5. No doubt, the power of the Court under Section 311 of the Code of Criminal Procedure are wide enough to recall a witness at any stage, but, the discretion vested in the Court being a judicial discretion, needs to be exercised on sound legal principles, and a witness cannot be recalled merely at the asking of a party. We need to appreciate that the witness coming to depose before the Court, particularly in a criminal trial is doing a public service to the Criminal Justice System. While the Judges as well as the lawyers are compensated for the time they devote to the cases and the party to a case has a personal interest in the litigation, it is the witness alone who has no personal interest or stake in the litigation and therefore, is entitled to receive due respect and protection for the service he renders to the society, by coming forward to depose before a criminal Court. We cannot deny that a common man is reluctant to be a witness, particularly in a criminal case and one major reason behind such reluctance is the innumerable visits he has to undertake, to attend police stations and Courts at the cost of considerable inconvenience to him, without any commensurate benefit. The Courts, therefore, need to realize and appreciate the inconvenience that is caused to a witness if he is repeatedly summoned to suit the convenience or interest of a party to the litigation. Therefore, unless sufficient cause is shown and the Court feels that the interest of justice would suffer irreparably if the witness is not recalled, it would not be appropriate to re-summon the witness who has already been duly examined by the parties to the litigation. This is more so when the witness happens to be a young girl, who is victim of a serious crime such as rape and who in our society is otherwise reluctant to attend the Court. The Courts, therefore, need to be sensitive to the feeling of such a witness and she should not be recalled unless the failure to recall her is likely to result in serious miscarriage of justice.
5 Feb 2010
Dealing with a challenge to the decision of a lower court in refusing to recall a witness for fresh examination, the Delhi High Court in a recent decision took chance to discuss the role of a witness in the Indian criminal justice system to hold it to be a precious one. The High Court went on to say that a person by deposing a witness is actually doing a public service to the justice system.
The High Court inter alia observed;