Rape trial jammer in for review - SC to decide on right of accused to re-call witness

R. Balaji, TT, New Delhi, April 8: The Supreme Court will settle once and for all the question whether an accused can re-call a witness for re-examination - a tactic used by some defence teams to delay trials, especially in rape cases where survivors are compelled to retrace their trauma afresh.

"It is a pure question of law as to whether the witnesses could be re-called. This is a serious issue. We are going to lay down the law. It is a matter which will have far-reaching implication, although it is a pure question of law," a bench of Justices J.S. Khehar and S.A. Bobde said during a brief hearing in the Uber rape case.

The Supreme Court bench was hearing a petition filed by a passenger who was raped by the driver of a cab hailed through the Uber network on December 5 last year.

The accused, cabbie Shiv Kumar Yadav, had won an appeal in Delhi High Court which upheld his plea to cross-examine again several witnesses, including the survivor. The trial court had turned down his plea. Following the high court order, the survivor had moved the Supreme Court through senior counsel Colin Gonzalves.

Normally, the accused in criminal cases seek the re-call of witnesses even after they are cross-examined. But Section 311 of the CrPC empowers the court to summon or re-call any witness for examination or cross-examination.

In this case, Yadav had insisted that he had the right to re-call the witnesses, including the survivor, as the counsel who represented him initially was a novice.

Several witnesses, including the passenger, had already been cross-examined and Yadav was deliberately making the plea to delay the trial, the prosecution had alleged.

The Supreme Court bench has now decided to resolve the matter for a wider spectrum. "Lay down the law" means the apex court will clear the air on a particular aspect, and all courts in the country are expected to apply the same yardstick while delivering judgments.

The apex court asked attorney-general Mukul Rohatgi to assist the court. He was requested to ensure that copies of trial court records are translated into English and made available to the top court at government cost.

Yadav's family had claimed that he was too poor to immediately organise the translation of the documents and other material running into 400 pages.

The bench posted the matter for further hearing on April 22. Yadav's counsel has been asked to hand over to the attorney-general within three days copies of the trial court records in Hindi for translation into English. Rohatgi will produce the translated copies in the court within a week.

The apex court rejected the plea of Yadav's counsel for a six-week adjournment of the case on the ground that the translated copies of the trial court records had to be placed before the bench.

The bench said such a long adjournment could not be granted as the case had to be expedited.

"You have to assist the court in the matter. You are the beneficiary of the stay of trial," Justice Khehar told Yadav's counsel.

On March 10, the apex court had stayed the fast-track court's proceedings in the rape case and Delhi High Court's March 5 order that had asked the survivor and 12 other witnesses to undergo fresh cross-examination.

The apex court had said that the deposition so far made by the survivor before the trial court subsequent to the high court order should be placed in a sealed cover before it.

"There shall be no publication of the same in case any one had a copy of it," the court had said then.