# STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC

- **Citation:** [2016] 5 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 2016-08-24
- **Case number:** Criminal Appeal Nos. 805-806 of2016
- **Bench:** Dipak Misra, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-haryana-v-ram-mehar-others-etc-etc-31330
- **Pages:** 32

## Headnote

Code of Criminal Procedure, 197 3: s.311 - Scope and ambit
of - Petition by accused u/s. 311 for recalling of witnesses - Trial
court held that when the material questions had already been put,
there was no point to entertain the application and mere change of
the counsel could not be co11sidered as a grou11d to allow the
application for recalling the witnesses for fi1rther cross-examinatio11
- Petitio11 uls.482 011 the ground that the leadi11g.counsel for defe11ce
was critically ill during the trial and certain important questio11S,
suggestions with respect to i11dividual roles a11d i11juries sustai11ed
and the weapon used etc. had not been put to the wit11esses - High
Court, allowed the petitions holding that a case for recalli11g was
made out to ensure grant of fair opportunity to defend and uphold
the concept of fair trial - On appeal, held: Jn the case at hand, the
prosecution had examined all the witnesses - The statements of all
the accused persons, that is 148 i11 11u111ber. had been recorded uls.
313 - The defence had exami11ed 15 witnesses - Number of lawyers
were e11gaged by the defence - The accused persons had e11gaged
counsel of their choice - Jn such a situation recalling of witnesses
indubitably cannot form the foundation - High Court was persuaded
by the submission that recalling of witnesses and their crossexamination would not take much time and that apart, the crossexamination could be restricted to certai11 aspects - Jn this regard,
High Court 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 - This kind of plea in a case of this nature and at this
stage could not have been allowed to be entertained.
Natura/justice: Fair trial-Held: 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 can claim absolute
172
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
173
predominance over the other.
A
Allowing the appeals, the Court
HELD: 1. The concept of the fair trial is not rigid and there
cannot be any strait-jacket formula for applying the same. On
occasions it has the necessary flexibility. 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. There should be passion for doing
justice but it must be coinmanded by reasons and not propelled
by any kind of vague instigation. It would be dependent on the
fact situation; established norms and recognized principles and
eventual appreciation of the factual scenario in entirety. 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. [Para 24)[191-D-H]
Bablu Kumar and others v. State of Bihar and another .
2015 (8) SCR 512 : (2015) 8 SCC 787; Sidhartha
Vashisht alias Manu Sharma v. State (NCT of Delhi)
2010 (4) SCR103: (2010) 6 SCC 1; State of Karnataka
v. K. Yarappa Reddy 1999 (3) Suppl. SCR 359 : (1999)
8 SCC 715; J. Jayala!ithaa and others v. State of
Karnataka and others (2014) 2 SCC 401 - relied on.
2. Recalling of witnesses as envis11ged u/s.311 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 are
not acceptable in the obtaining factual matrix. The decisions

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[2016] 5 S.C.R. 172
STATE OF HARYANA
v.
RAM MEHAR & OTHERS ETC. ETC.
(Criminal Appeal Nos. 805-806 of2016)
AUGUST 24, 2016
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 197 3: s.311 - Scope and ambit
of - Petition by accused u/s. 311 for recalling of witnesses - Trial
court held that when the material questions had already been put,
there was no point to entertain the application and mere change of
the counsel could not be co11sidered as a grou11d to allow the
application for recalling the witnesses for fi1rther cross-examinatio11
- Petitio11 uls.482 011 the ground that the leadi11g.counsel for defe11ce
was critically ill during the trial and certain important questio11S,
suggestions with respect to i11dividual roles a11d i11juries sustai11ed
and the weapon used etc. had not been put to the wit11esses - High
Court, allowed the petitions holding that a case for recalli11g was
made out to ensure grant of fair opportunity to defend and uphold
the concept of fair trial - On appeal, held: Jn the case at hand, the
prosecution had examined all the witnesses - The statements of all
the accused persons, that is 148 i11 11u111ber. had been recorded uls.
313 - The defence had exami11ed 15 witnesses - Number of lawyers
were e11gaged by the defence - The accused persons had e11gaged
counsel of their choice - Jn such a situation recalling of witnesses
indubitably cannot form the foundation - High Court was persuaded
by the submission that recalling of witnesses and their crossexamination would not take much time and that apart, the crossexamination could be restricted to certai11 aspects - Jn this regard,
High Court 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 - This kind of plea in a case of this nature and at this
stage could not have been allowed to be entertained.
Natura/justice: Fair trial-Held: 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 can claim absolute
172
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
173
predominance over the other.
A
Allowing the appeals, the Court
HELD: 1. The concept of the fair trial is not rigid and there
cannot be any strait-jacket formula for applying the same. On
occasions it has the necessary flexibility. 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. There should be passion for doing
justice but it must be coinmanded by reasons and not propelled
by any kind of vague instigation. It would be dependent on the
fact situation; established norms and recognized principles and
eventual appreciation of the factual scenario in entirety. 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. [Para 24)[191-D-H]
Bablu Kumar and others v. State of Bihar and another .
2015 (8) SCR 512 : (2015) 8 SCC 787; Sidhartha
Vashisht alias Manu Sharma v. State (NCT of Delhi)
2010 (4) SCR103: (2010) 6 SCC 1; State of Karnataka
v. K. Yarappa Reddy 1999 (3) Suppl. SCR 359 : (1999)
8 SCC 715; J. Jayala!ithaa and others v. State of
Karnataka and others (2014) 2 SCC 401 - relied on.
2. Recalling of witnesses as envis11ged u/s.311 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 are
not acceptable in the obtaining factual matrix. The decisions
which have used the words that the court should be magnanimous,
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
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174.
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SUPREME COURT REPORTS
[2016] 5 S.C.R.
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. In the case at hand, the prosecution had examined
all the witnesses. 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. 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, 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 discrep_ancies; and also to be given certain
suggestions. This kind of plea in a case of this nature and at this
stage could not have been allowed to be entertained. [Para
35][202-B-H; 203-A-BJ
Mohan/al Shamji Soni v. Union of India and another
AIR 1991 SC 1346 : 1991 (1) SCR 712 ; Rameshwar
Dayal and others v. State of Uttar Pradesh 1978 (3)
SCR 59 : (1978) 2 SCC 518; State of West Ben~al v.
Tulsidas Mundhra (1963) 2 SCJ 204; Jamatraj Kewalji
Govani v. State of Maharashtra AIR 1968 SC 178 :
1967 SCR 415; Rajendra Prasad 1i Narcotic Cell 1999
(3) SCR 818 : (1999) 6 SCC 110; U. T. of Dadra &
Nagar Haveli and another v. Fatehsinh Mohansinh
Chauhan 2006 (4) Suppl. SCR 522 : (2006) 7 SCC
529 - relied on.
3. The exercise of power .u/s.311 CrPC can be sought to be
invoked either by the prosecution or by the accused persons or
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
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. 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 he struck. The High Court has fallen into absolute
error in axing the order passed by the trial Judge. (Para 38] (203C-F]
Rajaram Prasad Yadav v. State of Bihar and another
2013 (7) SCR 420 : (2013) 14 SCC 461; Vinod Kumar
v. State of Punjab 2015 (1) SCR 504 : (2015) 3 SCC
220;
Gurnaib Singh v. State of Punjab 2013 (3)
SCR563 : (2013) 7 SCC 108 - relied on.
Hoffman Andreas v. Inspector of Customs Amritsar
(2000) 10 SCC 430; P. Chhaganlal Daga v. M Sanjay
Shaw (2003) 11 SCC 486; P. SaY!jeeva Rao v. State of
Andhra Pradesh 2012 (6) SCR 787 : (2012) 7 SCC
56; Natasha Singh v. Central Bureau of Investigation
(State) 2013 (5) SCR 539 : (2013) 5 SCC 741; State
(NCT of Delhi) v. Shiv Kumar Yadav and another 2015
(10) SCR 455 : (2016) 2 SCC 402; Maneka Sanjay
Gandhi and another v. Rani Jethmalani 1979 (2) SCR
378 : (1979) 4 SCC 167; Ram Chander v. State of
Haryana 1981 (3) SCR 12 : (1981) 3 SCC 191;
Sessions Judge, Ne/lore v. Intha Ramana Reddy 1972
Cri LJ 1485; Rattirmi1 and others v. State of Madhya
Pradesh 2012 (3) SCR 496 : (2012) 4 SCC 516 -
referred to.
Case Law Reference
(2000) 10 sec 430
(2003) 11 sec 486
2012 (6) SCR 787
referred to
Para 9
referred to
Para 9
referred to
Para 9
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SUPREME COURT REPORTS
[2016] 5 S.C.R.
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2013 (5) SCR 539
referred to
Para9
2015 (10) SCR 455
referred to
Para9
1979 (2) SCR 378
referred to
Para 17
1981 (3) SCR 12
referred to
Para 19
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1972 Cri LJ 1485
referred to
Para 19
2012 (3) SCR 496
referred to
Para 21
(2014) 2 sec 401
relied on
Para 22
2015 (8) SCR 512
relied on
Para23
c
2010 (4) SCR103
relied on
Para23
1999 (3) Suppl. SCR 359
relied on
Para23
1991 (1) SCR 712
relied on
Para26
1978 (3) SCR 59
relied on
Para27
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(1963) 2 SCJ 204
relied on
Para 27
1967 SCR 415
relied on
Para 27
1999 (3) SCR 818
relied on
Para28
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2006 (4) Suppl. SCR 522
relied on
Para30
2013 (7) SCR 420
relied on
Para 31
2015 (1) SCR 504
relied on
Para35
2013 (3 ) SCR 563
relied on
Para36
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 805-806 of2016.
From the Judgment and Order dated 09.03.2016 of the High Court
of Punjab and Haryanaat Chandigarh in CRM-MNo. 482 of2016 and
in CRM-M No. 484 of2016.
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Tushar Mehta, ASG, Vikas Pahwa, Sr. Adv.,Alok Sangwan, AAG,
Astha Sharma, Aditya Dogra, Dr. Monika Gusain, Advs. for the
Appellant.
R. S. Cheema, Ms. Rebecca John, Sr. Advs., Ms. Vrinda Grover,
Tarannum Cheema, Harsh Bora, Ratna, Sanjay Jain, Advs. for the
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Respondents.
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC., 177
The Judgment of the Court was delivered by
DIPAK MISRA, J. ( Present appeals, by special leave, assail
the order dated 09.03.2016 passed by the High Court of Punjab and
Haryana at Chandigarh in CRM-M No. 482 of 2016 and CRM-M No.
484of2016 whereby the learned single Judge in exercise of the power
under Section 482 of the Code of Criminal Procedure (for short "CrPC")
has annulled the order of the learned First Additional Sessions Judge,
Gurgaon passed on 16.12.2015 wherein he had rejected the prayer of
the accused persons seeking recall of the witnesses under Section 311
read with Section 231(2) CrPC.
2. To appreciate the controversy that has emanated in these
appeals, it is obligatory to state tlie facts in brief. The prosecution case
before the trial court is that on 18.07.2012 about 7 p.m. the accused
persons being armed with door beams and shockers went upstairs inside
MI room of the Manesar Factory of Maruti Suzuki Limited, smashed
the glass walls of the conference room and threw chairs and table tops
towards the management officials, surrounded the conference hall from
all sides and blocked both the staircases and gave threats of doing away
with the lives of the officials present over there. As the allegations of
the prosecutiori further unfurl, the exhortation continued for quite a length
of time. All kind of attempts were made to bum alive the officials of the
management. During this pandemonium, the entire office was set on
fire by the accused persons and the effort by the officials to escape
became an exercise in futility as the accused persons had blocked the
staircases. The police officials who arrived at the spot to control the
situation were assaulted by the workers and they were obstructed from
going upstairs to save the officials. Despite the obstruction, the officials
were saved by the police and the fire was brought under control by the
fire brigade. In the incident where chaos was the sovereign, Mr. Avnish
Dev, General Manager, Human Resources of the Company was burnt
alive. The ~aid occurrence led to lodging of FIR No. 184/2012 at Police
Station Manesar. After completion of the investigation, the police filed
charge sheet against 148 workers in respect of various offences before
the competent court which, in tum, committed the matter to the court of
session and during trial the accused persons were charged for the
offences punishable under Sections 147/ 148/ 149/ 452/ 302/ 307/ 436/
323/ 332/ 353/ 427/ 114/ 20 II I 20B/ 34/ 325/ 381 & 382 IPC.
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3. The evidence of the prosecution commenced in August, 2013
and was concluded on 02.03.2015. Recording of statements of the
accused persons under Section 313 CrPC was concluded by 13.04.2015.
After the statements under Section 313 Cr PC were recorded, the defence
adduced its evidence by examining number of witnesses. Be it noted,
when an application for bail was filed before the trial court and it was
rejected upto the High Court, some accused persons moved this Court
by filing Special Leave Petition (Criminal) Nos. 9881-9882 of2013 and
this Court on 17.02.2014 passed the following order:-
"On 3.2.2014, this Court had directed learned counsel for
the State of Haryana to inform the Court as to how many
witnesses, the State proposes to examine and approximately
how much time it will take. Mr. K.T.S. Tutsi, learned
senior counsel appearing on behalf of the State, has
informed the Court that as of today, the prosecution
wishes to examine total 186 witnesses, out of which 92
are eye-witnesses. However, as presently advised, the
prosecution wants to examine only 23 eye witnesses. Two
of the eye witnesses have already been examined.
Therefore, 21 more eye-witnesses have to be examined.
In view of this statement, we do not propose to pass
any order on the bail application filed by the petitioner. We
feel that it would be appropriate to give directions to the
learned Sessions Judge to dispose of the trial as
exped!tiously as possil:>l.e.
We are informed that in a
month, only one or two days are assigned by the learned
Sessions Judge to this case. We are aware of the pressure
under which the learned Sessions Judge is working.
However, considering the peculiar nature of the offence
and the number of persons involved in this case, we feel
it would be in the interest of justice to expedite
examination of eye witnesses and for that to take up the
matter on day to day basis, if required. We direct the
learned Sess.ions Judge to examine all the eye-witnesses
by30.4.2014. Needlesstosaythatit will be open tothe
petitioner to prefer a bail application the after eyewitnesses are examined. We make it clear that on the
merits of the petitioner's case, we have expressed no
opinion."
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
[DIPAK MISRA, J.]
4. To continue the narrative in chronology, on 13.02.2015, Salil
Bihari Lal, PW-8, was recalled for further examination and on 20.02.2015,
DSP Om Prakash, PW-99, was recalled. On the same day, the prosecution
concluded its evidence. As has been indicated earlier, the statements of
the accused persons under Section 313 CrPC were recorded and
thereafter the defence examined fifteen witnesses.
5. When the matter stood thus, on 30.11.2015, two petitions under
Section 311 CrPC were filed by different accused persons. In the first
petition filed by Ram Mehar and others, recall was sought of Vikram
Verma, PW-I, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3,
Birendra Prasad, PW-5, Salil Bihari Lal, PW-8, Vikram Sarin, PW-I 0,
Deepak Anand, PW-29 and DSP Om Prakash, PW-99. In respect of
DeepakAnand, PW-29, it was stated that he was required to be recalled
to establish that he is not a reliable witness. As regards Vikram Verma,
PW-1, Vikram Khazanchi, PW-2, Pradeep Kumar Roy, PW-3, Birendra
Prasad, PW-5, Salil Bihari Lal, PW-8 and Vikram Sarin, PW-10, it was
averred that they are required to be recalled in order to prove the manner
and circumstances pertaining to how the incident took place. That apart,
it was stated, certain important questions and suggestions pertaining to
the injuries received by the prosecution witness and other persons were
also required to be put to them. With regard to DSP Om Prakash, PW99, it was asserted that recalling of the said witness was required to
enable the accused μersons to put forth certain aspects of the investigation,
particularly_\\'.jth regard to the type of weapons used and injuries allegedly
caused to various prosecution witnesses and other persons. We think it
appropriate to reproduce what further has been stat~d in the application:-
"6. That the cross-examination proposed to be undertaken
by the defence will be limited to the aspect of injuries
sustained by different witnesses and other persons, as well
as the weapons of offence used, besides suggestions that
specifically refute the sequence of events and roles ascribed
to the accused etc.
7, That the accused persons undertake to conclude the
cross-examination of these witnesses on the dates on which
they appear, or such further dates as decided by this Hon 'ble
Court.
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8. That it may be worthwhile to mention here that due to
the nature of the case and the lack of individual
representation to the 148 accused persons, much of the
cross-examination was composite in nature and in the
process, certain important questions and suggestions with
respect to their individual roles and allegations, could not be
satisfactorily put to the prosecution witnesses in question.
9. That the trial was essentially conducted by Sh. R.S.
Hooda, Advocate, who was sufferingfrom a critical illness
throughout the trial, and on numerous occasions, despite
his valiant effort and intentions, the above aspects were
inadvertently missed out. The final arguments will now be
conducted by a fresh team of Senior Lawyers, who have
had occasion to examine the record and are therefore
desirous of correcting certain inadvertent errors that may
have crept into the defence of the accused.
10. That these aspects are extremely relevant and germane
to the defence of the accused, and a denial of opportunity
to further cross-examine the witnesses on these aspects
would amount to a denial of the right to a fair trial.
11. That vide the present application; the Applicants are not
seeking to raise any fresh grounds in defence, but merely
correct certain errors committed during cross-examination,
and as such this does not amount to the filing up of any
lacunae in the defence."
6. After making such assertions, the petitioners therein proceeded
to state the law laid down by this Cour.t in the context of Section 311
CrPC.
7. In the second application filed by Kishan Kumar and others for
recalling of witnesses, namely, Shobhit Mittal, PW-7, Rajeev Kaul, PW14, Sri Niwasan," PW-22 and Umakanta T.S., PW-28, the assertions were
almost the same apart from some additional ground which we think
appropriate to r@produce:-
"7. That the trial was eS'sentially conducted by Sh. R. S.
Hooda, Advocate, who was suffering from a critical illness
throughout the trial, and on numerous occasioJlS, despite
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
[DIPAK MISRA, J.]
his valiant efforts and intentions, the above aspects were
inadvertently missed out. The final arguments will now be
conducted by a fresh team of senior lawyers, who have
had occasions to examine the record, ·and are therefore,
desirous of correcting certain inadvertent errors that may
have crept into the defence of the accused.
8. That these aspects are extremely relevant and germane
to the defence of the accused, and a denial of opportunity
to further cross-examine the witnesses on these aspects
would amount to a denial of the right to a fair trial.
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9. That vide the present application, the Applicants are not
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seeking to raise any fresh grounds in defence, but merely
correct certain errors committed during cross-examination,
and as such this does not amount of filing up of any lacuna
in the defence."
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8. The learned trial Judge noted the contentions advanced by the
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learned counsel for the defence and the prosecution and observed that:-
"7. The present application has been moved at a vezy belated
stage at a time when I 02 prosecution witnesses have already
been examined during this trial in which larger number of
148 accused are involved and they have been examined
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way back as prosecution evidence was concluded on 2.3.1 S.
Long time was consumed for recording the statements of
the accused under section 313 Cr.P.C. and forthe last more
than six months, the case is being adjourned for recording
the defence evidence and in this regard number of
opportunities have been availed by the .defence and IS
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defence witnesses have been examined so· far. At this·
juncture it may be recalled that Hon'ble Supreme Court
has directed this court to decide this trial expeditiously.
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9. Nothing has been explained as to what are the left out
questiqns and how the questions already put to the said
witnesses created inroad into the defence of the said
accused. In para 3 of the application, it is stated that the
manner and circumstances as to how the incident took place
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[2016] 5 S.C.R.
and further the questions pertaining to weapons used and
the injuries to the said witnesses and to others are certain
other questions, which are to be put to them. A perusal of
the statements of the aforesaid four witnesses clearly reveal
that they have been cross examined at length and there is
nothing that defence counsel faltered by not putting relevant
questions to them. Putting it differently it is not a case of
giving walk over by the defence to the prosecution witnesses
by not properly conducting the cross examination. It is rightly
argued by learned PP that if the present application is
allowed then there will be no end of moving such applications
and who knows that another changed defence counsel may
come up with similar sort of application stating that the
previous defence counsel inadvertently could not put material
questions. It may be recalled that the present applicants
are in custody but that does not mean that they cannot move
the application to delay the trial which has already been
delayed considerably. The defence has already availed
numerous opportunities. This court in order to ensure the
fair trial allowed the successive applications moved by the
defence to examine the witnesses to support their respective
pleas. An old adage of a fair trial to accused does not
mean that this principle is to be applied in favour of accused
alone but this concept will take in its fold the fairness of
trial to the victim as well as to the society. The court being
neutral agency is expected to be fair to both the parties and
its duty is also to ensure that the process oflaw is not abused
by either of them for extraneous reasons. The speedy trial
is essence of justice but such like applications like the present
one should not come in the way of delivery of doing complete
and expeditious justice to both the parties."
9. Aft~r so stating, the learned trial Judge referred to the authorities
in Hoffman Andreas v. Inspector of Customs Amritsar1, P.
Chhaganlal Daga v. M. Sanjay Shaw1, P. Sanjeeva Rao v. State of
Andhra Pradesh-', Natasha Singh v. Central Bureau of Investigation
1 (2000J 1 o sec 430
2 (2003 l 11 sec 486
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'(2012) 1sec56
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
[DIPAK MISRA, J.]
(State)' and State (NCT of Del/ti) v. Sit iv Kumar Yadav and another'
and came to hold that when the material questions had already been put,
there was no point to entertain the application and mere change of the
counsel could not be considered as a ground to allow the application for
recalling the witnesses for the purpose of fmiher cross-examination. It
is worthy to note that two separate orders were passed by the trial court
but the analysis is almost the same.
I 0. Dissatisfied with the aforesaid orders, the accused persons
prererred CRM-M No. 482of2016 and CRM-M No. 484 of 2016 before
the High Court under Section 482 CrPC. The High Court took note of
the common ground that the leading counsel for the defence was critically
ill during the trial and due to inadvertence, certain important questions,
suggestions with respect to the individual roles and allegations against
the respective accused persons, the injuries sustained by the witnesses,
as well as the alleged weapons of offence used, had not been put to the
said witnesses. It also took note of the fact that the senior lawyer had
been engaged at the final stage and such inadvertent errors were
discovered by him and they needed to be rectified in order to have a
meaningful defence and a fair trial.
11. The High Court thereafter adverted to the contentions raised
by the learned counsel for the petitioners therein, analysed the grounds
of rejection that formed the bedrock of the order passed by the trial
Judge, referred to certain decisions by this Court including the recent
decision in Sltiv Kumar Yadav (supra) and came to hold that a case for
recalling had been made out to ensure grant of fair opportunity to defend'
and uphold the concept of fair trial. It further expressed the view that
when 148 accused persons are facing trial together, wherein the
prosecution has examined I 02 witnesses regarding different roles,
weapons and injuries attributed to various accused qua various victims
on the day of occurrence stretched over a period of time within a huge
area of factory premises, does raise a sustainable inference that there
was confusion during the conduct of the trial leading to certain inadvertent
omissions and putting proper suggestions on material aspects, which are
crucial for the defence in a trial, inter alia, for an offence under Section
302 IPC, although the accused were represented by battery of lawyers
with Sh. R.S. Hooda, Advocate being the lead lawyer. The High Court
'(2013) s sec 741
'(2016) 2 sec 402
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proceeded to opine that the accused-petitioners were charged with
heinous offences including one under Section 302 IPC and recalling is
not for the purpose of s~tting up a new case or make the witnesses tum
hostile but only to have a proper defence as it is to be judicially noticed
that for lack of proper suggestions by the defence to the prosecution
witnesses, the trial courts at times tend to reject the raised defence on
behalf of the accused. It was observed that some of such omissions and
suggestions by way of illustration had been spelt out in the body of the
petitions and some had been'-stated to be withheld for avoiding any
prejudice to the defence, nevertheless the stated purpose was not to
render the prosecution witnesses hostile to the case of prosecution and,
therefore, such inadvertent omissions and lack of suggestions deserve
to be accepted to be bonafide and constituting a valid reason requiring
the approach of the Court to be magnanimous in permitting such mistakes
to be rectified, more so when the prosecution, concededly, were permitted
twice to lead additional evidence by invoking the provisions under Section
311 Cr.PC on no objection of the defence, after the closure of the
prosecution evidence. Thereafter, what the High Court expressed is
seemly to reproduce:-
"The accused-petitioners are in custody and having nothing
to gain from delaying the trial. The reasons assumed for
declining the recalling in the impugned order dated
16.11.2015 (P-1) are clearly is conceived and thus vitiated.
It is apparent from the provisions of Section 311 Cr.PC as
interpreted by the Courts that the exercise of the power to
recall is not circumscribed by the stage at which such a
request is made but is guided by what is essential for the
just decision of the case. No doubt speedy trial is essential
in cases involving heinous crimes, however, nothing has been
shown on record that the Hon'ble Supreme Court has
specifically laid down a date by which the trial is mandated
to be concluded. The order at P-8 is only in the context of
the right of the accused to seek bail. The reliance by the
trial Court on AG Vs. Shiv Kumar Yadav s case (supra)
and Nisar Khan v. State case, (2006) 9 SCC 386, is also
misplaced in the facts of the present cases. In the first
case, the trial was for offence of rape and the defence was
seeking the recall of all the prosecution witnesses amounting
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
[DIPAK MISRA, J.]
almost to a denovo trial without any regard to the harassment
and plight of the young vi~tim. In the latter case, the defence
had succeeded in its purpose of turning the already examined
witnesses to be hostile to the case of prosecution by recalling
them after a period of one year. In the present case the
facts are clearly distinguishable as aforesaid."
12. On the basis of the aforesaid reasoning, the High Court allowed
the petitions and set aside the impugned orders and directed as follows:-
" ... in case the learned trial Court during the- cross
examination of the such recalled witnesses is of the opinion
that such opportunity is being misused to make the witnesses
resile from their earli_er testimonies, in that eventuality the
trial Court would be at full liberty to put a stop to that effort."
13. We have referred to the contents of the applications, delineation
by the trial court and the approach of the High Court under Section 482
CrPC in extenso so that we can appreciate whether the order passed by
'the High Court really requires to be unsettled or deserves to be assented
to.
14. Mr. Tushar Mehta, learned Additional Solicitor General
appearing for the appellant-State ofHaiyana, criticiJ:ing the order of the
High Court, submits that Section 311 CrPC despite its width and broad
compass can only be made applicable keeping in view the factual score
of the case and not to be entertained in a routine manner. It is his
contention that the High Court has been wholly misguided by the idea of
fair trial and the concept of magnanimity of the court without really
remaining alive to the factual matrix of the case at hand. The concept
of"fair trial", submits Mr. Mehta, cannot be stretched too far to engulf
situations which the said conception really does not envisage. Additionally,
it is argued by him, neither the plea taken with regard to illness of earlier
counsel nor the accused persons being in custody can constitute legitimate
grounds for exercise of jurisdiction under Section 311 Cr PC.
15. Mr. R.S. Cheema, learned senior counsel along with Mr. San jay
Jain, learned counsel appearing for the respondents in his turn has
emphasized basically on four aspects, namely, a fair trial is a facet of
Article 21 of the Constitution and the principles of its applicability should
not be marginalized; that Section 311 CrPC confers enormous powers
on the court for grant of permission for recalling of witnesses so that in
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the ultimate eventuality justice is done and injustice in any form is avoided
and for the said purpose, the stage of the trial may be an aspect to be
taken into consideration in certain cases but cannot be regarded as the
sole governing factor to deny the prayer for recall; that when the prayer
was confined for recalling of small number of witnesses because of
critical illness of the defence counsel who was not in a position to put all
relevant questions to the accused persons, there was no justification to
refuse the prayer of recall of witnesses; and that when the accused
persons are already in custody the question of prolonging and
procrastinating the trial by adopting dilatory tactics does not arise.
Learned senior counsel would further submit that the High Court has
passed a guided order and the accused persons are bound by it and they
do not intend to take more than a day or two for the purpose of further
cross examination and thus, there is no warrant on the part of this Court
in exercise of power under Article 136 of the Constitution of India to
interfere with the impugn order.
16. 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 emphasized on the fundamental
conception of fair trial as the majesty of law so commands.
17. A three-Judge Bench speaking through Krishna Iyer, J. in
Maneka Sanjay Gandhi and another v. Rani Jethma/ani6, though in
a different context, observed:-
" 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
hyperscnahivity 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 I 0 case. We have to lest the petitioner's grounds on
this touchstone bearing in mind the rule that normally the
• (1979) 4 sec 167
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
[DIPAK MISRA, J.]
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 ofj ustice
should not harass the parties and from that angle the court
may weigh the circumstances."
18. 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 ~nd 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.
19. In Ram Chander v. State of Haryana 7, while speaking about
the presidingjudge in a criminal trial, Chinnappa Reddy, J. observed that
if a criminal court is to be an effective instrument in dispensingjustice,
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. Intlla Ramana Reddy" which reads as follows:-
"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. The record of the proceedings of the Committing
Magistrate may also be perused by the Sessions Judge to
further aid him in the trial."
, (1981) 3 sec 191
' 1972 Cri LJ 1485
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20. 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 and others v. State of Madhya Prades/1 9
B
speaking on fair trial the Court opined that:-
" ... 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
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injustice, prejudice, dishonesty and favouritism."
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In the said case, it has further been held:-
"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 Mangat
Singh v. Kishan Singh' 0 wherein it has been observed
thus: (SCC p. 307, para 14)
"14 . ... Any inordinate delay in conclusion ofa 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, 110 reason to give all
the benefits 011 account of the delay in trial to the
accused and to completely deny all justice to the
victim of the offence."
(Emphasis supplied)
61. lt is worth noting that the Constitution Bench in Iqbal
G
Singh Marwah v. Meenakshi Manrah" (SCC p. 387,
para 24) though in a different context, had also observed
that delay in the prosecution of a guilty person comes to
• (2012) 4 sec 516
'" (2009) 11 sec 303
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" (2005) 4 sec 370
STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC.
189
[DIPAK MISRA, J.]
his advantage as witnesses become reluctant to give
A
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.
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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 j'urisprudence; 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."
22. In J. Jayalalitflaa and others v. State of Kamataka a11d
ot/1ers12 it has been ruled that 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
.;
"(2014) 2 sec 401
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of the society.