Witnesses can be re-examined or re-called only when interest of justice is affected by not doing so

Madhya Pradesh High Court: Recently, an application was made under Section 482 CrPC against the order in which the plea of applicants under Section 311 CrPC for recalling witnesses who were already examined and re-examined. The reason given by the applicant was that the counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, they had to change their counsel and because of the inability of their earlier counsel, they pleaded that they were being denied the fair trial. The applicants also took a plea under Section 138 of the Evidence Act which talks about the order of examination of witnesses and re-examination.

To this, it was responded by the counsel from the State 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.

The Court went on to examine both the provisions relied upon by the applicants and their inter-connection. The Court observed that 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’. It simply means all that is required to satisfy the court in relation to such evidence that it appears to the court to be essential for the just decision of the case. While Section 138 of the Evidence Act provides for the order of examination of witnesses in the Court. So, the re-examination will be conducted as per the order prescribed under Secion 138 at the desire of ‘any’ person referred to in Secion 311 CrPC and most importantly, at the satisfaction of the Court suggested by Section 311 CrPC that is, paramount for the just decision of the case. In all, the Court meant to convey that such power of allowing re-examination must be used sparingly as well as judiciously with utmost care and caution, only with the purpose of finding the truth or obtaining proper proof of such facts.

The Court citing  Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 explained as to when and under what circumstances such powers must be used. It was held in this case that but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses.

Another principle that the Court emphasised upon is that it’ll always be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. It even warned that justice will be prejudiced if a retrial is followed on every change of a counsel and would be detrimental to the interests of the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

It even went on to deal with the possibility that if the counsel is physically or mentally unfit to deal with the case, the interests of justice would suffer badly. The Bench suggested that the Advocates Act and the other relevant rules be reviewed in order to ensure the fitness of the counsel in larger interest of the society and also to avoid such pleas as presented in the case before it. The Court persuaded that the Law Commission and the Bar Council of India must look into it. [Paijaram v. State of M.P., M.Cr.C. No.11624/2016, decided on 20.01.2017]

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