Abid Ali v. State of NCT Delhi

1. Petition herein is directed against an order dated 14.10.2023 passed by the Learned Additional Sessions Judge (Special Judge) North East District, Karkardooma Courts, in criminal proceedings SC No. 6/2023 arising from FIR No. 413/2019, PS Karwal Nagar, under Sections 25/27/54/59 of the Arms Act, whereby the application under section 311 of the Cr.P.C. (348 of BNSS) filed by the petitioner for recalling the PW/1- Mamta, was dismissed.

2. The petitioner, who is an accused and currently under trial, asserts that he has been falsely implicated in the case. He asserts that he has committed no offence as alleged by the complainant in the ongoing proceedings. After the framing of charges, on 20.09.2023, due to a heavy cause list before the learned Trial Court, the matter was taken up at 2:30 p.m. On that day, the examination-in-chief of PW-1 Mamta was recorded and she was also cross-examined. However, during cross-examination, the counsel for the petitioner could not confront PW-1 with her previous statements recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C.

3. Hence, the application under Section 311 of the Cr.P.C. was filed leading to the instant petition.

4. In the above context, I have heard the submissions of the learned counsel for the petitioner as well as the learned APP for the State, and I have also perused the trial court record.

5. The learned counsel for the petitioner would argue in line with the grounds stated in the petition, contending that the Trial Court failed to apply its judicial mind while passing the impugned order. The application was rejected without properly considering the facts and evidence on record. The petitioner had provided valid reasons for not being able to fully crossexamine PW-1, whose testimony is crucial to the prosecution’s case. 5.[1] The learned counsel for the petitioner further submitted that there are several contradictions in the statements and testimony of PW-1. In addition, new facts and circumstances have emerged that cast serious doubt on the credibility of her testimony. 5.[2] It is further submitted that during the initial cross-examination of PW- 1, certain new, vital, and material facts emerged which require clarification. Therefore, recalling PW-1 (Mamta), the alleged eyewitness, is essential to secure a fair trial, enable the petitioner to effectively exercise his right of defence, and bring the truth before the Court. 5.[3] The counsel would submit that denying the opportunity to the petitioner would result in grave injustice, violate his fundamental rights, and contravene the principles of natural justice, and cause serious prejudice to his defence. 5.[4] He would cite various judgments viz. Ratanlal V. Prahlad Jat (2017) 9 SCC 340; In Vijay Kumar v.State of U.P.[Vijay Kumar v.State of U.P., (2011) 8 SCC 136; Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374; Manju Devi v State of Rajasthan, (2019) 6 SCC 203; Satbir Singh V. State of Haryana & Ors. in Criminal Appeal No__ of 2013 out of SLP Crl. No. 1258/2022 and; Natasha Singh Versus CBI in Criminal Appeal No 709 of2013, to urge that Section 311 ensures no failure of justice takes place due to omission or error on the part of counsel or otherwise, and is meant for clearing ambiguities and maintaining fairness, at any stage, when essential for a just decision, regardless of long delay, if otherwise justified by facts.

6. Opposing the petition, learned APP would argue that no interference by this court is warranted and both the applications of the petitioner were rightly dismissed by the learned trial court for the reasons stated in the impugned orders which are self speaking and need no further explanation.

7. Adverting now the merits of the application under section 311 ibid, first and foremost, pertinent to note that what seems to have weighed with the learned trial court inter alia is that charges under Sections 302/34 IPC were framed and PW-1 was examined and extensively cross-examined on 20.09.2023. The application for recall was filed on 25.09.2023 citing inability to put certain questions, confront prior statements, and discovery of new facts post-visit to the crime scene. However, since PW-1 was subjected to detailed cross-examination and even confronted with her prior statements during that process, the plea of paucity of time was not found convincing by the trail court. Discovery of new facts later was not held to be sufficient ground to justify recalling a public witness, as repeated summoning may cause harassment. Trial court also observed that section 311 Cr.P.C. allows recall only if essential for the just decision of the case. Since PW-1 has already been cross-examined at length, further recall is neither necessary nor warranted.

8. Having given my thought, at first glance, the petition herein filed by the accused seems to have been preferred belatedly. However, considering the petitioner/accused is in judicial custody, and is facing trial for an offence punishable with death or life imprisonment, the delay cannot outweigh the imperative of ensuring a fair trial. Technicality must yield to substantive justice. The delay thus stands condoned in the interest of justice.

9. On merits, the learned Trial Court declined recall primarily to avoid delay. However, justice cannot be compromised for the sake of expediency. Trite it may sound, but justice hurried is justice buried.

10. While recalling the witness may cause some delay, the right to a fair trial is the cornerstone of criminal jurisprudence. If an error must occur, it should rather lean in favour of the accused rather then prosecution. And that is why the adage, “Better that ten guilty persons escape than one innocent suffer.”

11. In the case in hand, the petitioner faces charges punishable with life imprisonment or even the death penalty. Even a lapse in defence may result highly drastic consequences. Not posing the essential questions or confronting prior statements can irreparably damage the defence. Denying the opportunity to rectify such a lapse, if the case is otherwise made out, strikes at the heart of Article 21 of the Constitution of India, which guarantees a fair trial as a fundamental right. Article 21 of the Constitution of India guarantees not just life and liberty, but life and liberty by “procedure established by law” which must be just, fair, and reasonable. The right to defend oneself effectively, including the right to cross-examine prosecution witnesses, is an integral part of this guarantee.

12. Moreover, section 311 Cr.P.C. is Worded in the Widest Terms. It uses the expression “any court at any stage of inquiry, trial or other proceeding… may summon any person… or recall and re-examine any person… if his evidence appears to it to be essential to the just decision of the case.” The key test thus is “essential to the just decision of the case.”

13. Reverting to the petition herein, PW-1 is the star prosecution witness and the only alleged eyewitness. If any ambiguity, contradiction, or omission remains unexplored, it directly affects the just decision of the case. The object of Section 311 is discovery of truth. Herein, the defence counsel could not confront PW-1 with prior statements or new facts that came to light later. This does not seem to be an attempt to fill lacunae; rather, it is a legitimate effort to bring forth material facts that go to the root of the matter and will help the trial court to unearth the truth. When the consequence of denial is possible conviction for murder, the balance of convenience tilts overwhelmingly in favour of granting an opportunity rather than risking an irreversible miscarriage of justice.

14. On the other hand, what is the prejudice to the prosecution if PW-1 is recalled for a few additional questions? Minimal. What is the prejudice to the accused if the application is rejected? Irreparable and irreversible, as the accused may face conviction without full opportunity to defend.

15. In such circumstances, as above, judicial conscience demands that the scales ought to rather lean to protect right to fair trial instead of technical objections.