Alka Verma –
Published On: September 20, 2021 at 12:00 IST
Recently, the Delhi High Court has stated that a mere change in counsel cannot be a ground to recall witnesses.
Justice Yogesh Khanna while rejecting an application under Section 311 of the Code of Criminal Procedure observed that the victim’s difficulty can’t be ignored while making any decision because of the delay done.
Justice Khanna also gave the example of a former advocate who decided to not examine the victim.
The High Court made such statements while it was dealing with a challenged order of a Trial Court.
Earlier, Senior Advocate N. Hariharan, who was appearing on the behalf of petitioners argued in front of the Trial Court that the former Advocate denied his opportunity to examine one of the victims but the new Advocate wanted to question the victims as he thought it necessary.
However, the Trial Court rejected the application stating that “The change of counsel and the decision of the new counsel to cross-examine any witness who the previous counsel did not cross-examine is no ground to exercise power u/s 311. CrPC for recalling the witness where due opportunity was afforded earlier.”
Further, the Trial Court also added, “Lastly, this is a criminal trial and not a game where, if one party were afforded an opportunity for recalling any witness for valid reasons, the other party would ask for a chance as a matter of right without any reason. Accordingly, considering the totality of the circumstances, this Court is not inclined to exercise power u/s 311 CrPC to recall PW~38 as no justifiable grounds exists for the same. Application is accordingly dismissed.”
While the petitioners argued that it only takes one day to examine the victim and witness, Senior Advocate Dayan Krishnan, who was appearing on the behalf of the State argued that these applications are nothing but a plot to delay the matter.
The Court had observed that the matter was already delayed as it was ongoing since 2006.
The Court also observed that it requires a solid and valid ground for the discretion of power under Section 311 of CrPC and the former Counsel voluntarily chose not to examine that one witness among all others.
Further, the Court added that the Former Counsel failed to examine is not a valid ground for applying Section 311 of CrPC and hence dismissed the application.
Also Read: What is Witness Protection Scheme?
Witness Protection Scheme, 2018