LexSTATE OF HARYANA versus RAM MEHAR & OTHERS ETC. ETC.
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A B c D E F G H [2016] 5 S.C.R. 172 STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. (Criminal Appeal Nos. 805-806 of2016) AUGUST 24, 2016 [DIPAK MISRA AND UDAY UMESH LALIT, JJ.] Code of Criminal Procedure, 197 3: s.311 - Scope and ambit of - Petition by accused u/s. 311 for recalling of witnesses - Trial court held that when the material questions had already been put, there was no point to entertain the application and mere change of the counsel could not be co11sidered as a grou11d to allow the application for recalling the witnesses for fi1rther cross-examinatio11 - Petitio11 uls.482 011 the ground that the leadi11g.counsel for defe11ce was critically ill during the trial and certain important questio11S, suggestions with respect to i11dividual roles a11d i11juries sustai11ed and the weapon used etc. had not been put to the wit11esses - High Court, allowed the petitions holding that a case for recalli11g was made out to ensure grant of fair opportunity to defend and uphold the concept of fair trial - On appeal, held: Jn the case at hand, the prosecution had examined all the witnesses - The statements of all the accused persons, that is 148 i11 11u111ber. had been recorded uls. 313 - The defence had exami11ed 15 witnesses - Number of lawyers were e11gaged by the defence - The accused persons had e11gaged counsel of their choice - Jn such a situation recalling of witnesses indubitably cannot form the foundation - High Court was persuaded by the submission that recalling of witnesses and their cross- examination would not take much time and that apart, the cross- examination could be restricted to certai11 aspects - Jn this regard, High Court failed to appreciate that the witnesses have been sought to be recalled for further cross-examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions - This kind of plea in a case of this nature and at this stage could not have been allowed to be entertained. Natura/justice: Fair trial-Held: Fair trial in its ambit requires fairness to the accused, the victim and the collective at large - Neither the accused nor the prosecution nor the victim can claim absolute 172 STATE OF HARYANA v. RAM MEHAR & OTHERS ETC. ETC. 173 predominance over the other. A Allowing the appeals, the Court HELD: 1. The concept of the fair trial is not rigid and there cannot be any strait-jacket formula for applying the same. On occasions it has the necessary flexibility. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. There should be passion for doing justice but it must be coinmanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entirety. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. [Para 24)[191-D-H] Bablu Kumar and others v. State of Bihar and another . 2015 (8) SCR 512 : (2015) 8 SCC 787; Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) 2010 (4) SCR103: (2010) 6 SCC 1; State of Karnataka v. K. Yarappa Reddy 1999 (3) Suppl. SCR 359 : (1999) 8 SCC 715; J. Jayala!ithaa and others v. State of Karnataka and others (2014) 2 SCC 401 - relied on. 2. Recalling of witnesses as envis11ged u/s.311 on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown are not acceptable in the obtaining factual matrix. The decisions which have used the words that the court should be magnanimous, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established an
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