Case Note & Summary
The applicant, Jaideo s/o Jagdish Sajjal, was an accused in Sessions Trial 42 of 2020 before the Sessions Judge, Gadchiroli, charged with murdering his wife by setting her afire under Section 302 of the Indian Penal Code. He was in custody and unable to afford a private lawyer, so he was provided legal aid counsel. The prosecution examined 15 witnesses between 31 August 2020 and 4 December 2020. The legal aid counsel cross-examined witnesses PW-1 to PW-14. On 5 December 2020, the accused filed an application under Section 311 of the Code of Criminal Procedure, 1973 (CrPC) seeking recall of those witnesses, stating that because he was in jail, he could not meet his earlier counsel to furnish necessary instructions, and as a result, important facts were not brought on record through cross-examination. He had since engaged a new counsel. The Sessions Judge rejected the application on 7 December 2020. The accused then invoked the inherent power of the High Court under Section 482 CrPC to challenge that order. The High Court noted that the accused was in custody and could not instruct his legal aid counsel, and that the earlier counsel had not cross-examined on crucial aspects. The court held that the power under Section 311 CrPC is wide and must be exercised to secure a fair trial and prevent a miscarriage of justice. The High Court set aside the Sessions Judge's order, allowed the recall application, and directed the accused to pay costs of Rs. 5,000 to the State Legal Services Authority, Nagpur, within two weeks. The Sessions Judge was directed to permit the accused to recall the witnesses for cross-examination, with the accused bearing the expenses of the witnesses.
Headnote
A) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Fair Trial - The accused, facing trial for murder under Section 302 IPC, was in custody and represented by legal aid counsel. The legal aid counsel cross-examined prosecution witnesses without adequate instructions from the accused. The accused later engaged a private counsel and sought recall of witnesses under Section 311 CrPC to bring necessary facts on record. The Sessions Judge rejected the application. The High Court held that the power under Section 311 CrPC is wide and discretionary, and must be exercised to secure a fair trial. Since the accused was in custody and could not instruct his earlier counsel, the recall was necessary to prevent a miscarriage of justice. The order of the Sessions Judge was set aside and the application was allowed, subject to the accused paying costs of Rs. 5,000 to the State Legal Services Authority. (Paras 7-10)
Issue of Consideration
Whether the Sessions Judge erred in rejecting the application under Section 311 of the Code of Criminal Procedure, 1973 for recall of prosecution witnesses when the accused, who was in custody and represented by legal aid counsel, claimed that his earlier counsel failed to bring necessary facts on record through cross-examination due to lack of instructions.
Final Decision
The High Court allowed the criminal application, set aside the order dated 07.12.2020 passed by the Sessions Judge, Gadchiroli, and allowed the application (Exh.53) under Section 311 CrPC. The accused was directed to pay costs of Rs. 5,000 to the State Legal Services Authority, Nagpur, within two weeks. The Sessions Judge was directed to permit the accused to recall the witnesses for cross-examination, with the accused bearing the expenses of the witnesses.
Law Points
- Section 311 CrPC
- recall of witnesses
- legal aid
- fair trial
- cross-examination
- accused in custody
- miscarriage of justice
