 l 4 sec 1 s8
1• (2013) 16 sec 113
17 CrU!'l.C.847912006 & Crt.M.A. 14359/2006, decided on 20:02.2008 (Delhi
H.C.)
1• (2001) 11 sec 191
" (2006) 9 sec 386
20 (1980) 1 sec 81
21 (2011) 8 sec 136
22 (1991) 1 sec 286
23 (2009) 16 sec 785
,. (1981) 3 sec 191
" (1997) 6 sec 162
.. (201 o) 10 sec 677
21 (2012) 5 sec 310
28 (1966) 1 SCR 178
E
F
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H
470
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A Govani vs. The State of Maharashtra29, Raghunandan vs.
State of U.P. 30, Shai/endra Kumar vs. State of Bihar1, .
Satvaiit Banerjee vs. State of West BengaP2, U. T. of Dadra
& Have/i vs. Fatehsinh Mohansinh Chauhan33, lddar vs.
Aabida34, Himanshu Singh Sabharwal vs. State of M.P. 35,
B Godrei Pacific Tech. Ltd. vs. Computer Joint India Ltd.36,
Hanuman Ram vs. The State of Rajasthan37, Sudevanand
vs. State through CB/38, Mohd. Hussain @Ju/fikar Ali vs.
The State (Govt. of NCTJ Delhi39, J. Jayalalithaa vs. State
of Karnataka4°, Salamat Ali vs. State (Crl.A. No.24212010,
C High Court of Delhi).
9. We have considered the rival submissions.
10. It can hardly be gainsaid that fair trial is a part of
o guarantee under Article 21 of the Constitution of India. Its
content has primarily to be determined from the stat1Jtory
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
E for. It is also true that principle of fair trial has to be kept in
mind for interpreting the statutory provisions.
29 (1967) 3 SCR 415
'' (1974) 4 sec 186
F
" (2002) 1 sec 655
32 (2005) 1 sec 115
33 (2006) 7 sec 529
" (2007) 11 sec 211
G
35 (2008) 3 sec 602
3• (2008) 11 sec 108
" (2ooa) 15 sec 652
3• (2012) 3 sec 387
39 AIR (2012) SC 750
H '° (2014) 2 sec 401
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
471
11. It is further well settled that fairness of trial has to be A
seen not only from the point of view of the accused, but also
from the pointofviewofthe victim and the society. In the name
offairtrial, 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 B
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 C
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 0
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 E
this case .
. 12. In Raja ram case, the complainant was examined ~ut
he did not support the prosecution case. On account of
subsequent events he changed his mind and applied for recall
F
under Section 311 Cr.P.C. which was declined by the trial court
but allowed by the High Court. This Court held such a course
to be impermissible, it was observed :
"13. .. In order to appreciate the stand of the appellant
it will be worthwhile to refer to Section 311 CrPC, as well G
as Section 138 of the Evidence Act. The same are
extracted hereunder:
Section 311, Code of Criminal Procedure
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472
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
"311. Power to summon material witness, or
examine person present.-Any court may, at any
stage of any inqui,Y, trial or other proceeding under this
Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a
B
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."
c
D
E
*
*
*
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
F
shall be directed to the explanation of matters refe"ed
to in cross-examination; and if new matter is, by
permission of the court, introduced in re-examination,
the adverse party may further cross-examine upon that
matter."
G
14. A conspicuous reading of Section 311 CrPC would
show that widest of the powers have been invested with
the courts when it comes to the question of summoning
a Vi(itness or to recall or re-examine any witness already
H
examined. A reading of the provision shows that the
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
473
expression "any" has been used as a prefix to "court",
A
"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 B
that all that was required to be satisfied by the court was
only in relation to such evidence that appears to the
court to be essential for the just decision of the case.
Section 138 of the Evidence Act, prescribed the order
of examination of a witness in the court. The order of C
re-examination is also prescribed calling for such a
witness so desiredfor such re-examination. Therefore,
a reading of Section 311 CrPC and Section 138
Evidence Act, insofar as it comes to the question of a D
criminal trial, the order of re-examination at the desire
of any person under Section 138, will have to
necessarily be in consonance with the prescription
contained in Section 311 CrPC. It is, therefore,
imperative that the invocation of Section 311 CrPC and E
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 F
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 G
examined. Insofar as recalling and re-examination of
any person already examined is concerned, the court
must necessarily consider and ensure that such recall
and re-examination of any person, appears in the view
of the court to be essential for the just decision of the H
474
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
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
B
such power should be made judicially and also with
extreme care and caution."
c
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 Section 311 is noted by the court for
o
ajustdecision ofa case?
E
F
G
H
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 ofjustice 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 offinding 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
fads and circumstances of the case make it apparent
that the exercise of power by the court would result in
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
475
causing serious prejudice to the accused, resulting in A
miscarriage of justice.
17. 6. The wide discretionary power should be exercised
judiciously and not arbitrarily.
B
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 C
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 D
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 E
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 F
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 G
the court shfJuld 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.
H
476
SUPREME COURT REPORTS
[2015] 10S.C.R.
A
The court should bear in mind that improper or
capricious exercise of such a discretionary power, may
lead to undesirable results.
B
c
D
E
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. 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, the counsel who was
F 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
G 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 obs'erved :
"6. Normally, at this late stage, we would be disinclined
H
to open .up a closed trial once again. But we are .
AG v. SHIV KUMAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
477
persuaded to consider it in this case on account of the A
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 B
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 C
certain aspects. In such circumstances, if the new
counsel thought tp have the material witnesses further
examined the Court could adopt latitude and a liberal
view in the interest of justice, particularly when the Court 0
has unbridled powers in the matter as enshrined in
Section 311 pf 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
E'
a counsel. While advancement of justice remains the prime
object of law, it cannot-be understood that recall can be allowed
F
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 . G
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 H
478
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
are required to repeatedly appear in court to face crossexamination .
•
16. The interest of justice may suffer if the counsel
conducting the trial is physically or mentally unfit on account of
s 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
C 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 ~dvocate who conducted
trial was unfit or incompetent. This is an aspect which needs
to be looked into by the concerned authorities including the
D Law Commission and the Bar Council of India.
.E
F
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17. In State (NCT of Delhi) vs. Na'vjot Sandht.r11 , this
. Court held:
"167. . . . . . . . . . . we do not think that the Court should
dislodge the counsel and go on searching for some
other counsel to the liking of the accused. The right to
legal aid cannot be taken thus far. It is not demonstrated
before us as to how the case was mishandled by the
· advocate appointed as amicus except pointing out stray
instances pertaining to the cross-examination of one
or two witnesses. The very decision relied upon by the
learned counsel for the appellant, namely, Strickland
v. Washington makes it clear that judicial scrutiny of a
counsel's performance must be careful, deferential and
circumspect as the ground of ineffective assistance
could be easily raised after an adverse verdict at the
trial. It was observed therein:
H " (2oos) 11 sec aoo
AG v. SHIV KUllliAR YADAV &ANR.
[ADARSH KUMAR GOEL, J.]
479
"Judicial scrutiny of the counsel's performance must A
be highly deferential. It is all too tempting for a
defendant to second-guess the counsel's assistance
after conviction or adverse sentence, and it is all too
easy for a court, examining the counsel's defence after
it has proved unsuccessful, to conclude that a particular B
act of omission of the counsel was unreasonable. Cf.
Engle v. Isaac {456 US 107 (1982) at pp. 133-134). A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of the C
counsel's challenged conduct, and to evaluate the
conduct from the counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court ·must indulge in a strong 0
presumption that the counsel's conduct falls within the
wide range of reasonable professional assistance; .... "
18. It may be proper to recall that the present case is in
the category of cases where the trial is required to be fast
tracked. In fact this Court directed in Shivanna [(2014) 8 SCC
E
916] as under:
"2.