Case Note & Summary
The case involves a criminal revision application filed by Kishor Pannalal Gurarikar, the accused in Special Criminal Case No. 6 of 2010 pending before the Adhoc Additional Sessions Judge-1, Nagpur. The accused challenged the order dated 17th October 2011 passed by the trial court rejecting his application for recall of prosecution witnesses P.W. Nos. 3 and 4 for cross-examination. The facts reveal that the examination-in-chief of P.W. Nos. 3 and 4 was recorded on 26th June 2011 and 14th July 2011 respectively. On those dates, the accused's advocate, Mr. Rupesh Jaiswal, was absent. On 14th July 2011, a colleague of Mr. Jaiswal was present but requested an adjournment which was refused. The trial court then directed the accused to cross-examine the witnesses himself, but the accused declined to do so. Subsequently, the accused filed an application for recall of these witnesses, which was rejected by the trial court on the ground that the witnesses had already been recalled once earlier and that the advocate did not wish to cross-examine, causing unnecessary delay. The High Court, after hearing both sides, examined the depositions and noted that the absence of the advocate was recorded at the bottom of the depositions. The court observed that the accused cannot be made to suffer for the absence of his counsel and that the right to cross-examine is a vital part of a fair trial. The court held that the trial court's order was not justified and that the accused should be given an opportunity to cross-examine the witnesses. The High Court allowed the revision application, set aside the impugned order, and directed the trial court to recall P.W. Nos. 3 and 4 for cross-examination, subject to payment of costs of Rs. 500 each to the witnesses. The court also directed the trial court to expedite the trial and complete it within three months.
Headnote
A) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - Right to Cross-Examination - The accused sought recall of P.W. Nos. 3 and 4 for cross-examination as his counsel was absent during their examination-in-chief. The trial court rejected the application citing previous recall and delay. The High Court held that the accused cannot be made to suffer for the absence of his counsel and that the right to cross-examine is a vital part of fair trial. The impugned order was set aside and the witnesses were directed to be recalled subject to costs. (Paras 1-8) B) Criminal Procedure - Cross-Examination by Accused in Person - Section 311 CrPC - When the accused's counsel was absent, the trial court directed the accused to cross-examine the witnesses himself. The accused declined. The High Court observed that an accused cannot be compelled to cross-examine witnesses personally if he is not capable or willing, and the court should ensure effective cross-examination through counsel. (Paras 6-7) C) Criminal Procedure - Recall of Witnesses - Section 311 CrPC - The trial court rejected the recall application on the ground that the witnesses were already recalled once and the case was prolonged. The High Court held that the interest of justice requires that the accused be given a fair opportunity to cross-examine, and mere delay or previous recall cannot defeat the right to cross-examine if the earlier opportunity was ineffective due to counsel's absence. (Paras 5-8)
Issue of Consideration
Whether the trial court was justified in rejecting the application for recall of prosecution witnesses for cross-examination when the accused's counsel was absent and the accused declined to cross-examine himself.
Final Decision
The revision application is allowed. The impugned order dated 17th October 2011 is set aside. The trial court is directed to recall P.W. Nos. 3 and 4 for cross-examination by the accused, subject to payment of costs of Rs. 500 each to the witnesses. The trial court is directed to expedite the trial and complete it within three months from the date of receipt of the order.
Law Points
- Right to fair trial
- Recall of witnesses for cross-examination
- Section 311 CrPC
- Opportunity to cross-examine
- Absence of counsel
- Prejudice to accused
