Recall of witnesses should be judicious, not arbitrary, says SC

The Supreme Court has said that the Delhi High Court decision to allow the recall and re-examination of witnesses including the victim in Uber cab rape case was not justified as it resulted not only in delay but also harassment of witnesses.

"The court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed," said a bench of Justice Jagdish Singh Khehar and Justice Adarsh Kumar Goel in their judgment pronounced on Thursday but made available Friday.

Saying that it was difficult to approve the view taken by the high court, Justice Goel, speaking for the bench, said: "Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under section 311 Cr.P.C. (Criminal Procedure Code) is beyond any doubt. Not a single specific reason has been assigned by the high court as to how in the present case, recall of as many as 13 witnesses was necessary ..."

Rejecting the high court reasoning that it was the accused who would suffer on account of any delaying tactics on his part, the apex court said that "without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice".

"It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings," the judgment said.

"Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary 'for ensuring fair trial' is not enough unless there are tangible reasons to show how the fair trial suffered without recall."

The court said that the "discretion given to court has to be exercised judiciously to prevent failure of justice and not arbitrarily".

"While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial," said the apex court in its judgment.

Having said so, the court said that "having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined" and allowed the plea by the victim and Delhi Police challenging the high court order permitting the re-examination of 13 witnesses including victim.