LexP. SANJEEVA RAO versus THE STATE OF A.P.
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[2012] 6 S.C.R. 787 P. SANJEEVA RAO v. THE STATE OF A.P. (Criminal Appeal Nos. 874-875 of 2012) JULY 2, 2012 [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] Code of Criminal Procedure, 1973 - ss. 311 and 242 - Extent and scope of the power of the Court to recall witnesses A B - Prosecution for offences punishable u/ss. 7 and 13(1) rlw C 13(d) of the Prevention of Corruption Act - Around the time the prosecution concluded its evidence, accused-appellant filed petition u/ss. 242 and 311 CrPC for recall of PW 1- complainant and PW2 (an independent witness) for cross- examination - Plea of appellant that cross-examination of D PWs 1 and 2 had been deferred till such time the Trap Laying Officer (PW 11) was examined by the prosecution and since the said officer had been examined, PWs 1 and 2 need be recalled for cross-examination by counsel for the appellant - Application dismissed by trial court on grounds that there was E nothing to show on the record that the appellant had reserved his right to cross examine the witnesses at a later point of time and that recall of PWs 1 and 2 for cross-examination more than 3;;2 years after they had been examined in relation to an incident that had taken place 7 years back, was bound to F cause prejudice to the prosecution - Order upheld by High Court - On appeal, held: The decision to cross-examine is generally guided by the nature of the depositions and whether it incriminates the accused - In a case like the one at hand where PWs1 and 2 had clearly indicted the appellant and G supported the prosecution version not only regarding demand of the bribe but also its receipt by the appellant there was no question of the defence not cross-examining them - One is inclined to believe that the two PWs were not cross-examined 787 H 788 SUPREME COURT REPORTS [2012] 6 S.C.R. A by the counsel for the appellant because he had indeed intended to cross-examine them after the Trap Laying Officer had been examined - The fact that the appellant did not make a formal application to this effect nor even an oral prayer to the Court to that effect at the time the cross-examination was B deferred may be a mistake - But merely because a mistake was committed, should not result in the appellant suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer - A possible prejudice to prosecution is not even a price, leave alone one that would justify denial c of a fair opportunity to the appellant to defend himself - Direction given that PWs1 and 2 be recalled by the Trial Court and an opportunity to cross-examine the said witnesses afforded to the appellant. The appellant was being prosecuted for offences D punishable under Sections 7 & 13 (1) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, before the Special Judge for CBI cases. Around the time the prosecution concluded its evidence, the appellant filed Crl. Misc. Petition under Sections 242 and 311 Cr.P.C. for E recall of PW 1-complainant and PW2 (an independent witness) for cross-examination. The appellant's case was that cross-examination of PWs 1 and 2 had been deferred till such time the Trap Laying Officer (PW 11) was examined by the prosecution and since the said officer F had been examined, PWs 1 and 2 need be recalled for cross-examination by counsel for the accused-appellant. The application was dismissed by the Trial Court on the ground that there was nothing to show on the record that the appellant had reserved his right fo cross examine the G witnesses at a late~ point of time. The Trial Court also held that recall of PWs 1 and 2 for cross-examination more than 3% years after they had been examined in relation to an incident that had taken place 7 years back, was bound to cause prejudice to the prosecution and that the H appellant could not ask for the recall of any witness P. SANJEEVA RAO v. STATE OF A.P. 789 without cogent reasons. Aggrieved, the appellant filed A revision petition before the High Court which held that since this was an old case of the year 2005 and the matter was now coming up for examination of the appellant- accused under Section 313 Cr.P.C., there was no justification for recall of the PWs1 and 2 and accordingly B dismissed the revision petition. In the instant appeals, the appellant raised various contentions: 1) that the Trial Court as also the High Court had taken a hyper technical view of t
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