AG versus SHIV KUMAR YADAV &ANR.
[2015] 10 S.C.R. 455, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2015] 10 S.C.R. 455 
AG 
v. 
SHIV KUMAR YADAV &ANR. 
(Criminal Appeal Nos. 1187-1188 of 2015) 
SEPTEMBER 10, 2015 
[JAGDISH SINGH KHEHAR AND 
ADARSH KUMAR GOEL, JJ.] 
A 
B 
Code of Criminal Procedure, 1973- s. 311 - Power to c 
summon material witness, or examine person present -_ 
Matter pertaining to commission of rape - Application u/s. 
311 "for recall of prosecution witnesses, at the stage when 
statement of accused has been recorded - Plea raised that 
the defence counsel was not competent and had not 0 
effectively cross-examined the witnesses - Held: Recall 
could be permitted if essential for the just decision - Recall 
is not a matter of course and discretion given to the court 
has to be exercised judiciously to prevent failure of justice -
Instant case is in the category of cases where the trial is E 
required to be fast tracked - While advancement of justice 
remains the prime object of law, recall cannot be allowed for 
the asking or reasons related to mere convenience -
Witnesses cannot be expected to face the hardship of 
appearing in court repeatedly, particularly in such sensitive F 
cases - It can result in undue hardship for victims, especially 
so, of heinous crimes, if they are required to repeatedly 
appear in court to face cross-examination - It would result in 
undue delay in the trial - High Court did not assign a single 
specific reason as to how recall of as many as 13witnesse~ G 
was necessary as. directed in the impugned order - Thus, 
the
order passed by the High Court is set aside and 
application for recall is dismissed-Administration of criminal 
justice. 
455 
H
456 
SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
A 
Judicial notice - Retrial on the ground of unfitness of 
the counsel- Court taking notice of- Since interest of society 
is paramount and instead of trials being conducted again on 
account of unfitness of the counsel, reforms are necessary 
so that such a situation does not arise - There is a need to 
B review the Advocates Act and the relevant Rules to examine 
the continued fitness of an advocate to conduct a criminal 
trial by the concerned Authorities including the Law 
Commission and the Bar Council of India - Advocates Act, 
1961. 
c 
Allowing the appeals, the Court 
HELD: 1.1 While advancement of justice remains the 
prime object of law, it cannot be understood that recall 
0 can be allowed for the asking or reasons related to mere 
convenience. It has normally to be presumed that the 
counsel conducting a case is competent particularly 
when a counsel is appointed by choice of a litigant. 
Taken to its logical end, the principle that a retrial must 
E follow on every change of a counsel, can have serious 
consequences on conduct of trials and th~ criminal 
justice system. Witnesses cannot be expected to face 
the hardship of appearing in court repeatedly, particularly 
in sensitive cases such as the present one. It can result 
F in undue hardship for victims, especially so, of heinous 
· crimes, if they are required to repeatedly appear in court 
to face cross-examination. The interest of justice may 
suffer if the
counsel conducting the trial is physically or 
mentally unfit on account of any disability. The interest 
G of the society is paramount and instead of trials being 
conducted again on account of unfitness of the counsel, 
reform may appear to be necessary so that such a 
situation does not arise. [Paras 15, 16] [477-F-H; 478-A-
H B] 
1.2 The instant case is in the category of cases where
AG v. SHIV KUMAR YADAV &ANR. 
457 
the trial is required to be fast tracked. Referring to the A 
ground of the earlier counsel not being competent, the 
trial court observed that the counsel was of the choice 
of the accused. The accused was not facing a criminal 
trial for the first time. The cross-examination of witnesses 
was deferred time and again to enable the counsel to B 
seek instructions from the accused. lnspite of the High 
Court not having found any fault in the conduct of the 
proceedings, it held that "although recalling of all the 
prosecution witnesses is not necessary~· recall of certain 
witnesses was necessary for the reasons given in the C 
application of the accused. It was observed that the 
accused was in custody and if he adopted delaying 
tactics it is qnly he who would suffer. It is difficult to 
approve the view taken by the High Court. [Para 22, 26 0 
and 27) [484-H; 485-A; 492-C-E] 
1.3 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. is beyond any doubt. 
Not a single specific,reason has been assigned by the E 
High Court as to how in the instant case recall of as many 
as 13 witnesses was necessary as directed in the 
impugned order. No fault has been found with the 
reasoning of the order of the trial court. The High Court 
rejected on merits the only two reasoi:is pressed before F 
it that the trial was hurried and the counsel was not 
competent. In
the face of rejecting these grounds, 
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 G 
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 H 
witnesses to be recalled which could not be justified on
458 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A the ground that the accused was in custody and that he 
would only suffer by prolonging of the proceedings. 
Certainly recall could be permitted if essential for the just 
decision but not on such consideration as has been 
adopted in the instant case. Mere observation that recall 
B was necessary "for ensuring fair trial" is not enough 
unless there are tangible reasons4:o show how the fair 
trial suffered without recall. Recall is not a matter of 
course and the discretion given to the court has to be 
exercised judtciously to prevent failure of justice and not 
C 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 
0 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. In view 
thereof, there is no ground to justify the recall of 
E witnesses already examined. [Para 27] [492-E-H; 493-A-
D] 
1.4 The High Court allowed the prayer of the 
accused, even while finding no error in the view taken 
by the trial court, merely by saying tf'iat exercise of power 
F was required for granting fair and proper opportunity to 
the accused. No reasons have been recorded in support 
of this observation. On the
contrary, the view taken by 
the trial court rejecting the stand of the accused was 
affirmed. Thus, the conclusion appears to be 
G inconsistent with the reasons in the impugned order. 
[Para 28] [493-F-G] 
1.5 The view of the High Cour:t is disapproved due 
to the following reasons: 
,, 
H 
(i) The trial court and the High Court held that the
AG v. SHIV KUMAR YADAV &ANR. 
459 
accused had appointed counsel of his choice. He A · 
was facing trial in other cases also . .,.he earlier 
counsel were given due opportunity and had duly 
conducted cross-examination. They were under no 
handicap; 
(ii) No finding could be recorded that the counsel 
appointed by the accused were incompetent 
particularly at back of such counsel; 
B 
(iii) Expeditious trial in a heinous offence as is alleged c 
in the instant case is in the interests of justice; 
(iv) The trial court as well as the High Court rejected 
the reasons for recall of the witnesses; 
(v) The court has to keep in mind not only the need D 
for giving fair opportunity to the accused but also 
the need for ensuring that the victim of the crime is 
not unduly harassed; 
(vi) Mere fact that the accused was in custody and E 
that he will suffer by the delay could be no 
consideration for allowing recall of witnesses, 
particularly at the fag end of the trial; 
(vii) Mere change of counsel cannot be ground to F 
recall the witnesses; 
(viii) There is no basis for holding that any prejudice 
will be caused to the accused unless the witnesses 
are recalled; 
G 
(ix) The High Court has not rejected the reasons 
given by the trial court nor given any justification for 
permitting recall of the witnesses except for making 
general observations that recall was necessary for H
460 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
ensuring fair trial. This observation is contrary to the 
reasoning of the High Court in dealing with the 
grounds for recall, i.e., denial of fair opportunity on 
account of incompetence of earlier counsel or on 
. B 
c 
D 
E 
F 
G 
H 
account of expeditious proceedings; 
(x) There is neither any patent error in the approach 
adopted by the trial court rejecting the prayer for 
recall nor any clear injustice if such prayer is not 
granted. [Para 29) [494-A-H, 495-A-C] 
1.6 The impugned order passed by the High Court 
is set aside and the application for recall is dismissed. 
[Para 30) [495-D] 
Rajaram Prasad Yadav vs. State of Bihar 2013 
(7) SCR 420: (2013) 14 SCC 461; Mannan Sk 
VS. State of West Bengal (2014) 13 sec 59; P. 
Sanjeeva Rao vs. State of A.P. 2012 (6) SCR 787: 
(2012) 7 SCC 56; State of Punjab vs. Gurmit Singh 
1996 (1) SCR 532: (1996) 2 sec 384; State of 
Karnataka VS. Shivanna (2014) 8 sec 916; 
Hoffman Andreas vs. Inspector of Customs (2000) 
10 SCC 430; Dayal Singh vs. State of Uttarancha/ 
2012 (10) SCR 157: (2012) 8 SCC 263; Devender 
Pal Singh vs. State (NCT of Delhi) 2002 (2) SCR 
767: (2002) 5 sec. 234; NHRC vs. state of 
Gujarat 2009 (7) SCR 236: (2009) 6 SCC 767; 
Swaran Singh vs. State of Punjab 2000 (3) SCR 
. 572 : (2000) 5 SCC 668; P. Ramachandra Rao 
VS. State of Karnataka (2002) 4 sec 578; Delhi 
Domestic Working Women' Forum vs. Union of 
India 1994 (4) Suppl. SCR 528: (1995) 1 SCC 
14;
Natasha Singh vs. CBI 2013 (5) SCR 539: 
(2013) 5 SCC 741; Mohan/a/ Shamji Soni vs. 
Union of India 1991 (1) SCR 712: (1991) Supp.
AG v. SHIV KUMAR YADAV &ANR. 
1 SCC 271; Zahira Habibul/a H. Sheikh vs. State 
ofGujarat2004(3) SCR 1050: (2004) 4SCC 158; 
Sister Mina Lalita Baruwa vs. State of Orissa 2013 
(16) SC~ 788: (2013) 16 SCC 173; Raminder 
Singh vs. State Crl.M.C.847912006 & Crl.M.A. 
1435912006 decided on 20.02.2008 (Delhi H.C.); 
Rama Paswan vs. State of Jharkhand 2007 (5) 
SCR 83: (2007) 11 SCC 191; Nisar Khan vs. State 
of Uttaranchal (2006) 9 SCC 386; Hussainara 
Khatoon (/) vs. Home Secy. State of Bihar 1979 
(3) SCR 169: (1980) 1 SCC 81; Vijay Kumar vs. 
State of U.P 2011 (11) SCR 893: (2011) 8 sec 
136; Kishore Chand vs. State of Himachal 
Pradesh 1990 (1) Suppl. SCR 105: (1991) 1 SCC 
286; Hardeep Singh vs. State of Punjab 2008 (15) 
SCR 735: (2009) 16 SCC 785; Ram Chandervs. 
State of Haryana 1981 (3) SCR 12: (1981) 3 SCC 
191; State of Rajasthan vs. Ani@ Hanif 1997 (1) 
SCR 199: (1997) 6 SCC 162; Ritesh Tewari vs. 
State ofU.P 2010 (11) SCR 589: (2010) 10 SCC 
677; Maria Margarida Sequeria Fernandes vs. 
Erasmo Jack De Sequeria (dead) through Lrs. 
2012 (3) SCR 841: (2012) 5 SCC 370; Rajeshwar 
Prosad Misra vs. State of West Bengal (1966) 1 
SCR 178; Jamatraj Kewalji Govanivs. The State 
of Maharashtra (1967) 3 SCR 415; Raghunandan 
vs. State of U.P 1974 (3) SCR 92: (1974) 4 sec 
186; Shailendra Kumar vs. State of Bihar 2001 
(5) Suppl. SCR 371: (2002) 1 SCC 655; Satyajit 
Banerjee vs. State of West Bengal 2004 (6) Suppl. 
SCR 294: (2005) 1 SCC 115; U. T. of Dadra & 
Haveli vs.
Fatehsinh Mohansinh Chauhan 2006 
(4) Suppl. SCR 522: (2006) 7 SCC 529; lddar 
vs. Aabida 2001 (8) SCR 518: (2007) 11 sec 
211; HimanshuSinghSabharwalvs. StatedfM.P 
461 
A 
B 
c 
D 
E 
F 
G 
H
462 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
2008 (4) SCR 783: (2008) 3 SCC 602; Godrej 
Pacific Tech. Ltd. vs. Computer Joint India Ltd. 
2008 (11) scR 571: (2008) 11 sec 108; 
Hanuman Ram vs. The State of Rajasthan 2008 
(14) SCR 348: (2008) 15 SCC 652; Sudevanand 
vs. State through CBI 2012 (2) SCR 139: (2012) 
3 SCC 387; Mohd. Hussain@JulfikarA/ivs. The 
State (Govt. of NCT) Delhi AIR (2012) SC 750: 
2012 (1) SCR 64; J. Jayalalithaa vs. State of 
Karnataka (2014) 2 SCC 401; Salamat Ali vs. 
State Crl.A. No.242/2010, High Court of Delhi; 
State (NCT of Delhi) vs. Navjot Sandhu 2005 (2) 
Suppl. SCR 79: (2005) 11 sec 609; Mir. Mohd. 
Omar vs. State of WB. 1989 (3) SCR 735: (1989) 
4 SCC 436; Lt. Col. S.J. Chaudharyvs. State (Delhi 
Administration) 1984 (2) SCR 438: (1984) 1 SCC 
722; State of UP. vs. Shambhu Nath Singh 2001 
(2) SCR 854: (2001) 4 SCC 667; Aki/ @ Javed 
vs. State of NCT of Delhi 2012 (13) SCR 659: 
(2013) 7 SCC 125; Vinod Kumar vs. State of 
Punjab 2015 (1) SCR 504: (2015) 1SCALE542; 
Jasbir Singh vs. State of Punjab 2006 (7) Suppl. 
SCR 174: (2006) 8 sec 294- referred to. 
Case Law Reference 
2013 (7) SCR 420 
referred to. 
Para 6 
(2014) 13 sec 59 
referred to. 
Para 6 
2012 (6) SCR 787 
referred to. 
Para 6 
1996 (1) SCR 532 
referred to. 
Para 6 
(2014) 8 sec 916 
referred to. 
Para 6,18 
(2000) 1 o sec 430 
referred to. 
Para 6
AG v. SHIV KUMAR YADAV &ANR. 
463 
2012 (10) SCR 157 
referred to. 
Para 6 
A 
2002 (2) SCR 767 
referred to. 
Para 6 
2009 (7) SCR 236 
re.ferred to. 
Para 6 
· 2000 (3) SCR 572 
referred to. 
Para 6 
B 
(2002) 4 sec 578 
referred to. 
Para 7 
1994 (4) Suppl. SCR 528 
referred to. 
Para 7 
2013 (5) SCR 539 
referred to. 
Para 7 
c 
1991 (1) SCR 712 
referred to. 
Para 7 
2004 (3) SCR 1050 
referred to. 
Para 7 
2013 (16) SCR 788 
referred to. 
Para 7 
D 
2007 (5) SCR 83 
referred to. 
Para 7 
(2006) 9 sec 386 
referred to. 
Para 7 
1979 (3) SCR 169 
referred to. 
Para 7 
E 
2011 (11) SCR 893 
referred to . 
Para 7 
. 
1990 (1) Suppl. SCR 105 referred to. 
Para 8 
F 
2008 (15) SCR 735 
referred to. 
Para 8 
1981 (3) SCR 12 
referred to. 
Para 8 
1997 (1) SCR 199 
referred to. 
Para 8 
G 
2010 (11) SCR 589 
referred to. 
Para 8 
2012 (3) SCR 841 
referred to. 
Para 8 
(1966) 1 SCR 178 
referred to. 
Para 8 
H
464 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
(1967) 3 SCR 415 
referred to. 
Para 8 
1974 (3) SCR 92 
referred to. 
Para 8 
2001 (5) Suppl. SCR 371 
referred to. 
Para 8 
B 
2004 (6) Suppl. SCR 29~ referred to. 
Para 8 
2006 (4) Suppl. SCR 522 referred to. 
Para 8 
2007 (8) SCR 518 
referred to. 
Paras 
c 
200S (4) SCR 7S3 
referred to. 
Para S 
200S (11) SCR 571 
referred to. 
Para S 
200S (14) SCR 34S 
referred to. 
Para S 
D 
2012 (2) SCR 139 
referred tO. 
Paras 
2012 (1) SCR 64 
referred to. 
Paras 
(2014) 2 sec 401 
referred to. 
Paras 
E 
2005 (2) Suppl. SCR 79 
referred to. 
Para 17 
19S9 (3) SCR 735 
referred to. 
Para 20 
19S4 (2) SCR 43S 
referred to. 
Para 23 
F 
2001 (2) SCR S54 
referred to. 
Para 23 
2012 (13) SCR 659 
referred to. 
Para 23 
2015 (1) SCR 504 
referred to. 
Para 23 
G 
2006 (7) Suppl. SCR 174 referred to. 
Para 28 
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal 
Nos. 1187-1188 of 2015. 
H 
From the Judgment and Order dated 04.03.2015 of the
AG v. SHIV KUMAR YADAV &ANR. 
465 
High Court of Delhi at New Delhi in Crl. M.C. 725 of 2015 and A 
Crl. MA 2765 of2015. 
WITH 
CRL.A. NOS.1191-1192of2015 
B 
Mukul Rohatgi, AG, P.S. Patwalia, ASG, Kailash Vasdev, 
Colin Gonsalves, Devanshee P., Ajay Sharma, Binu Tamta, 
Samit, Ranjeeta Rohatgi, Gurmehar Sistani, Archit Upadhyay, 
Dhruv Sheoran, Natasha Vinayak, Rajat Singh, Sukhmani, (for 
D.S. Mahra) Sumeeta Choudhary, Satya Mitra, Divya Jyoti C 
Jaipuriar for the Appellant. 
D.K. Mishra,AnkitAggarwal, M.Z.Ali,Abhinav Mishra, (for 
Bankey Bihari) for the Respondents. 
D 
The Judgment of the Court was delivered by 
ADARSH KUMAR GOEL, J. 1. Leave granted. The issue 
raised for consideration in these appeals is whether recall of 
witnesses, at the stage when statement of accused under E 
Section 313 of the Code of Criminal Procedure ("Cr.P.6.") has 
been recorded, could be allowed on the plea that the defence 
counsel was not competent and had not effectively cross-
examined the witnesses, having regard to the facts and 
circumstances of this case. 
F 
2. Facts relevant for deciding the issue lie in a narrow 
compass. On Sth December, 2014, a First Information Report 
was lodged alleging that the respondent accused who was 
the driver of cab No.DL-1YD-7910, SwiftDezire, hire(:! by the G 
victim on 5th December, 2014 for returning home from her-0ffice 
committed rape on her. The statement of the prosecutrix was 
recorded under Section 164 Cr.P.C. on 81h December, 2014. 
After
investigation, charge sheet was filed before the 
Magistrate on 241h December, 2014. Since the accused was H
466 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
not represented by counsel, he was provided legal aid counsel. 
Thereafter on 2nct January, 2015, the accused engaged his 
private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in 
place of the legal aid counsel. Thereafter, the case was 
committed to the Court of Session. Charges were framed on 
B 
13th January, 2015. Prosecution evidence commenced on 15th 
January, 2015 and was closed on 31•1 January, 2015. The 
witnesses were duly cross-examined by the counsel engaged 
by the accused. Statement of the accused under Section 313 
Cr.PC. was recorded on 3rct February, 2015. On 4th February, 
C 2015,,an application for recall of prosecutrix PW2 ar:id formal 
witness PW-23 who booked the cab was made, but the same 
was rejected and the said order was never challenged. 
Thereafter, on 9th February, 2015, the accused engaged 
0 
another counsel, who filed another application under Section 
311 Cr.P.C. for recall of all the 28 prosecution witnesses on 
16th February, 2015. The said application was dismissed on 
18th February by the trial court but the same was allowed by 
the High Court vide impugned order dated 4th March, 2015 in 
E a petition filed under Article 227 of the Constitution of India 
read with Section 482 Cr.PC. Even though the specific 
grounds"urged in the application were duly considered and 
rejected, it was observed that recall of certain witnesses was 
deemed proper for ensuring fair trial. 
F 
3. Aggrieved by
the order of the High Court, the victim as 
well as the State have moved this Court. 
4. On 101h March, 2015, when the matter came up for 
hearing before this Court, stay of further proceedings was 
G granted but since the prosecutrix had already been recalled in 
pursuance of the impugned order and further cross-examined, 
the said deposition was directed to be kept in the sealed cover 
and publication thereof by anyone in possession thereof was 
H restrained.
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
467 
5. We have heard learned Attorney General appearing for A 
the State, Shri Colin Gonsalves, learned senior counsel 
appearing for the victim and Shri D.K. Mishra, learned counsel 
appearing 
· 
for 
the accused. 
6. Learned Attorney General submitted that the view taken 
by the High Court was erroneous and true scope of power of 
recall has not been appreciated. Firstly, though the power of 
recall is very wide and could ~e exercised at any stage, it could 
B 
not be exercised mechanically, without just and adequate C 
grounds. At the end of the trial, exercise of such power was 
permissible only in exceptional situations. Once trial is 
conducted by a counsel, another counsel could not seek retrial 
or recall of all the witnesses merely by alleging that the previous 
counsel was not competent. At any rate, the court permitting D 
such a course must record cogent reasons. Secondly, 
harassment of the victim on being recalled for cross-
examination was a relevant factor which was required to be 
taken into account. Thirdly, expeditious trial in a heinous offence 
was another factor which was required to be taken into account. E 
In this case, a further factor which the impugned order ignores 
is that the respondent was not facing a criminal case for the 
first time. He was facing three cases of rape earlier and was 
well conversant with the legal matters. He had made his own 
F 
informed choice in appointing a
counsel. Interference by the 
High Court was permissible only when the view taken by the 
trial court declining prayer for recall was found to be perverse 
or unjust. It was further pointed out that the conclusion recorded 
by the High Court was contrary to the findings in the order G 
rejecting various grounds raised in support of prayer for recall. 
Learned Attorney General made reference to decisions of this 
Court in Rajaram Prasad Yadavvs. State of Bihal", Mannan 
1 (2013) 14 sec 461 
H
468 
SUPREME COURT REPORTS 
[2015] 10S.C.R. 
A Sk vs. State of West BenqaP, P. Sanjeeva Rao vs. State of 
A;P.3, State of Punjab vs. Gurmit Singh', State of Kamataka 
vs. Shivanna5, Hoffman Andreas vs. Inspector of 
Customs6, Dayal Singh vs. State of Uttaranchal7, 
Devender Pal Singh vs. State (NCT of Delhi}', 
B NHRC vs. State of Gujarat!', Swaran Singh vs. State of 
Punjab10• 
7. Shri Gonsalves, learned senior counsel adopted the 
submissions of learned Attorney General and further submitted 
C that the High Court appears to have been impressed by the 
fact that the accused was in custody and thus had no reason 
to delay the trial. A presumption that an accused in custody 
will not delay the trial was not well founded and could not be a 
valid consideration for retrial or recall of prosecutrix and other 
D witnesses. The prosecutrix had already faced court 
proceedings while recording her statement under Section 164 
Cr.P. C. and while facing cross-examination for three days. He 
also placed reliance on P. Ramachandra Rao vs. State of 
Karnataka11, Delhi Domestic Working Women' Forum vs. 
E Union oflndia12, Natasha Singh vs. CB/13, Mohan/al Shamji 
2 (2014) 13 sec 59 
' (2012) 7 sec 56 
F 
• (1996) 2 sec 384 
• (2014) 8 sec 916 
• (2000) 10 sec 430 
1 (2012) 8 sec 263 
G 
• (2002) 5 sec 234 
• (2009) 6 sec 767 
1• (2000) 5 sec 668 
11 (2002) 4 sec 578 
12 (1995) 1 sec 14 
H 
" (2013) 5 sec 741
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
469 
Soni vs. Union of lndia14, Zahira Habibulla H. Sheikh vs. A 
· State of Gujarat15; Sister Mina· Lalita Baruwa vs. State of 
Orissa16, Raminder Singh vs. State17, Rama Paswan vs. 
State of Jharkhand18, Nisar Khan vs. State of UttarancharP, 
Hussainara Khatoon OJ vs. Home Secv. State of Biharo 
and Vijay Kumar vs. State of U.P.21• 
B 
8. Learned counsel for the respondent-accused 
supported the impugned order and submitted that though the 
previous counsel had cross-examined the witnesses, he had 
not asked relevant questions nor given suggestions which were C 
required to be given. He placed reliance on Kishore Chand 
vs. State of Himachal Pradesh22, Hardeep Singh vs. State 
of Punjab23, Ram Chander vs. State of Harvana24, State of 
Rajasthan vs. Ani @ HaniP5, Ritesh Tewari vs. State of 
U.P. 26, Maria Margarida Segueria Fernandes vs. Erasmo D 
Jack De Segueria (dead) through Lrs. 27, Rajeshwar 
Prasad Misra vs. State of West Benqa/28, Jamatraj Kewa/ii 
" (1991 l supp. 1 sec 211 
" (2004 l 4 sec 1 s8 
1• (2013) 16 sec 113 
17 CrU!'l.C.847912006 & Crt.M.A. 14359/2006, decided on 20:02.2008 (Delhi 
H.C.) 
1• (2001) 11 sec 191 
" (2006) 9 sec 386 
20 (1980) 1 sec 81 
21 (2011) 8 sec 136 
22 (1991) 1 sec 286 
23 (2009) 16 sec 785 
,. (1981) 3 sec 191 
" (1997) 6 sec 162 
.. (201 o) 10 sec 677 
21 (2012) 5 sec 310 
28 (1966) 1 SCR 178 
E 
F 
G 
H
470 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A Govani vs. The State of Maharashtra29, Raghunandan vs. 
State of U.P. 30, Shai/endra Kumar vs. State of Bihar1, . 
Satvaiit Banerjee vs. State of West BengaP2, U. T. of Dadra 
& Have/i vs. Fatehsinh Mohansinh Chauhan33, lddar vs. 
Aabida34, Himanshu Singh Sabharwal vs. State of M.P. 35, 
B Godrei Pacific Tech. Ltd. vs. Computer Joint India Ltd.36, 
Hanuman Ram vs. The State of Rajasthan37, Sudevanand 
vs. State through CB/38, Mohd. Hussain @Ju/fikar Ali vs. 
The State (Govt. of NCTJ Delhi39, J. Jayalalithaa vs. State 
of Karnataka4°, Salamat Ali vs. State (Crl.A. No.24212010, 
C High Court of Delhi). 
9. We have considered the rival submissions. 
10. It can hardly be gainsaid that fair trial is a part of 
o guarantee under Article 21 of the Constitution of India. Its 
content has primarily to be determined from the stat1Jtory 
provisions for conduct of trial, though in some matters where 
statutory provisions may be silent, the court may evolve a 
principle of law to meet a situation which has not been provided 
E for. It is also true that principle of fair trial has to be kept in 
mind for interpreting the statutory provisions. 
29 (1967) 3 SCR 415 
'' (1974) 4 sec 186 
F 
" (2002) 1 sec 655 
32 (2005) 1 sec 115 
33 (2006) 7 sec 529 
" (2007) 11 sec 211 
G 
35 (2008) 3 sec 602 
3• (2008) 11 sec 108 
" (2ooa) 15 sec 652 
3• (2012) 3 sec 387 
39 AIR (2012) SC 750 
H '° (2014) 2 sec 401
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
471 
11. It is further well settled that fairness of trial has to be A 
seen not only from the point of view of the accused, but also 
from the pointofviewofthe victim and the society. In the name 
offairtrial, the system cannot be held to ransom. The accused 
is entitled to be represented by a counsel of his choice, to be 
provided all relevant documents, to cross-examine the B 
prosecution witnesses and to lead evidence in his defence. 
The object of provision for recall is to reserve the power with 
the court to prevent any injustice in the conduct of the trial at 
any stage. The power available with the court to prevent injustice 
has to be exercised only if the Court, for valid reasons, feels C 
that injustice is caused to a party. Such a finding, with reasons, 
must be specifically recorded by the court before the power is 
exercised. It is not possible to lay down precise situations 
when such power can be exercised. The Legislature in its 0 
wisdom has left the power undefined. Thus, the scope of the 
power has to be considered from case to case. The guidance 
for the purpose is available in several decisions relied upon 
by the parties. It will be sufficient to refer to only some of the 
decisions for the principles laid down which are relevant for E 
this case . 
. 12. In Raja ram case, the complainant was examined ~ut 
he did not support the prosecution case. On account of 
subsequent events he changed his
mind and applied for recall 
F 
under Section 311 Cr.P.C. which was declined by the trial court 
but allowed by the High Court. This Court held such a course 
to be impermissible, it was observed : 
"13. .. In order to appreciate the stand of the appellant 
it will be worthwhile to refer to Section 311 CrPC, as well G 
as Section 138 of the Evidence Act. The same are 
extracted hereunder: 
Section 311, Code of Criminal Procedure 
H
472 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
"311. Power to summon material witness, or 
examine person present.-Any court may, at any 
stage of any inqui,Y, trial or other proceeding under this 
Code, summon any person as a witness, or examine 
any person in attendance, though not summoned as a 
B 
witness, or recall and re-examine any person already 
examined; and the court shall summon and examine 
or recall and re-examine any such person if his 
evidence appears to it to be essential to the just decision 
of the case." 
c 
D 
E 
* 
* 
* 
Section 138, Evidence Act 
"138. Order of examinations.-Witnesses shall be first 
examined-in-chief then (if the adverse party so desires) 
cross-examined, then (if the party calling him so 
desires) re-examined. 
The examination and cross-examination must relate 
to relevant facts but the cross-examination need not 
be confined to the facts to which the witness testified on 
his examination-in-chief. 
Direction of re-examination.-The re-examination 
F 
shall be directed to the explanation of matters refe"ed 
to in cross-examination; and if new matter is, by 
permission of the court, introduced in re-examination, 
the adverse party may further cross-examine upon that 
matter." 
G 
14. A conspicuous reading of Section 311 CrPC would 
show that widest of the powers have been invested with 
the courts when it comes to the question of summoning 
a Vi(itness or to recall or re-examine any witness already 
H 
examined. A reading of the
provision shows that the
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
473 
expression "any" has been used as a prefix to "court", 
A 
"inquiry", "trial", "other proceeding", "person as a 
witness", "person in attendance though not summoned 
as a witness", and "person already examined". By using 
the said expression "any'' as a prefix to the various 
expressions mentioned above, it is ultimately stated B 
that all that was required to be satisfied by the court was 
only in relation to such evidence that appears to the 
court to be essential for the just decision of the case. 
Section 138 of the Evidence Act, prescribed the order 
of examination of a witness in the court. The order of C 
re-examination is also prescribed calling for such a 
witness so desiredfor such re-examination. Therefore, 
a reading of Section 311 CrPC and Section 138 
Evidence Act, insofar as it comes to the question of a D 
criminal trial, the order of re-examination at the desire 
of any person under Section 138, will have to 
necessarily be in consonance with the prescription 
contained in Section 311 CrPC. It is, therefore, 
imperative that the invocation of Section 311 CrPC and E 
its application in a particular case can be ordered by 
the court, only by bearing in mind the object and purport 
of the said provision, namely, for achieving a just 
decision of the case as noted by us earlier. The power 
vested under the said provision is made available to F 
any court at any stage in any inquiry or trial or other
proceeding initiated under the Code for the purpose of 
summoning any person as a witness or for examining 
any person in attendance, even though not summoned 
as witness or to recall or re-examine any person already G 
examined. Insofar as recalling and re-examination of 
any person already examined is concerned, the court 
must necessarily consider and ensure that such recall 
and re-examination of any person, appears in the view 
of the court to be essential for the just decision of the H
474 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
case. Therefore, the paramount requirement is just 
decision and for that purpose the essentiality of a person 
to be recalled and re-examined has to be ascertained. 
To put it differently, while such a widest power is invested 
with the court, it is needless to state that exercise of 
B 
such power should be made judicially and also with 
extreme care and caution." 
c 
13. After referring to earlier decisions on the point, the 
Court culled out following principles to be borne in mind 
"17. 1. Whether the court is right in thinking that the new 
evidence is needed by it? Whether the evidence sought 
to be led in under Section 311 is noted by the court for 
o 
ajustdecision ofa case? 
E 
F 
G 
H 
17.2. The exercise of the widest discretionary power 
under Section 311 CrPC should ensure that the 
judgment should not be rendered on inchoate, 
inconclusive and speculative presentation of facts, as 
thereby the ends ofjustice would be defeated. 
17.3. If evidence of any witness appears to the court to 
be essential to the just decision of the case, it is the 
power of the court to summon and examine or recall 
and re-examine any such person. 
17.4. The exercise of power under Section 311 CrPC 
should be resorted to only with the object offinding out 
the truth or obtaining proper proof for such facts, which 
will lead to a just and correct decision of the case. 
17. 5. The exercise of the said power cannot be dubbed 
as filling in
a lacuna in a prosecution case, unless the 
fads and circumstances of the case make it apparent 
that the exercise of power by the court would result in
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
475 
causing serious prejudice to the accused, resulting in A 
miscarriage of justice. 
17. 6. The wide discretionary power should be exercised 
judiciously and not arbitrarily. 
B 
17. 7. The court must satisfy itself that it was in every 
respect essential to examine such a witness or to recall 
him for further examination in order to arrive at a just 
decision of the case. 
17.8. The object of Section 311 CrPC simultaneously C 
imposes a duty on the court to determine the truth and 
to render a just decision. 
17.9. The court arrives at the conclusion that additional 
evidence is necessary, not because it would be D 
impossible to pronounce the judgment without it, but 
because there would be a failure of justice without such . 
evidence being considered. 
17.10. Exigency of the situation, fair play and good E 
sense should be the safeguard; while exercising the 
discretion. The court should bear in mind that no party 
in a trial can be foreclosed from correcting errors and 
that if proper evidence was not adduced or a relevant 
material was not brought on record due to any F 
inadvertence, the court should be magnanimous in 
permitting such mistakes to be rectified. 
17.11. The court should be conscious of the position 
that after all the trial is basically for the prisoners and G 
the court shfJuld afford an opportunity to them in the 
fairest manner possible. In that parity of reasoning, it 
would be safe to err in
favour of the accused getting an 
opportunity rather than protecting the prosecution 
against possible prejudice at the cost of the accused. 
H
476 
SUPREME COURT REPORTS 
[2015] 10S.C.R. 
A 
The court should bear in mind that improper or 
capricious exercise of such a discretionary power, may 
lead to undesirable results. 
B 
c 
D 
E 
17.12. The additional evidence must not be received 
as a disguise or to change the nature of the case against 
any of the party 
17. 13. The power must be exercised keeping in mind 
that the evidence that is likely to be tendered, would be 
· germane to the issue involved and also ensure that an 
opportunity of rebuttal is given to the other party. 
17.14. The power under Section 311 CrPC must 
therefore, be invoked by the court only in order to meet 
the ends of justice for strong and valid reasons and the 
same must be exercised with care, caution and 
circumspection. The court should bear in mind that fair 
trial entails the interest of the accused, the victim and 
the society and, therefore, the grant of fair and proper 
opportunities to the persons concerned, must be 
ensured being a constitutional goal, as well as a human 
right." 
14. In Hoffman Andreas case, the counsel who was 
F conducting the case was ill and died during the progress of 
the trial. The new counsel sought recall on the ground that the 
witnesses could not be cross-examined on account of illness 
of the counsel. This prayer was allowed in peculiar 
circumstances with the observation that normally a closed trial 
G could not be reopened but illness and death of the counsel 
was in the facts and circumstances
considered to be a valid 
ground for recall of witnesses. It was obs'erved : 
"6. Normally, at this late stage, we would be disinclined 
H 
to open .up a closed trial once again. But we are .
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
477 
persuaded to consider it in this case on account of the A 
unfortunate development that took place during trial i.e. 
the passing away of the defence counsel midway of the 
trial. The counsel who was engaged for defending the 
appellant had cross-examined the witnesses but he 
could not complete the trial because of his death. When B 
the new counsel took up the matter he would certainly 
be under the disadvantage that he could not ascertain 
from the erstwhile counsel as to the scheme of the 
defence strategy which the predeceased advocate had 
in mind or as to why he had not put further questions on C 
certain aspects. In such circumstances, if the new 
counsel thought tp have the material witnesses further 
examined the Court could adopt latitude and a liberal 
view in the interest of justice, particularly when the Court 0 
has unbridled powers in the matter as enshrined in 
Section 311 pf the Code. After all the trial is basically 
for the prisoners and courts should afford the 
opportunity to them in the fairest manner possible." 
15. The above observations cannot be read as laying down 
any inflexible rule to routinely permit a recall on the ground that 
cross-examination was not proper for reasons attributable to 
E' 
a counsel. While advancement of justice remains the prime 
object of law, it cannot-be understood that recall can be allowed 
F 
for the asking or reasons related to mere convenience. It has
normally to be presumed that the counsel conducting a case 
is competent particularly when a counsel is appointed by 
choice of a litigant. Taken to its logical end, the principle that 
a retrial must follow on every change of a counsel, can have . G 
serious consequences on conduct of trials and the criminal 
justice system. Witnesses cannot be expected to face the 
hardship of appearing in court repeatedly, particularly in 
sensitive cases such as the present one. It can result in undue 
hardship for victims, especially so, of heinous crimes, if they H
478 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
are required to repeatedly appear in court to face cross-
examination . 
• 
16. The interest of justice may suffer if the counsel 
conducting the trial is physically or mentally unfit on account of 
s any disability. The interest of the society is paramount and 
instead of trials being conducted again on account of unfitness 
of the counsel, reform may appear to be necessary so that 
such a situation does not arise. Perhaps time has come to 
review the Advocates Act and the relevant Rules to examine 
C the continued fitness of an advocate to conduct a criminal trial 
on account of advanced age or other mental or physical 
infirmity, to avoid grievance that an ~dvocate who conducted 
trial was unfit or incompetent. This is an aspect which needs 
to be looked into by the concerned authorities including the 
D Law Commission and the Bar Council of India. 
.E 
F 
G 
17. In State (NCT of Delhi) vs. Na'vjot Sandht.r11 , this 
. Court held: 
"167. . . . . . . . . . . we do not think that the Court should 
dislodge the counsel and go on searching for some 
other counsel to the liking of the accused. The right to 
legal aid cannot be taken thus far. It is not demonstrated 
before us as to how the case was mishandled by the 
· advocate appointed as amicus except pointing out stray 
instances pertaining to the cross-examination of one 
or two witnesses. The very decision relied upon by the 
learned counsel for the appellant, namely,
Strickland 
v. Washington makes it clear that judicial scrutiny of a 
counsel's performance must be careful, deferential and 
circumspect as the ground of ineffective assistance 
could be easily raised after an adverse verdict at the 
trial. It was observed therein: 
H " (2oos) 11 sec aoo
AG v. SHIV KUllliAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
479 
"Judicial scrutiny of the counsel's performance must A 
be highly deferential. It is all too tempting for a 
defendant to second-guess the counsel's assistance 
after conviction or adverse sentence, and it is all too 
easy for a court, examining the counsel's defence after 
it has proved unsuccessful, to conclude that a particular B 
act of omission of the counsel was unreasonable. Cf. 
Engle v. Isaac {456 US 107 (1982) at pp. 133-134). A 
fair assessment of attorney performance requires that 
every effort be made to eliminate the distorting effects 
of hindsight, to reconstruct the circumstances of the C 
counsel's challenged conduct, and to evaluate the 
conduct from the counsel's perspective at the time. 
Because of the difficulties inherent in making the 
evaluation, a court ·must indulge in a strong 0 
presumption that the counsel's conduct falls within the 
wide range of reasonable professional assistance; .... " 
18. It may be proper to recall that the present case is in 
the category of cases where the trial is required to be fast 
tracked. In fact this Court directed in Shivanna [(2014) 8 SCC 
E 
916] as under: 
"2. While we propose to consider this matter on merits 
after service of notice to the respondent-accused, we feel 
acutely concerned as to why the Union of India should F 
not take initiative and steps to evolve a procedure for 
fast-track justice to be adopted by the investigating 
agencies and
the Fast Track Courts by proposing 
amendments to CrPC for speedy justice to the victim. 
G 
3. Fast Track Courts no doubt are being constituted for 
expeditious disposal of cases involving the charge of 
rape at the trial stage, but we are perturbed and 
anguished to notice that although there are Fast Track 
Courts for disposal of such cases, we do not yet have a H
480 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
fast-track procedure for dealing with cases of rape and 
gang rape lodged under Section 376 /PC with the result 
that such heinous offences are repeated incessantly. 
4. We are of the considered opinion that there is pressing 
need to introduce drastic amendments to CrPC in. the 
nature of fast-track procedure for Fast Track Courts and 
here is an occasion where we deem it just and appropriate 
to issue notice and call upon the Union of India to file its 
response as to why it should not take initiative and sincere 
steps for introducing necessary amendment into CrPC, 
1973 involving trial for the charge of "rape" by directing 
that all the witnesses who are examined in relation to the 
offence and incident of rape cases should be 
straightaway produced· before the Magistrate for 
recording their statement to be kept in sealed cover and 
thereafter the same be treated as evidence at the stage 
of trial which may be put to test by subjecting it to cross-
examination. We are further of the view that the statement 
of victim should as far as possible be recorded before 
the Judicial Magistrate under Section 164 CrPC skipping 
over the recording of statement by the police under 
Section 161 CrPC which in any case is inadmissible 
except for contradiction so that the statement of the 
accused thereafter be recorded under Section 313 CrPC. 
The accused then can be committed to the appropriate 
court for trial
whereby the trial court can straightaway allow 
cross-examination of the witnesses whose evidence were 
recorded earlier before the Magistrate. 
5. What we wish to emphasise is that the recording of 
evidence of the victim and other witnesses multiple times 
ought to be put to an end which is the primary reason for 
delay of the trial. We are of the view that if the evidence 
is recorded for the first time itself before the Judicial 
Magistrate under Section 164 CrPC and the same be
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
481 
kept in sealed cover to be treated as deposition of the A 
witnesses and hence admissible at the stage of trial with 
liberty to the defence to cross-examine them with further 
liberty to the accused to lead his defence witnesses and 
other evidence with a right to cross-examination by the 
prosecution, it can surely cut short and curtail the B 
protracted trial if it is introduced at least for trial of rape 
cases which is bound to reduce the duration of trial and 
thus offer a speedy remedy by way of a fast-track 
procedure to the Fast Track Court to resort to. 
c 
6. Considering the consistent recurrence of the heinous 
crime of rape and gang rape all over the country including 
the metropolitan cities, we are of the view that it is high 
time such measures of reform in CrPC be introduced 
after due deliberation and debate by the legal frate_rnity D 
as also all concerned. We, therefore, deem it just and 
appropriate to issue notice to the Union of India through 
the Attorney General which the counsel for the petitioner 
is directed to serve by way of dasti summons. The matter 
be posted again on 3-9-2013 for further consideration." E 
. 
19. In continuation of the above, further order dated 25th 
April, 2014 [(2014) 8 sec 913] was passed as follows: 
"10.1. Upon receipt of information relating to the F 
commission of offence of rape, the investigating officer 
shall make immediate steps to take the victim to any
Metropolitan/preferably ~udicial Magistrate for the 
purpose of recording her statement under Section 164 
CrPC. A copy of the statement und.er Section 164 CrPC G 
should be handed over to the investigating officer 
immediately with a specific direction that the contents 
of such statement under Section 164 CrPC should not 
be disclosed to any person till charge-sheet/report 
under Section 173 CrPC is filed. 
H
482 
SUPREME COURT REPORTS 
.[2015) 10S.C.R. 
A 
10.2. The investigating officer shall as far as possible 
take the victim to the nearest Lady Metropolitan/ 
preferably Lady Judicial Magistrate. 
10.3. The investigating officer shall record specifically 
B 
the date and the time at which he learnt about the 
commission of the offence of rape and the date and 
time at which he took the victim to the Metropolitan/ 
preferably Lady Judicial Magistrate as aforesaid. 
c 
D 
E 
F 
G 
H 
10.4. lfthere is any delay exceeding 24 hours in taking 
the victim to the Magistrate, the investigating officer 
should record the reasons for the same in the case diary 
and hand over a copy of the same to the Magistrate. 
10.5. Medical examination of the victim: Section 164-
A CrPC inserted by Act 25 of 2005 in CrPC imposes 
an obligation on the part of investigating officer to get 
the victim of the rape immediately medically examined. 
A copy of the report of such medical examination should 
be immediately handed over to the Magistrate who 
records the statement of the victim under Section 164 
CrPC. 
11. A copy of this order thus be circulated to all the 
Directors General of Police of all the States/ 
Commissioners of Police in Metropolitan cities! 
Commissioners of Police of Union Territories who are 
then directed to send a qopy of this order to all the Police 
Stations-in-Charge in tbelr States/Union Territories for 
its compliance in cases which are registered on or after 
the receipt of
a copy of these directions. Necessary 
instructions by the DGPs!Commissioners of Police be 
also issued to all the Police Stations-in-Charge by the 
DGPs/Commissioners of Police incorporating the 
directions issued by us and recorded hereinbefore."
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
483 
20. In Mir. Mohd. Omar vs. Stateof W.B.'2 after the A 
statement of the accused under Section 313 was recorded, 
the public prosecutor filed an application for his re-examination 
on the ground that some more questions are required to be 
asked. The application was rejected by the trial court but 
allowed by the High Court. This Court disapproved the course B 
adopted and held : 
"16 ........... Here again it may be noted that the 
prosecution has closed the evidence. The accused 
have been examined under Section 313 of the Code. 
C 
The prosecution did not at any stage move the trial. 
Judge for recalling PW 34 for further examination. In 
these circumstances, the liberty reserved to the 
prosecution to recall PW 34 for re-examination is 
undoubtedly uncalled for." 
D 
21. We may also note that the approach to deal with a 
case of this nature has to different from other cases. We may· 
refer to the judgment of this court in Gurmit Singh case, 
wherein it was observed: 
E 
"8. . ........ The courts must, while evaluating evidence, 
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to 
make a humiliating statement against her honour such F 
as is involved in the commission of rape on her. In 
cases involving sexual molestation, supposed 
considerations which have no material effect on the 
veracity of the prosecution case or even discrepancies 
in the
statf!n:ient of the pros~cutrix should not, unless G 
the discrepancies are such which are offatal nature, be 
allowed to throw out an otherwise reliable prosecution 
case. The inherent bashfulness of the females and the 
" (1989) 4 sec 436 
H
484 
A 
B 
SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
tendency to conceal outrage of sexual aggression are 
factors which the courts should not overlook. The 
testimony of the victim in such cases is vital and unless 
there are compelling reasons which necessitate looking 
for corroboration of her statement, the courts should find 
no difficulty to act on the testimony of a victim of sexual 
assault alone to convict an accused where her 
testimony inspires confidence and is found to be 
reliable ....... " 
c 
xxxxx 
21. Of late, crime against women in general and rape 
in particular is on the increase. It is an irony that while 
we are celebrating woman's rights in all spheres, we 
o 
show little or no concern for her honour. It is a sad 
reflection on the attitude of indifference of the society 
towards the violation of human dignity of the victims of 
sex crimes. We must remember that a rapist not only 
violates the victim's privacy and personal integrity, but 
E 
inevitably causes serious psychological as well as 
physical harm in the process. Rape is not merely a 
physical assault -
it is often destructive of the whole 
personality of the victim. A murderer destroys the 
physical body of his victim, a rapist degrades the very 
F 
soul of the helpless female. The courts, therefore, 
shoulder a great responsibility while trying an accused 
on charges of rape. They must deal with such cases 
with utmost ~ensitivity .... " 
G 
22. We may now refer to the orders passed by the
trial 
Court dated 18th February, 2015 and the High Court dated 4th 
March, 2015. Referring to the ground of the earlier counsel 
not being competent, the trial court observed that the counsel 
was of the choice of the accused. The accused was notfacing 
H a criminal trial for the first time.The cross-examination of
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
485 
witnesses was deferred time and again to enable the counsel A 
to seek instructions from the accused. The cross-examination 
of the prosecutrix was deferred on 15th January, 2015 to enable 
the counsel to have legal interview with the accused. After 
part of cross-examination on 16th January, 2015, further cross-
examination was con,cluded on 17th January, 2015. Cross-
B 
examination of PW 13 was deferred on the request of the 
accused. Similarly, cross-examination of Pws·22, 26 and 27 
was deferred on the request of the defence counsel. After 
referring to the record, the trial court observed as under: 
c. 
"22. The aforesaid proceedings clearly bely the claim 
of the accused/applicant that the case has been 
proceeding at a "hurried pace" or that he was not duly 
represented by a defence counsel of his choice. The 
claim of the applicant that he was unwilling to continue D 
with his earlier counsel is also nothing but a bundle of 
lie in as much as the accused never submitted before 
the court that he wants to change his counsel. Rather, 
it is revealed from the record that the earlier counsel, 
Sh. A/ok Kumar was acting as per his instructions and E 
having legal interview with him. The accused cannot 
be permitted to take advantage of his submissions 
made on the first date i.e. 1310112015 that he wants to 
engage a new counsel as his subsequent conduct does F 
not support this submission. I may also add that
before 
proceeding with the case further, I had personally asked 
the accused in the open court whether he wants to 
continue with his counsels and only on getting a reply · 
in the affirmative, were the proceedings continued G 
further. It thus appears that the endeavor of the accused 
by filing this application is only to delay the proceedings 
despite the fact that all along the trial his request for 
adjournment have been duly considered and allowed 
and he has been duly represented by a private counsel H
486 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
of his choice. 
23. I am also unable to accept the plea of the accused 
that the counsel representing him earlier was 
incompetent, being a novice and that he is entitled to 
s 
recall all the prosecution witnesses now that he has 
engaged a new counsel. Although, Sh. Alok Kumr 
Dubey a_nd Sh. Ankit Bhatia, both have enrolment 
number of 2014 as per the Power of Attorney executed 
by the accused in their favour, however, to my mind the 
C 
competence of a Lawyer is subjective and the date of 
his enrolment with the Bar Council can certainly not be 
said to be a yardstick to measure his competence. 
24. Moreover, the competence of the new counsel may 
o 
again be questioned by another counsel, who the 
accused may choose to engage in future. This fact was 
also admitted by Sh. D.K. Mishra during the course of 
arguments on the application under consideration. 
E 
xxxxxx 
27. At this stage, to judge as to whether certain .questions 
should have been put to the witnesses in cross 
examination or should not have been put to them, would 
in my view result in pre-judging as to what are the 
c 
material portions of the evidence and would also amount 
to re-appraising the entire cross examination conducted 
by the earlier counsel to conclude whether he had done 
a competent job or not. This certainly is not within the 
scope and power of the court u/s. 311 Cr.P.C. I am 
G 
supported in my view by the observations of Hon'ble 
Delhi
High Court in its order dated 2010212008 in case 
titled as Raminder Singh vs. State, Criminal MC 84791 
2006, where it has been held as under: 
H 
"In the first place, it requires to be noticed that scope of
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
487 
Section 311 CrPC does not permit a court to go into A 
the aspect whether material portions of the evidence 
on record should have been put to the witness in cross-
examination to elicit their contradictions. If the court is 
required to perform such an exercise every time an 
application is filed under Section 311 then not only B 
would it be pre-judging what according to it are 'material 
portions' of the evidence but it would end up 
reappraising the entire cross-examination conducted 
by a counsel to find out if the counsel had done a 
competent job or not. This certainly is not within the C 
scope of the power of the trial court under Section 311 
CrPC. No judgment has been pointed out by the learned 
Counsel for the petitioner in support of such a 
contention. Even on a practical level it would well nigh D 
be impossible to ensure expeditious completion of trials 
if trial courts were expected to perform such an exercise 
at the conclusion of the examination of prosecution 
witnesses every time." 
28. It may also be relevant to mention that Article 22(1) E 
of the Constitution of India confers a Fundamental Right 
upon an accused, who has been arrested by the police 
to be defended by a legal practitioner of his choice. This 
Fundamental Right has been duly acknowledged by F 
the Hon'ble Superior Courts in numerous 
pronouncements including the case of State of Madhya 
Pradesh vs. Shobha Ram and others, AIR
1966 SC 
1910 wherein it has been observed as under: 
"Under Art. 22, a person who is arrested for whatever G 
reason, gets three independent rights. The first is the 
right to be told the reasons for the arrest as soon as an 
arrest's made, the second is the right to be produced 
before a Magistrate within 24 hours and the third is right H
488 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
to be defended by advocate of his choice. When the 
Constitution lays down in absolute terms a right to be 
defended by one' own.counsel, it cannot be taken away 
by ordinary law, and, it is not sufficient to say that the 
accused was so deprived, of the right, did not stand in 
B 
danger of losing his personal liberty." 
c 
D 
E 
F 
G 
H 
29. ln the case of State vs. Mohd. Afzal & Ors. 2003 IV 
AD (Cr.) 205, the Hon'ble Delhi High Court addressed 
the issue of Fundamental Right of the accused to be 
represented by a counsel from the point of his arrest 
especially in a case involving capital punishment. The 
case of US Supreme Court in Strickland vs. Washington 
466, U.S. 688 (1984) was cited before the Delhi High 
Court and the Id. Counsel for the accused in that case 
had argued that the law required a conviction to be set 
aside where counsel's assistance was not provided or 
was ineffective. Hon'ble Delhi High Court took note of 
the observations in the said case as well as the Rulings 
of the Hon'ble Supreme Court in the case of (1991) 1 
SCC 286 Kishore Chand vs. State of Himachal 
Pradesh, (1931) 1SCC627 Khatri & Ors. vs. State of 
Bihar & Ors., (1980) 1 SCC 108 Hussainara Khatoon 
& Ors. vs. Home Secretary, State ofBihar, (1983) 3 SCC 
307 Rajan Dwivedi vs. Union of India, (1978) 3 SCC 
544 Madhav Hayawadanrao Hoskot vs. State of 
Maharashtra while dealing with this issue. It was 
however observed that from hinr]sight
it is easy to pick 
wholes in the cross examination conducted but applying 
the test in Strickland's case, it cannot be said that it was 
the constructive denial of the counsels to accused 
Mohd. Afzal. The observations of the Hon'ble Delhi 
High Court were met with the approval by Hon'ble 
Supreme Court when the matter was decided by the 
Hon 'ble Apex Court by its ruling titled as State vs. Navjot
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
489 
Sandhu & Ors. AIR 2005 SC 3820. 
A 
30. The Hon'ble Apex Court, after considering the facts 
of the case, nutshell that "we do not think that the court 
should dislodge the Counsel and go on searching for 
some other counsel to the liking of the accused. The B 
right to legal aid cannot be taken thus far." While relying 
upon the ruling in the case Strickland's (supra), the 
Hon'ble Supreme Court observed that scrutiny of 
performance of a counsel who has conducted trial 
should be highly deferential. 
C 
xxxxx 
34. It may be noted that the recall of 10 and prosecutrix 
has been sought on the ground besides others, that 
she has to be questioned as to why she did not give her o 
sim of her mobile to the 10 and why the 10 did not ask 
her for the same. Similarly, it has been submitted that 
the accused though admitted his potency report but has 
not admitted the time and process of the potency test 
as stated by the 10 and thus the 10 needs to be recalled. E 
Further, SI Sandeep is required to be recalled for cross 
examination in order to cross examine him with regard 
to the document given by the Transporter, who brought 
the cab in question from Mathura to Delhi. It may also 
be mentioned that in his zest to seek recall of all the 
F 
prosecution witnesses, the applicant has also sought 
recall of one lady constable Manju, who as per record 
was not even examined as a prosecution witness .. 
35. It is further
necessary to mention that on 0410212015 G 
accused had moved an application uls 311 Cr.PC., 
thereby seeking recall of prosecutrix PW-2 and PW-23 
Ayush Dabas. The application was dismissed. The 
present application has been filed now seeking recall 
of all PWs, including PW-2 and PW-23, while the order H
490 
A 
B 
c 
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SUPREME COURT REPORTS 
[2015) 10 S.C.R. 
dated 0410212015 still remains unchallenged. 
36. The application under consideration is thus nothing 
but an attempt to protract the trial and in fact seek an 
entire retrial. There is no change in circumstances 
except change of Counsel, which, to my mind, is no 
ground to allow the application. Interestingly, in para 
17 of the application, it has been· contended that the 
present counsel is not aware of the scheme and design 
of defence of the previous counsel and is thus at a loss 
and disadvantageous position to defend the accused 
and for conducting the case as per his acumen and 
legal expertise, the recalling of PWs are necessary. It 
may be noted that the defence of an under trial is not 
expected to vary from counsel to counsel and 
irrespective of change of counsel, an under trial is 
expected to have a single and true line of defence which 
cannot change every time he chf!nges a counsel. Nor 
can a new counsel defend the case of such an under 
trial as per the new scheme and design in accordance 
with his acumen and legal expertise." 
23. The High Court made a reference to the Criminal Law 
Amendment Act, 2013 providing for trial relating to offences 
under Section 376 and other specified offences being 
F completed within two months from the date of filing of the 
charge sheet. Reference has also been made to circular issued 
by the Delhi High Court drawing the attention of the judicial 
officers to
the mandate of speedy disposal of session cases. 
The High Court also referred to the decisions of this Court in 
G Lt. Col. S.J. Chaudharvvs. State (DelhiAdministration)43, 
State of U.P. vs. Shambhu Nath Singh44, Akil@Javedvs. 
State of NCT of Delhi45 and Vinod Kumar vs. State of 
" (1984) 1 sec 722 
H "(2001) 4 sec 667 
" (2013) 7 sec 125
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
491 
Punjab46, requiring the trials to be conducted on day to day A 
basis keeping in view the mandate of Section 309 Cr. P. C. 
24. After rejecting the plea of the accused that there was 
any infirmity in the conduct of the trial after detailed reference 
to the proceedings, the High Court concluded: 
B 
"31. The aforesaid narration of proceedings before the 
learned Additional Sessions Judge clearly reflects that 
while posting the matter on day to day basis, the Court's 
only endeavour was to comply with the provisions of c 
Section 309 Cr. P. C. as far as possible while ensuring 
the right of the accused to a fair trial. The earlier counsel 
had been seeking adjournment for consulting the 
petitioner which was duly granted and under these 
circumstances the submission of learned counsel for o 
the petitioner that justice hurried is justice buried, 
deserves outright rejection." 
25. It was then observed that competence of a counsel 
was a subjective matter and plea of incompetence of the 
E 
counsel could not be easily accepted. It was observed : 
"32. The other submission of learned counsel for the 
petitioner that Sh. Alok Dubey, Advocate was not 
competent to appear as an Advocate inasmuch as he F 
had not even undergone screening test as required by 
Bar Council of Delhi Rules and was not issued practice 
certificate, this submission is not fortified by any record. 
Much was said against the competency of the
earlier 
counsel representing the petitioner. However, learned G 
standing counsel for the State was right in submitting 
that competency of an Advocate is a subjective issue 
which should not have been attacked behind the back 
46 (2015) 1 SCALE 542 
H
492 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
of the concerned Advocate. 
33. Learned Additional Standing counsel for the State 
has furnished details of the number of questions put by 
B 
the earlier counsel to the prosecution witnesses for 
showing the performance of the earlier counsel. 
Moreover, one cannot lose sight of the fact that the 
Advocate was appointed by the petitioner of his own 
choice." 
c 
26. lnspite of the High Court not having found any fault in 
the conduct of the proceedings, it held that "although recalling 
of all the prosecution witnesses is not necessary" recall of 
certain witnesses was necessary for the reasons given in para 
o 15 (a) to (xx) on the application of the accused. It was observed 
that the accus~d was in custody and if he adopted delaying 
tactics it is only he who would suffer. 
27. It is difficultto approve the view taken by the High Court. 
E 
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. 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 as 
F directed in the impugned order. No fault has been found with 
the reasoning of the order of the trial court. The High Court 
rejected on merits the only two reasons pressed before it that 
the trial was hurried and the counsel was not competent. In 
the face of rejecting these
grounds, without considering the 
G 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 
H only matter of delay but also of harassment for the witnesses
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
493 
to be recalled which could not be justified on the ground that A 
the accused was in custody and that he would only suffer by 
prolonging of the proceedings. 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 B 
not enough unless there are tangible reasons to show how the 
fair trial suffered without recall. Recall is not a matter of course 
and the discretion given to the 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 C 
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 0 
considerations including uncalled for hardship to the witnesses 
and uncalled for delay in the trial. Having regard to these 
considerations, we do not find any ground to justify the recall 
of witnesses already examined. 
28. It will also be pertinent to mention that power of judicial E 
superintendence under Article 227 of the Constitution and under 
Section 482 Cr.P.C. has to be exercised sparingly when there 
is patent error or gross injustice in the view taken by a
subordinate court'7*. A finding to this effect has to be supported 
F 
by reasons. In the present case, the High Court has allowed 
the prayer of the accused, even while finding no error in the 
view taken by the trial court, merely by saying that exercise of 
power was required for granting fair and proper opportunity to 
the accused. No reasons have been recorded in support of G 
this observation. On the contrary, the view taken by the trial 
court rejecting the stand of the accused has been affirmed. 
Thus, the conclusion appears to be inconsistent with the 
reasons in the impugned order . 
.,. Jasbir Singh vs. State of Punjab (2006) 8 sec 294. prs. 10 to 14 
H
494 
A 
B 
c 
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SUPREME COURT REPORTS 
(2015] 10 S.C.R. 
29. We may now sum up our reasons for disapproving 
the view of the High Court in the present case: 
(i) 
The trial court and the High Court held that the accused 
had appointed counsel of his choice. He was facing 
trial in other cases also. The earlier counsel were given 
due opportunity and had duly conducted cross-
examination. They were under no handicap; 
(ii) No finding could be recorded that the counsel 
appointed by the accused were incompetent 
particularly at back of such counsel; 
(iii) Expeditious trial in a heinous offence as is alleged in 
the present case is in the interests of justice; 
(iv) The trial Court as well as the High Court rejected the 
reasons for recall of the witnesses; 
(v) 
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; 
(vi) Mere fact that the accused was in custody and that he 
will suffer by the delay could be no consideration for 
allowing recall of witnesses, particularly at the fag end 
of the trial; 
(vii) Mere change of counsel cannot be ground to recall 
the witnesses; 
(viii) There is no basis for holding that any prejudice will be 
caused to tl}e accused unless the witnesses are 
recalled; 
(ix) The High Court has not rejected the reasons given by 
the trial court nor given any justification for permitting
AG v. SHIV KUMAR YADAV &ANR. 
[ADARSH KUMAR GOEL, J.] 
495 
recall of the witnesses except for making general A 
observations that recall was necessary for ensuring 
fair trial. This observation is contrary to the reasoning 
of the High Court in dealing with the grounds for recall, 
i.e., denial of fair opportunity on account of 
incompetence of earlier counsel or on account of B 
expeditious proceedings; 
(x) 
There is neither any patent error in the approach 
adopted by the trial court rejecting the prayer for recall 
nor any clear injustice if such prayer is not granted. 
C 
30. Accordingly, we allow these appeals, set aside the 
impugned order passed by the High Court and dismiss the 
application for recall. 
Nidhi Jain 
Appeals allowed.