P.Sanjeeva Rao vs State Of A.

P on 2 July, 2012

Supreme Court of India

P.Sanjeeva Rao vs State Of A.P on 2 July, 2012
Author: T Thakur
Bench: T.S. Thakur, Gyan Sudha Misra
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 874-875 OF 2012

(Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011)

P. Sanjeeva Rao …Appellant

Versus

The State of A.P. …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals arise out of an order dated 29th March, 2011, passed by the High Court of
Judicature for Andhra Pradesh whereby Criminal Revision Petitions No.534 and 710 of 2011 filed by
the appellant have been dismissed and order dated 22nd January, 2011 passed by the Special Judge
for CBI cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld.

3. The appellant is being prosecuted for offences 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 at
Hyderabad. Around the time the prosecution concluded its evidence, the appellant filed Crl. Misc.
Petitions No.18 and 19 of 2011 under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses
No.1 and 2 for cross-examination. The appellant’s case in the said Criminal Misc. Petition No.18 of
2011 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 had been examined, PWs
1 and 2 need be recalled for cross- examination by counsel for the accused-appellant. In Crl. Misc.
Petition No.19 of 2011 the petitioner made a prayer for deferring the cross- examination of
Investigating Officer (PW12) in the case till such time PWs 1 and 2 were cross-examined.

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 P.Sanjeeva Rao vs State Of A.P on 2 July, 2012

4. Both the applications mentioned above were opposed by the prosecution resulting in the
dismissal of the said applications by the Trial Court in terms of its order dated 22nd January, 2011.
The Trial Court observed:

“For what ever be the reasons the cross-examination of PWs 1 and 2 has been
recorded as “nil”. There is nothing to show on the record that the petitioner had
reserved his right to cross examine the witnesses at a later point of time. The dockets
of the Court do not reflect any such intention of the petitioner.”

5. The Trial Court also held that recall of PWs 1 and 2 for cross- examination more than 3 and ½
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. The Trial Court was of the view that the appellant had
adopted a casual and easy approach towards the trial procedure and that he could not ask for the
recall of any witness without cogent reasons.

6. Aggrieved by the order passed by the Trial Court the appellant filed two revision petitions before
the High Court which, as noticed earlier, have been dismissed by the High Court in terms of the
order impugned in these appeals. The High Court took the view that PWs 1 and 2 had been
examined on 13th June, 2008 and 31st July, 2008 respectively followed by examination of nearly
one dozen prosecution witnesses. The High Court 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 prosecution witnesses No.1 and 2. The
revision petitions were accordingly dismissed.

7. Appearing for the appellant Mr. A.T.M Ranga Ramanujan, learned senior counsel, contended that
the Trial Court as also the High Court had taken a hyper technical view of the matter without
appreciating that grave prejudice will be caused to the appellant if the prayer for cross- examination
of PWs. 1 and 2 was not granted and the recall of the witnesses for that purpose declined. He
submitted that counsel for the appellant before the Trial Court was under a bona fide belief that the
cross- examination of the prosecution witnesses PWs. 1 and 2, who happened to be the star
witnesses, one of them being the complainant and the other a witness who allegedly heard the
conversation and observed the passing of the bribe to the accused could be conducted after PW-11
had been examined. It was contended that the lawyer appearing before the Trial Court had also filed
a personal affidavit stating that PWs. 1 and 2 had not been cross-examined by him under a bona fide
impression that he could do so after the evidence of the Trap Laying Officer (PW-11) had been
recorded. Mr. Ramanujan urged that while the lawyer may have committed a mistake in presuming
that the prosecution witnesses No. 1 and 2 could be recalled for cross-examination at a later stage
without the Trial Court granting to the accused the liberty to do so, such a mistake should not vitiate
the trial by denying to the appellant a fair opportunity to cross-examine the said witnesses. Heavy
reliance was placed by learned counsel on the decision of this Court in Rajendra Prasad Vs. Narcotic
Cell [1999 SCC (Cri) 1062], in support of his submission that no party to a trial can be denied the
opportunity to correct errors if any committed by it. If proper evidence was not adduced or the
relevant material was not brought on record due to any inadvertence, the Court should be
magnanimous in permitting such a mistake to be rectified.

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 P.Sanjeeva Rao vs State Of A.P on 2 July, 2012

8. Appearing for the respondent Mr. H.P. Rawal, learned Additional Solicitor General, contended
that while cross-examination of PWs. 1 and 2 could be deferred at the option of the accused to a later
stage, the Court record does not show any such request having been made or any liberty being
reserved to the accused. It was, according to Mr. Rawal, a case where an opportunity to
cross-examine had been given to the accused and his counsel but they had chosen not to avail of the
same, in which case a belated request for recall of the witnesses to exercise the right to
cross-examine could and has been rightly rejected by the Trial Court and that rejection affirmed by
the High Court. It was also submitted that the recall of the prosecution witnesses, who have gone
without cross-examination at an earlier stage, is likely to prejudice the prosecution inasmuch as the
incident in question is as old as of the year 2005, while the request for recall was made only in the
year 2011, nearly four years after the framing of the charges against the appellant.

9. The appellant who was working as Sub Divisional Officer in the B.S.N.L., Karimnagar, is accused
of having demanded and received a bribe of Rs.3,000/- from the complainant who was examined as
PW1 at the trial. The trap led by the CBI in which PW2 was associated as an independent witness is
said to have succeeded in catching the petitioner red-handed with the bribe money eventually
leading to the filing of a charge-sheet against him before the Court of Special Judge for CBI cases at
Hyderabad in March, 2005. Charges were framed against the petitioner on 7th December, 2006.
While PW1, the complainant in the case, was examined on two different dates i.e. 3rd March, 2008
and 13th June, 2008, prosecution witness No.2 was similarly examined on 18th July, 2008 and 31st
July, 2008. It is common ground that both the witnesses have stood by the prosecution case for they
have not been declared hostile by the prosecution. This implies that the depositions of the two
witnesses are incriminating against the appellant and in the absence of any cross-examination their
version may be taken to have remained unchallenged. It is also common ground that PWs. 3 to 11
were examined during the period 31st July, 2008 and 28th December, 2011. The Trap Laying Officer
(PW 11) was examined on 18th February, 2010 and on 1st April, 2010. The two applications referred
to earlier were filed before the Trial Court at that stage, one asking for recall of PWs. 1 & 2 for
cross-examination and the other asking for a deferring that the cross- examination of PW 12 till
PWs. 1 and 2 are recalled and cross-examined.

10. The only question that arises in the above backdrop is whether the decision not to cross-examine
PWs 1 and 2 was for the reasons stated by the petitioner or for any other reason. There is no dispute
that no formal application was filed by the petitioner nor even an oral prayer made before the Trial
Court to the effect that the exercise of the right to cross- examine the two witnesses was being
reserved till such time the Trap Laying Officer was examined. This is precisely where counsel for the
appellant has stepped in and filed a personal affidavit in which he has stated that even though there
is no formal prayer made to that effect he intended to cross-examine the two witnesses only after the
deposition of the Trap Laying Officer was recorded. In the peculiar circumstances of the case, we
feel that the version given by the counsel may indeed be the true reason why two witnesses were not
cross-examined on the conclusion of their examination-in-chief. We say so primarily because no
lawyer worth his salt especially one who had sufficient experience at the Bar like the one appearing
for the appellant would have let the opportunity to cross-examine go unavailed in a case where the
witnesses had supported the prosecution version not only in regard to the demand of bribe but also
its payment and the success of the trap laid for that purpose. There is no gainsaying that every

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 P.Sanjeeva Rao vs State Of A.P on 2 July, 2012

prosecution witness need not be cross-examined by the defence. It all depends upon the nature of
the deposition and whether the defence disputes the fact sought to be established thereby. Formal
witnesses are not at times cross-examined if the defence does not dispute what is sought to be
established by reference to his/her deposition. 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 the complainant examined as PW1 and the shadow witness examined as PW2 had clearly
indicted the appellant and 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. The two witnesses doubtless provided the very basis of the case against the appellant and
should their testimony have remained unchallenged, there was nothing much for the appellant to
argue at the hearing. The depositions would then be taken to have been accepted as true hence
relied upon. We may, in this connection, refer to the following passage from the decision of this
Court in Sarwan Singh v. State of Punjab (2003) 1 SCC 240:

“It is a rule of essential justice that whenever the opponent has declined to avail
himself of the opportunity to put his case in cross-examination it must follow that the
evidence tendered on that issue ought to be accepted.”

11. We are, therefore, inclined to believe that the two prosecution witnesses were not
cross-examined by the counsel for the appellant not because there was nothing incriminating in
their testimony against the appellant but because counsel for the appellant 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 deferred may be a mistake which could be avoided and which
may have saved the appellant a lot of trouble in getting the witnesses recalled. But merely because a
mistake was committed, should not result in the accused suffering a penalty totally disproportionate
to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses
for cross-examination would amount to condemning the appellant without giving him the
opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite
that the credibility of witnesses whether in a civil or criminal case can be tested only when the
testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result
in a serious miscarriage of justice in the present case keeping in view the serious consequences that
will follow any such denial.

12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall
witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors. (2008) 15
SCC 652. This Court held that the object underlying Section 311 was to prevent failure of justice on
account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in
the statements of the witnesses. This Court observed:

“This is a supplementary provision enabling, and in certain circumstances imposing

on the Court, the duty of examining a material witness who would not be otherwise
brought before it. It is couched in the widest possible terms and calls for no
limitation, either with regard to the stage at which the powers of the Court should be

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 P.Sanjeeva Rao vs State Of A.P on 2 July, 2012

exercised, or with regard to the manner in which it should be exercised. It is not only
the prerogative but also the plain duty of a Court to examine such of those witnesses
as it considers absolutely necessary for doing justice between the State and the
subject. There is a duty cast upon the Court to arrive at the truth by all lawful means
and one of such means is the examination of witnesses of its own accord when for
certain obvious reasons either party is not prepared to call witnesses who are known
to be in a position to speak important relevant facts.

The object underlying Section 311 of the Code is that there may not be failure of
justice on account of mistake of either party in bringing the valuable evidence on
record or leaving ambiguity in the statements of the witnesses examined from either
side. The determinative factor is whether it is essential to the just decision of the case.
The section is not limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the Court to summon a witness under the Section
merely because the evidence supports the case of the prosecution and not that of the
accused. The section is a general section which applies to all proceedings, enquires
and trials under the Code and empowers the Magistrate to issue summons to any
witness at any stage of such proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is "at any stage of inquiry or trial or other
proceeding under this Code". It is, however, to be borne in mind that whereas the
section confers a very wide power on the Court on summoning witnesses, the
discretion conferred is to be exercised judiciously, as the wider the power the greater
is the necessity for application of judicial mind.” (emphasis supplied)

13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair
trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC
430. The following passage is in this regard apposite:

“In such circumstances, if the new Counsel thought to have the material witnesses
further examined, the Court could adopt latitude and a liberal view in the interest of
justice, particularly when the Court has unbridled powers in the matter as enshrined
in Section 311 of the Code. After all the trial is basically for the prisoners and courts
should afford the opportunity to them in the fairest manner possible.” (emphasis
supplied)

14. The extent and the scope of the power of the Court to recall witnesses was examined by this
Court in Mohanlal Shamji Soni v. Union of India & Anr. 1991 Supp (1) 271, where this Court
observed:

“The principle of law that emerges from the views expressed by this Court in the
above decisions is that the criminal court has ample power to summon any person as
a witness or recall and re-examine any such person even if the evidence on both sides
is closed and the jurisdiction of the court must obviously be dictated by exigency of
the situation, and fair-play and good sense appear to be the only safe guides and that

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 P.Sanjeeva Rao vs State Of A.P on 2 July, 2012

only the requirements of justice command and examination of any person which
would depend on the facts and circumstances of each case.” (emphasis supplied)

15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge
Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through
LRs. 2012 (3) SCALE

550. A timely reminder of that solemn duty was given, in the following words:

“What people expect is that the Court should discharge its obligation to find out
where in fact the truth lies. Right from inception of the judicial system it has been
accepted that discovery, vindication and establishment of truth are the main
purposes underlying the existence of the courts of justice.”

16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after
they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll
on the human memory apart from breeding cynicism about the efficacy of the judicial system to
decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed
by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be
wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and
looking to the consequences of denial of opportunity to cross-examine the witnesses, we would
prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution
against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our
judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is
not even a price, leave alone one that would justify denial of a fair opportunity to the accused to
defend himself.

17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the
High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court
and an opportunity to cross-examine the said witnesses afforded to the appellant. In fairness to the
counsel for the appellant, we must record that he assured us that given an opportunity to examine
the witnesses the needful shall be done on two dates of hearing, one each for each witness without
causing any un-necessary delay or procrastination. The Trial Court shall endeavour to conclude the
examination of the two witnesses expeditiously and without unnecessary delay. The parties shall
appear before the Trial Court on 6th August, 2012.

……………………….……..……J.

(T.S. THAKUR) ………………………….…..……J.

(GYAN SUDHA MISRA) New Delhi July 2, 2012

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