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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

20/01/2017
Shri Shri Gagan Sharma, Counsel for the
applicants.
Shri Prakhar Dhengula, Panel Lawyer for the
respondent No.1/State.
This application under Section 482 of Cr.P.C.
has been filed against the order dated 31-8-2016
passed by 2nd A.S.J., Dabra in S.T. No. 132/2016
by which the application filed by the applicants
under Section 311 of Cr.P.C. for recalling Balli
(P.W.1) and Mathura Bai (P.W. 2) has been
rejected.
2. The facts necessary for the disposal of this
application are that the applicants are facing trial
for offences punishable under Sections 302 and
307/34 of I.P.C. Balli (P.W.1) and Mathurabai
(P.W. 2) were examined by the prosecution and
they were cross examined in detail by the Counsel
for the applicants. At the later stage, the
applicants filed an application under Section 311
of Cr.P.C. for recalling Balli (P.W.1) and Mathurabai
(P.W. 2) for further cross examination on the
ground that earlier Shri B.S. Thakur, Junior to Shri
Mukesh Parashar, Advocate had cross examined
these witnesses on behalf of the applicants,
however, certain important questions could not be
put to these witnesses therefore, now Balli (P.W.1)
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(Paijaram & Ors. v. State of M.P. & Ano.)

and Mathurabai (P.W. 2) may be recalled.

3. The application was opposed by the
Prosecution and the Trial Court by order dated 31-
8-2016, rejected the application.
4. The Counsel for the applicants submit that
the Counsel who was earlier engaged by the
applicants could not put several questions on the
material aspects, therefore, the applicants were
left with no other option but to change their
Counsel and because of the inability of their
earlier Counsel, they may not be put to an
disadvantageous position as free and fair Trial is
the cardinal principle of Criminal jurisprudence.
5. Per Contra, the Counsel for the State submits
that although the free and fair trial is the cardinal
principle of Criminal jurisprudence, but the
applicants had engaged the Counsel of their own
choice and the applicants were given full
opportunity to cross examine the witnesses.
6. Heard the learned Counsel for the parties.
7. The moot question involved in the present
case is that whether the Change in Counsel can be
said to be a sufficient reason to recall a witness
who has been examined in detail by the Counsel
engaged by the applicants themselves.
8. In the present case, the applicants have not
placed the copy of the deposition sheet of Balli
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

(P.W.1) and Mathurabai (P.W. 2) on record. It is

the contention of the applicants that the witnesses
were cross examined by Shri B.S. Thakur,
Advcoate, an associate Counsel of Shri Mukesh
Parashar, Advocate and therefore, several
important questions could not be put to the
witnesses. It is not the case of the applicants,
that any adjournment was sought from the Court
on the ground of non-availability of the Senior
Counsel. It is also not the case of the applicants
that Shri B.S. Thakur, Advocate was never
engaged by them. It is also not the case of the
applicants, that full opportunity was not given to
the applicants to cross-examine the witnesses.
Merely because, now the Counsel has been
changed by the applicants, then that by itself
would not be a good ground to recall the
witnesses. The Supreme Court in the case of
State (NCT of Delhi) v. Shiv Kumar Yadav,
(2016) 2 SCC has held as under :

“10. It can hardly be gainsaid that fair

trial is a part of guarantee under Article
21 of the Constitution of India. Its
content has primarily to be determined
from the statutory 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 for. It is
also true that principle of fair trial has
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

to be kept in mind for interpreting the

statutory provisions.
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 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.
12. In Rajaram case, the complainant
was examined but he did not support
the prosecution case. On account of
subsequent events he changed his mind
and applied for recall under Section 311
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

CrPC 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: (SCC
pp. 468-69, paras 13-14)
“13. … In order to appreciate the stand
of the appellant it will be worthwhile to
refer to Section 311 CrPC, as well as
Section 138 of the Evidence Act. The
same are extracted hereunder:
Section 311, Code of Criminal
Procedure
‘311. Power to summon material
witness, or examine person present.—
Any court may, at any stage of any
inquiry, trial or other proceeding under
this Code, summon any person as a
witness, or examine any person in
attendance, though not summoned as a
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.’
* * *
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.
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(Paijaram & Ors. v. State of M.P. & Ano.)

Direction of re-examination.—The re-

examination shall be directed to the
explanation of matters referred 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.’
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 witness or to recall or re-
examine any witness already examined.
A reading of the provision shows that
the expression ‘any’ has been used as a
prefix to ‘court’, ‘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 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 re-examination is
also prescribed calling for such a
witness so desired for such re-
examination. Therefore, a reading of
Section 311 CrPC and Section 138 of
the Evidence Act, insofar as it comes to
the question of a 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
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

311 CrPC. It is, therefore, imperative

that the invocation of Section 311 CrPC
and 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 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 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
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 such power should be made
judicially and also with extreme care
and caution.”
13. After referring to the earlier
decisions on the point, the Court culled
out the following principles to be borne
in mind: (Rajaram case, SCC pp. 473-
74, para 17)
“17.1. Whether the court is right in
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

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 a just decision of
a case?
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 of justice 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 of finding 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 facts
and circumstances of the case make it
apparent that the exercise of power by
the court would result in causing
serious prejudice to the accused,
resulting in miscarriage of justice.
17.6. The wide discretionary power
should be exercised judiciously and not
arbitrarily.
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
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(Paijaram & Ors. v. State of M.P. & Ano.)

arrive at a just decision of the case.

17.8. The object of Section 311 CrPC
simultaneously 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
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 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 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 the court
should 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. The court
should bear in mind that improper or
capricious exercise of such a
discretionary power, may lead to
undesirable results.
17.12. The additional evidence must
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M.Cr.C.No.11624/2016
(Paijaram & Ors. v. State of M.P. & Ano.)

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 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
the illness of the counsel. This prayer
was allowed in peculiar circumstances
with the observation that normally a
closed trial 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 observed: (SCC p.
432, para 6)
“6. Normally, at this late stage, we
would be disinclined to open up a
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(Paijaram & Ors. v. State of M.P. & Ano.)

closed trial once again. But we are

persuaded to consider it in this case on
account of the 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 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 certain aspects. In
such circumstances, if the new counsel
thought to have the material witnesses
further examined the Court could adopt
latitude and a liberal view in the
interest of justice, particularly when the
Court has unbridled powers in the
matter as enshrined in Section 311 of
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 a
counsel. While advancement of justice
remains the prime object of law, it
cannot be understood that recall 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
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(Paijaram & Ors. v. State of M.P. & Ano.)

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 serious consequences
on conduct of trials and the criminal
justice system. The 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 the victims, especially so,
of heinous crimes, if they are required
to repeatedly appear in court to face
cross-examination.
16. The interest of justice may suffer if
the counsel conducting the trial is
physically or mentally unfit on account
of 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 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 Advocate who conducted trial
was unfit or incompetent. This is an
aspect which needs to be looked into by
the authorities concerned including the
Law Commission and the Bar Council of
India.
17. In State (NCT of Delhi) v. Navjot
Sandhu, this Court held: (SCC pp. 726-
27, para 167)
“167. … we do not think that the Court
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(Paijaram & Ors. v. State of M.P. & Ano.)

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: (SCC OnLine US SC
para 44)
‘44. Judicial scrutiny of the counsel’s
performance must be highly deferential.
It is all too tempting for a defendant to
second-guess 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 act of omission of the counsel
was unreasonable. Engle v. Isaac (US at
pp. 133-34). 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
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 presumption that the counsel’s
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(Paijaram & Ors. v. State of M.P. & Ano.)

conduct falls within the wide range of

reasonable professional assistance….’”

9. For the reasons best known to the

applicants, they have chosen not to place the copy
of the deposition sheets of Balli (P.W. 1) and
Mathurabai (P.W.2) on record, to show that the
witnesses were not cross examined on material
points. Further, it is a well established principle of
law that change of Counsel cannot be a ground to
recall the witnesses. Undisputedly, the Counsels
were engaged by the applicants, and now they
cannot complaint about the incompetency of their
Counsel.
10. As full opportunity was given to the
applicants to cross examine the witnesses, and
there is nothing on record to show that because of
the non-availability of the Counsel engaged by the
applicants, the associate Counsel had cross-
examined the witnesses. Merely because now the
applicants have changed their Counsel, therefore,
it cannot be a good ground to recall the witnesses.
If the witnesses are recalled merely for the
convenience of the accused persons, then it may
cause hardship to the victims or the prosecution
witnesses in appearing again and again for facing
cross examination. Thus, under the facts and
circumstances of the case, this Court is of the
view, that merely on the ground of change of
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(Paijaram & Ors. v. State of M.P. & Ano.)

Counsel, a witness cannot be recalled specifically

when, he was earlier cross examined by the
Counsel of the choice of the accused persons.
11. Thus, this Court is of the considered opinion
that the applicants have failed to make out a case
for recall of the witnesses. The Trial Court did not
commit any illegality by rejecting the application
for recall of witnesses. Hence, the order dated
31-8-2016 passed by the Trial Court is
maintained.
12. Consequently, this application fails and is
hereby dismissed.

(G.S.Ahluwalia)
(ra) Judge