AG (State) v. Shiv Kumar Yadav & Anr.
Background
The accused, a cab driver, was alleged to have raped a female passenger in Delhi in December 2014. After the prosecution's 28 witnesses were cross-examined by his privately-engaged counsel and his own statement was recorded under Section 313 Cr.P.C., the accused engaged a new counsel who sought to recall all the witnesses, claiming the earlier lawyer had not cross-examined them competently. The trial court rejected this as a delaying tactic, but the Delhi High Court allowed recall of several witnesses "to ensure a fair trial," prompting the State and the victim to appeal to the Supreme Court.
Decision Breakdown
The Supreme Court held that the wide power to recall witnesses under Section 311 Cr.P.C. must be exercised judicially, with specific and cogent reasons, and not merely because an accused changes counsel and alleges the earlier lawyer was incompetent: competence of counsel is a subjective matter that should not be second-guessed with hindsight, especially where the counsel was chosen by the accused himself. The Court found the High Court had given no concrete reason for overturning the trial court's well-reasoned refusal, had ignored the hardship and harassment recall would cause to the rape victim, and had wrongly treated the accused's custody as a reason favouring recall. Weighing the accused's right to a fair trial against the victim's and society's interest in an expeditious trial for a heinous offence, the Supreme Court allowed the appeals, set aside the High Court's order, and dismissed the recall application.
Lesson Learnt
The right to a fair trial does not include an unlimited right to reopen a case and recall witnesses simply by switching lawyers and blaming the previous one: courts must balance an accused's rights against the real hardship repeated recall causes to victims and witnesses, particularly in sensitive cases like rape.