Suresh @ Dhanasekar vs The State

P. Devadass, J.—Aggrieved by the order of the learned I Additional Sessions Judge, Coimbatore, in dismissing his petition in C.M.P. No.

33 of 2013 u/s 311 Cr.P.C., to recall the prosecution witnesses for cross-examination, the accused in SC. No. 66 of 2011 has come forward with

this petition u/s 482 Cr.P.C. The sole accused is being prosecuted in S.C. No. 66 of 2011, for having alleged to have committed murder for gain.

He is facing serious charges for offences u/s 451, 392, 302, 201 r/w 302 IPC. Thus, it includes capital charges also. Minimum is life imprisonment

and maximum is taking away his life itself.

Trial started. Prosecution produced its witnesses. The accused himself cross examined the witnesses. He was not defended by a legally trained

person. Later, he has engaged a lawyer to defend him. By the time, many witnesses were examined. The Investigation officer also has been

examined in chief.

At this juncture, the newly engaged defence counsel rightly applied for recalling the witnesses filing C.M.P. No. 33 of 2013 u/s 311 Cr.P.C. to

cross exam them. Subsequently, memo was filed restricting the number of witnesses to be recalled. Ultimately, by his impugned order dated

22.4.2013, the learned I Additional Sessions Judge, ordered recalling of only P.Ws. 5 and 17.

Aggrieved, the accused is before us.

A reading of the impugned order shows that the learned Additional Sessions Judge was under the impression that recalling of all the witnesses

would amount to retrial and thus it is impermissible.

The learned counsel for the petitioner submitted that the petitioner could not engage a counsel to cross examine the witnesses, now, he has

engaged an Advocate to defend him, an opportunity is sought for to test the veracity of the deposition of the prosecution witnesses. The trial Court

has neither appreciated the scope of section 311 Cr.P.C. nor applied settled principles of law and thus the defence is greatly prejudiced.

The learned Additional Public Prosecutor submitted that the attempt of the accused to protract the trial has been rightly scuttled by the trial

Court.

Section 311 Cr.P.C. gives opportunity to the defence/accused as well as to the State/prosecution to bring to the Court the evidence which is

very essential to render a just decision. It could be resorted to at any stage of the case, however, before pronouncing the judgment. It is a

dimension of principles of natural justice, namely, ''hear before condemn''. The ''hearing'' will be ''mere formality'' if reasonable opportunity is not

given.

The basic principle of English criminal law, namely, the allegations/charges levelled against the accused must be proved beyond all reasonable

doubts has been imported to Indian Criminal Law. Even now, this is the position of law in India except certain statutory tinkering, for instance,

offences u/s 306, 304-B IPC. Thus, every one is presumed to be innocent till the guilt alleged is proved. It is said that ''one''s presumption of

innocence itself is his basic human right''.

This is the position during pre and also post constitutional era. It flows from Article 21, Constitution of India, which guarantees ''life'' and

''personal liberty'' to every one. They can be taken away ''only'' by a ''procedure'' established by law. The procedure must be ''fair and

reasonable''. Thus, when there are provisions affecting or taking away one''s personal freedom, the procedure must have statutory birth and it must

be fair and also reasonable.[See Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .

As per Article 22(1) Constitution of India, persons accused of having committed offences are entitled to be defended by a legal practitioner of

their choice. It is an extension of principles of natural justice, namely, ''hear before condemn''. This has been further strengthened by Sections 303

and 304, Criminal Procedure Code, 1973. Section 303 Cr.P.C. reiterates the constitutional mandate enshrined in Article 22(1). Article 39-A,

Constitution of India provides for providing legal aid to needy persons. Section 304 Cr.P.C. directs the State to engage lawyer at its cost to

defend a person accused of having committed sessions offences. It is a matter of ''access to justice''.

Thus it follows that it is the right of accused persons more particularly who have been accused of having committed serious offences. However

heinous the crime may be, however wicked the accused may be, he is entitled to be defend by a lawyer of his choice. It is his constitutional right. If

a person, who is prosecuted for capital charges, is not defended by a lawyer, a legally trained person, any amount of opportunity given to him will

be illusory as ''hearing an accused without the assistance of a lawyer is like hearing a deaf and dumb person''.

In this case, foolishly, the petitioner/accused himself has cross examined the prosecution witnesses. He is not informed of his entitlement to be

defend by a lawyer of his choice at State''s cost nor a legal aid panel lawyer has been engaged to defend him.

In Hoffman Andreas Vs. Inspector of Customs, Amritsar, , emphasising grant of fairest opportunity to the accused to prove his innocence is

the object of every ''fair trial'', the Hon''ble Apex Court observed as under:-

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.

Thus, in P. Sanjeeva Rao Vs. The State of A.P., it is held that ""it is trite that the credibility of witnesses whether in a civil or criminal case can

be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage

of justice"".

In Natasha Singh Vs. CBI (State), emphasising the observance of Human Right of accused persons in conducting trial, the Hon''ble Apex

Court observed as under:-

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any

manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper

opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no

circumstances can a person''s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right

would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously

followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain Vs. Madhukar Purshottam

Mondkar and Another, Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, ; Zahira Habibullah Sheikh and Another Vs.

State of Gujarat and Others, Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, Vijay Kumar Vs. State of U.P. and Another, and Sudevanand Vs.

State,

In Mohanlal Shamji Soni Vs. Union of India and another, , the Hon''ble Apex Court explained the extent and the scope of power of the Court

to recall the witnesses as under:-

The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to

summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the

court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the

requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.

In Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., the Hon''ble Apex Court

considering the essential purpose of any trial or enquiry is, discovery of the truth observed as under:

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial

system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of

justice.

In this connection, in Sanjeeva Rao [2012(3) MWN(CRL) (49)], the Hon''ble Apex Court observed as under:

We are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we

would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost.

Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to

prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.

The petitioner/accused, who is facing serious charges, himself has cross examined the prosecution witnesses. He was not offered

real/reasonable opportunity to defend himself by having the assistance of a legal practitioner. It will be infraction of his right of defence guaranteed

to him u/s 303 Cr.P.C. read with Article 21, 22(1) Constitution of India.

Looking the matter in this perspective, the Order of the trial Thus, the impugned order of the learned I Additional Sessions Judge, Coimbatore,

passed in C.M.P. No. 33 of 2013 in S.C. No. 66 of 2011 is modified. The learned I Additional Sessions Judge is directed to recall P.Ws. 1 to 4,

7, 8, 10, 13, 15, 16 and give opportunity to the petitioner to cross examine the witnesses by his lawyer and after giving reasonable opportunity to

both sides dispose of the case according to law at an early date. Accordingly, this criminal original petition is disposed of. Consequently,

connected miscellaneous petition is closed.