LexAG versus SHIV KUMAR YADAV &ANR.
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[2015] 10 S.C.R. 455 AG v. SHIV KUMAR YADAV &ANR. (Criminal Appeal Nos. 1187-1188 of 2015) SEPTEMBER 10, 2015 [JAGDISH SINGH KHEHAR AND ADARSH KUMAR GOEL, JJ.] A B Code of Criminal Procedure, 1973- s. 311 - Power to c summon material witness, or examine person present -_ Matter pertaining to commission of rape - Application u/s. 311 "for recall of prosecution witnesses, at the stage when statement of accused has been recorded - Plea raised that the defence counsel was not competent and had not 0 effectively cross-examined the witnesses - Held: Recall could be permitted if essential for the just decision - Recall is not a matter of course and discretion given to the court has to be exercised judiciously to prevent failure of justice - Instant case is in the category of cases where the trial is E required to be fast tracked - While advancement of justice remains the prime object of law, recall cannot be allowed for the asking or reasons related to mere convenience - Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in such sensitive F cases - It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination - It would result in undue delay in the trial - High Court did not assign a single specific reason as to how recall of as many as 13witnesse~ G was necessary as. directed in the impugned order - Thus, the order passed by the High Court is set aside and application for recall is dismissed-Administration of criminal justice. 455 H 456 SUPREME COURT REPORTS [2015) 10 S.C.R. A Judicial notice - Retrial on the ground of unfitness of the counsel- Court taking notice of- Since interest of society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reforms are necessary so that such a situation does not arise - There is a need to B review the Advocates Act and the relevant Rules to examine the continued fitness of an advocate to conduct a criminal trial by the concerned Authorities including the Law Commission and the Bar Council of India - Advocates Act, 1961. c Allowing the appeals, the Court HELD: 1.1 While advancement of justice remains the prime object of law, it cannot be understood that recall 0 can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must E follow on every change of a counsel, can have serious consequences on conduct of trials and th~ criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result F in undue hardship for victims, especially so, of heinous · crimes, if they are required to repeatedly appear in court to face cross-examination. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest G of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. [Paras 15, 16] [477-F-H; 478-A- H B] 1.2 The instant case is in the category of cases where AG v. SHIV KUMAR YADAV &ANR. 457 the trial is required to be fast tracked. Referring to the A ground of the earlier counsel not being competent, the trial court observed that the counsel was of the choice of the accused. The accused was not facing a criminal trial for the first time. The cross-examination of witnesses was deferred time and again to enable the counsel to B seek instructions from the accused. lnspite of the High Court not having found any fault in the conduct of the proceedings, it held that "although recalling of all the prosecution witnesses is not necessary~· recall of certain witnesses was necessary for the reasons given in the C application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is qnly he who would suffer. It is difficult to approve the view taken by the High Court. [Para 22, 26 0 and 27) [484-H; 485-A; 492-C-E] 1.3 Undoubtedly, fair trial is the objective and it is the
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