Madras High Court: Setting aside the decision of the Court of Special Judge under the Prevention of Corruption Act, refusing the petitioner accused the right to recall an important witness for cross-examination, the Bench of Dr. P. Devadass, J., allowed the petitioners to recall the witness for cross-examination cautioning that the cross-examination should be completed as soon as possible and that deferring the same would not be permitted. However, taking the opportunity to ponder upon the conflict between an accused person’s constitutionally guaranteed right of defense, the duty of the State to punish the offenders and the plight of the victims/witnesses due to prolonged trials, the Court observed that a court should be magnanimous in protecting the rights of the accused, however it must ensure that this magnanimity does not become a headache for the victims of the offences and the witnesses, thereby resulting in failure of justice.
The petitioners were charged for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The witness that the petitioners were seeking for cross-examination was a trap operation witness. However, the Special Judge referring to Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, refused to entertain the recall petition. It was contended by the petitioners that the trial court cannot deny the accused their right to cross-examine a witness. Moreover, the Special Court has misunderstood the Supreme Court dictum in Vinod Kumar thinking that recalling of witnesses for cross-examination is not permitted at all. However, the respondents rebutted by contending that, the petitioners have not cited any proper reason for the recall of witness.
Perusing the contentions, the Court observed that in Vinod Kumar case, the Supreme Court had raised concerns over unnecessary adjournments in the trial courts, thereby deferring the cross-examination of witnesses; however it was never said that recalling witnesses for cross-examination is prohibited. In fact the Supreme Court advised the trial courts to avoid unnecessary adjournments and try to finish the cross-examination of the witnesses on the same day or at least on the next day. The Court further observed that the examination-in-chief of the trap operation witness has already been conducted, however, if under Section 138 of Evidence Act, the testimony is not tested at the altar of cross-examination, then it shall cause a great prejudice to the petitioner accused. However the Court addressed the sufferings the victims and the witnesses face during the trial. The Court stated that victims/witnesses are guests who assist the courts in fact finding, therefore deferring their examination on flimsy grounds by the trial courts, and employment of mean tricks by the accused to dilute their testimony should be avoided to uphold the ends of justice. [Vincent v. The State, 2016 SCC OnLine Mad 9048, , decided on 22.08.2016]