The Practice Of Treating Petitions U/S 311 Cr.P.C In A Casual Manner and Recalling Witnesses Time And Again Should Be Stopped [Read Order]

In a recent order the Madras High Court has held that the practice of treating petitions under section 311 of the Cr.P.C in a casual manner and recalling the witnesses time and again for cross examination should be stopped.

The Court observed that where Trial Courts due to the High Court's directions are dealing with recall petitions in stricter manner, a casual approached adopted by the latter in dealing with such petitions would contribute to the pendency of cases before the subordinate courts.

In this case, the petitioners/accused persons were undergoing trial on charges of extortion and cheating before the Metropolitan Magistrate Court at Egmore in Chennai. Despite the final report against them being filed in 2007, there was no progress in the case and the trial started in 2012. Between 2012 and 2018, although the witnesses in the case were examined in chief, their cross examinations were not conducted by the petitioners/accused parties despite the presence of a counsel. After the examinations ended in February 2018, a petition was filed by the petitioners in October of the same year, recalling the witnesses for cross examination.

The Trial Court dismissed such petition, failing to find any reason for the delay in filing the same despite the presence of a counsel during the entire process. In the same vein it also held that witnesses cannot be called at the whims and fancies of the accused persons and since the case was already pending from 2007, it was an attempt to further delay the proceedings.

This order of the Trial Court was challenged in the instant case under section 482 of the Cr.P.C.

The counsel for the petitioners prayed for an opportunity to cross examine the witnesses before the High Court to prevent their right to fair trial from being defeated. They also contended that a change in the counsel had taken place during the proceedings and the new counsel, on discovering that the cross examinations had not taken place, had immediately filed an order to conduct the same.

While delivering the order, the Justice N. Anand Venkatesh observed that the rule under section 309 of the Cr.P.C that witnesses are to be cross examined on the same day as their examination in Chief in a day to day trial is never followed despite its repeated emphasis by the Supreme Court.

"Time and again the Hon'ble Supreme Court has reiterated the position of law and in spite of the same, this Court encounters on a daily basis, petitions of this nature where the witnesses are sought to be recalled after long number of years, after they have deposed before the Court during Chief examination."

The Court observed that while a fair trial is important, it must not provide a leeway to the accused persons to examine the witnesses at their whims and fancies expecting the Court to wait for their decisions.

The Court further noted that the practice of hearing such recall petitions might also discourage the already reluctant witnesses from appearing before the Court. It also rejected the ground shown by the petitioner of a change in counsel, stating that the law was well-settled in this aspect.

Apart from this, the judge also observed that recalling witnesses after long durations as was done in the instant case may lead to discrepancy in evidence due to the passage of time and loss of memory which might be taken advantage of by the accused.

Thus, underlining the impact of entertaining such petitions on pendency of cases, the Court held that

"Unless the Courts are going to get strict while dealing with the petitions filed under Section 311 of Cr.P.C for recalling witnesses, no solution can be found for the disposal of the long pending cases and the docket explosion is going to continue to haunt the Courts."

In light of such concerns, the Court upheld the Trial Court order, dismissing the petition of the accused persons 

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