While making the legal position very clear, the Delhi High Court has just recently on September 15, 2021 in a learned, laudable, landmark and latest judgment titled Sushil Ansal vs State of NCT Delhi in CRL.M.C. 2107/2021 and CRL.M.A.No.14182/2021 made it clear that a mere change of counsel would not suffice to recall witnesses to put certain suggestions in the manner the new counsel desires. In the fitness of things, while rejecting an application under Section 311 of CrPC, Justice Yogesh Khanna observed that since considerable delay has taken place, the victim’s plight also cannot be ignored while making a decision. It also must be taken into account that Justice Yogesh placed emphasis on the conscious decision of the former counsel to not examine the said victim referring to a catena of judicial precedents.
To start with, this brief, brilliant and balanced judgment that was conducted through video conferencing by a single Judge Bench of Delhi High Court comprising of Justice Yogesh Khanna sets the ball rolling by first and foremost observing in para 1 that, “This petition challenges the impugned order dated 02.09.2021 passed by the learned Trial Court in case FIR No.207/2016 registered at police station Tilak Marg titled State vs Dinesh Chand Sharma whereby an application of the petitioner under Section 311 Criminal Procedure Code (hereinafter referred as Cr P C) was dismissed.”
On the one hand, the Bench then states in para 3 that, “It is the submission of the learned senior counsel for the petitioner initially the charge sheet was filed against Dinesh Chand Sharma, the Ahlmad of the Court against whom there were allegations of tempering and missing of the Court record, but later on supplementary charge sheets was filed. The second supplementary charge sheet was filed by DCP Amit Roy (PW38) but the petitioner was never arrayed as an accused by him and it was only in third supplementary charge sheet prepared and filed by Inspector R.S. Chauhan, the petitioner herein was summoned as an accused. Investigating Officer Inspector R S Chauhan who had charge sheeted the petitioner has since expired, hence it is argued PW38 is the only Investigating Officer, who needs to be cross examined as to the seizure of such tempered documents and qua conspiracy. It is also submitted if the petitioner is allowed to cross examine PW38, it shall not cause any prejudice to the prosecution. It is further argued PW38 is a material witness as various documents relating to the petitioner were seized by him and even otherwise it is the duty casted upon the Court to safeguard the accused and allow him to examine and cross-examine the witnesses per Section 165 of the Indian Evidence Act. It is also submitted petitioner is 84 years of age and could not properly comprehend as to if the cross examination of PW38 was essential for the just decision of the case.”
On the other hand, the Bench then discloses in para 7 that, “The learned senior counsel for the State submitted the argument of the petitioner is nothing but a ploy to further delay the matter. He argued PW38 was examined in detail and his examination rather continued for 15 months running into 27 pages. He was cross examined by each accused except the present petitioner, to whom also an opportunity was granted, but his learned counsel Mr. Siddharth Kashyap made a conscious decision by choosing not to cross examine PW38.”
To put things in perspective, the Bench then envisages in para 8 that, “Looking on the aspect of delay I may say though the present FIR was registered in the year 2006, yet the petitioner was summoned on 15.02.2008 on filing of 3rd supplementary chargesheet, which order dated 15.02.2008 was though challenged, but his revision petition was dismissed on 03.09.2009. The matter was then listed for framing of charge yet it could not be framed till the year 2014. Yet again revision was filed against charge but on 12.05.2017 such revision petition was also dismissed. On 05.03.2018 in W.P.(Crl) No.243/2018 a direction was rather issued to the learned Trial Court for expeditious trial and to pronounce the judgment by 30.11.2018. Admittedly, it was not done. Yet again on 04.12.2018 another direction was issued in that very petition to fix three dates of hearing per week and to conduct the trial in a time-bound manner. Per order dated 06.02.2020 passed by this Court in WP(Crl) No.243/2018 the matter is being monitored by this Court. In the light of above facts, we need to see the intention to file such application under Section 311 Cr P C at a deeply belated stage.”
To be sure, the Bench then adds in para 9 that, “Some more dates are relevant. Admittedly, the prosecution evidence was closed on 06.04.2021. Defence evidence was closed on 25.08.2021; and final arguments started w.e.f. 27.08.2021. The prosecution argued the matter on 27.08.2021, 31.08.2021, 02.09.2021 and 03.09.2021 and thereafter the defence arguments of accused namely Dinesh Chand Sharma and other two accused started on 04.09.2021, 06.09.2021, 07.09.2021 and 08.09.2021 and matter is still being argued. It was when the final arguments had started, this application was moved.”
As it turned out, the Bench then enunciates in para 10 that, “To appreciate the concern of the petitioner, one needs to see as to what is the cause for the petitioner to move this application under Section 311 Cr P C. The petitioner has filed an application to cross-examine the Investigating Officer on specific allegations of conspiracy by putting certain suggestions and to bring his attention to various material in the forms of statements under Section 161 Cr PC recorded by the main Investigating Officer and towards various necessary documents to be collected or deliberately omitted from being placed on record.”
Be it noted, the Bench then hastens to add in para 11 that, “Needless to say, the power under Section 311 Cr PC is to be exercised for strong and valid reasons. One cannot claim any parity in deciding of an application under Section 311 Cr PC, hence order dated 16.03.2021 of this court in Crl.M.C.865/2021 is of no use to the petitioner herein. Even otherwise Crl.M.C.865/2021 notes the said application under Section 311 Cr PC. was moved when the prosecution evidence was still going on and it was admittedly prior to closure of prosecution evidence, but, whereas the present application is filed when final arguments had started. It was at this stage, a new counsel was appointed in the matter and he thought of cross-examining the Investigating Officer PW38 by putting him certain suggestions, hence prayer to recall him.”
Quite rightly, the Bench then points out in para 12 that, “Admittedly, PW38 on the basis of documents filed/seized by him never considered the petitioner an accused and probably of this reason, the erstwhile counsel did not prefer to cross examine him. It appeared to be a conscious decision of the learned counsel for the petitioner, considering the nature of evidence against him. Not to repeat, his counsel Mr. Siddharth Kashyap did not cross examine as many as 18 witnesses viz., he rather adopted the cross examination by other counsels qua PW7, PW30 and PW32 and preferred not to cross examine PW3, PW4, PW5, PW9, PW12, PW15, PW18, PW22, PW34, PW35, PW36, PW37, PW38, PW39 and PW40. Thus, to recall PW38 to put suggestions to him as his earlier learned counsel failed to do so cannot be considered a valid ground for exercise of discretion under Section 311 Cr P C, especially, in the wake of delay referred to above. Further no necessary documents as alleged in para 10 above were brought in defence evidence either by the petitioner.”
While citing the relevant case law, the Bench then brings out in para 13 that, “In State (NCT of Delhi) vs Shiv Kumar Yadav & Another (2016)2 SCC 402 the Court held as follows:-
“11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court e before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case.””
It is worth noting that the Bench then while mentioning yet another relevant case law remarks in para 14 that, “In State of Haryana vs Ram Mehar (2016) 8 SCC 136 the Court has held:-
“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. 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.
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. xxx Hence, we reiterate the necessity of doctrine of balance.””
While citing yet another relevant case law, the Bench then underscores in para 15 that, “In Girish vs State of UP 2020 SCC OnLine All 1063 and in Veerendradas Bairagi vs Shreekant Bairagi 2019 SCC OnLine MP 7006 the Court held the subsequently engaged counsel cannot seek one more opportunity as a matter of right to further delay the matters. Rather the court held :-
“9. In the present case, it appears from the application filed under section 311, Cr.P.C. that request for re-examination has been made solely on the ground that Senior Counsel has been engaged in place of a Junior Counsel as the Junior Counsel, according to the petitioner, has not conducted the cross-examination of witnesses in an effective manner. However, in the light of the legal position, as discussed above, it is certainly not within the scope of section 311 Cr.P.C. to countenance such a prayer. No illegality or perversity has been committed by the trial Court in passing the impugned order.””
Finally and far most significantly, the Bench then holds in para 16 that, “Thus the consistent view of this Court is a mere change of counsel would not suffice to recall witness to put certain suggestions in the manner, the new counsel desires. The petitioner had engaged earlier counsel of his choice. He made a decision not to cross-examine, not one but 18 witnesses, probably, because the petitioner is facing charge of conspiracy only, and hence such decision viz not to cross-examine 18 witnesses cannot be said to an inadvertent act but may be a part of his strategy. Since considerable delay has taken place, the plight of victim, also cannot be ignored. The petition being devoid of merits is thus dismissed. Pending application, if any, also stands disposed of.”
In conclusion, we thus see that the Delhi High Court has made the picture pretty clear on the key issue of whether a mere change of counsel can be a ground to recall witnesses. We thus see that the single Judge Bench of Justice Yogesh Khanna of Delhi High Court has rightly rejected an application under Section 311 of the CrPC. Justice Yogesh thus has also made it abundantly clear that a mere change of counsel would not suffice to recall witnesses to put certain suggestions in the manner the new counsel desires.
Sanjeev Sirohi