Recalling witnesses through casual invocation of Section 311 CrPC must be stopped: Madras HC

The Madras High Court recently emphasised that trial proceedings cannot be prolonged unduly under the guise of recalling a witness. Expressing disapproval for the casual invocation of Section 311 of the Code of Criminal Procedure (CrPC) to belatedly recall witnesses, Justice N Anand Venkatesh observed,.“… this Court encounters on a daily basis, petitions of this nature where the witnesses are sought to be recalled after long number of years, after they have deposed before the Court during Chief examination. On the one hand it is true that fair trial must be ensured to the accused persons. .That does not mean that the accused persons will examine witnesses on their own sweet will and pleasure and the accused persons cannot expect the Courts to wait for them to take a decision as to when they will cross-examine the witnesses. .If this practice is encouraged, the proceedings are bound to get delayed and the trial Courts will be clogged with the pending cases.”.The High Court was dealing with a case involving charges of cheating and extortion. The final report in the case had been filed in 2007. The trial commenced five years later, in an Egmore court in 2012. A total of four witnesses were examined, out whom one was examined in 2012, one in 2013 and one as late as February 2018. However, these three witnesses only underwent examination-in-chief..In October 2018, a plea was moved before the trial court to recall the three witnesses, contending that they were not cross-examined. The petitioners justified their plea by contending that their counsel at the time had omitted to do the same and that their new counsel had immediately moved the plea under Section 311, CrPC on being aware of the omission..The trial court, however, rejected their plea, observing that there was absolutely no explanation as to why the petitioners waited for such a long time to file a petition to recall the witnesses, despite having a counsel at the time. This trial court order was challenged before the Madras High Court..Justice Venkatesh, however, saw no reason to interfere with the trial court’s order. Rather, the case prompted him to take note of the proclivity to delay trials through the invocation of Section 311 CrPC. The Court noted,.“This case is only a sample of the manner in which the trial is being conducted in the subordinate Courts. Even though Section 309 of CrPC insists for a day-to-day trial, wherein the accused person is expected to cross-examine the witnesses on the same day they are examined in Chief, It is never followed…”.He also took the opportunity to caution against interfering with trial court decisions against recalling witnesses, observing that,.“On the one hand, this Court is insisting upon the trial Courts to dispose of long pending criminal cases and therefore, the trial Courts are getting strict while dealing with recall petitions. If such orders are interfered in a casual manner by this Court, in a way this Court will also be responsible for the pendency of the cases before the subordinate Courts.”.He added that to repeatedly summon a witness would also discourage witnesses from appearing before the Court at all..“… this practice of treating petitions filed under Section 311 of CrPC in a casual manner and calling witnesses to the Court for cross-examination repeatedly should be stopped. As it is witnesses are hesitant to come before the Court and depose. If they are repeatedly called before the Court, at one stage no one will be ready to appear before the court as witness.”.Moreover, the judge pointed out that in the instant case, one of the witnesses sought to be recalled had testified in the case as early as 2012. This being the case, he noted that it is likely that the witness would not be able to recall his testimony as accurately..“… obviously, due to passage of time and loss of memory, there is bound to discrepancy in his evidence and this will be again taken advantage by the accused persons.”.Over and above these concerns, the Court also highlighted that the delay of trials through belated pleas to recall witnesses would also worsen the issue of case pendency and docket explosion..“Unless the Courts are going to get strict while dealing with the petitions filed under Section 311 of Cr.P.C. for recalling witnesses, no solution can be found for the disposal of the long pending cases and the docket explosion is going to continue to haunt the Courts.”.With these observations, the Court dismissed the plea, ruling that,.“This Court does not find any illegality or infirmity in the order passed by the Court below and there are absolutely no grounds to interfere with the order passed by the Court below and the order passed by the Court below has to be necessarily sustained.” .In August 2015, the Supreme Court had come down heavily on a former Uber cab driver accused of raping a passenger, while strongly condemning the delay tactics adopted by the accused in the trial. The Court had remarked that the accused misused Section 311 of CrPC by seeking recall of witnesses..Read the Judgment:.Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.