Lawyer couldn't conduct proper cross-examination no ground to recall witnesses: Supreme Court

New Delhi: The Supreme Court has said the trial court can't exercise its discretionary power Section 311 of the Criminal Procedure Code to recall a witness on vague and substantiated basis or on a plea by the accused that their erstwhile lawyer could not conduct proper cross-examination.

A bench of Justices P S Narasimha and Sandeep Mehta said the trial court could summon any person as a witness or to recall or re-examine the person already examined, but such a course of action is only permissible if it is satisfied that the plea is not made to fill in the lacuna and that the non-summoning of the witnesses would cause serious prejudice to the accused.

The court on September 2 dismissed a plea by Neha Begum and others, facing trial in a murder case in Dibrugarh in Assam, to recall some of the witnesses for cross-examination. The sessions court and the Gauhati High Court had also rejected their plea in this regard.

The bench said, "Other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial court to invoke the power under Section 311 CrPC."

Their counsel contended the High Court proceeded on a totally wrong premise that the petitioners were simply praying for further cross-examination of the witnesses which could not be accepted as further cross-examination obviously follows re examination and the prosecution had never re-examined the witnesses, thus, the defence could not be allowed to re-cross examine the prosecution witnesses.

The bench, however, found the submission as "fallacious on the face of the record".

Though the trial court made a passing observation in this regard, the High Court dealt with factual aspects of the matter and found the grounds made in the application to recall witnesses as vague and unsubstantiated, the bench said.

The bench pointed out Section 311 CrPC operated in two parts, the first part clothed the court with a power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandated that the court should summon and examine or recall and re-examine such person, if his evidence appears to be essential to the just decision of the case.

"There is nothing on record to suggest that non-summoning of the witnesses for further cross-examination could cause grave prejudice to the accused and that such a cause of action was essential for a just decision of the case," the bench said.