“Misused 311 jurisdiction, humiliated the victim”, Supreme Court comes down on Uber Rape accused
The Supreme Court today grilled the lawyer appearing for the former Uber cab driver accused of raping a passenger, while strongly condemning the delay tactics adopted by the accused in the trial.
A Division Bench comprising Justice JS Khehar and Justice Adarsh Kumar Goel heard the parties today and reserved its judgment in the appeal challenging the decision of the Delhi High Court, whereby it had allowed the defence to recall 13 witnesses for cross examination.
Attorney General Mukul Rohatgi appeared for the Delhi government, while Senior Advocate Colin Gonsalves appeared for the victim. Advocate DK Mishra appeared for the accused Shiv Kumar Yadav.
The case
A passenger was allegedly raped on December 5, 2014 by the driver of the Uber taxi she had hired. The accused, Shiv Kumar Yadav, was initially allowed a legal aid counsel. However, he replaced the legal aid lawyer with an advocate of his choice before the trial began. Subsequently, after the examination of witnesses, Yadav again changed his advocate and sought re-examination of witnesses by his new advocate on the ground that the earlier lawyers were inexperienced and had not conducted the cross-examination efficiently.
The request was turned down by the trial court, but allowed by the Delhi High Court. The order of the Delhi High Court was, however, curt and did not explain the reasons for allowing the plea for re-examination. The prosecutrix and the State came in appeal to the Supreme Court against this decision of the Delhi High Court.
The accused, Shiv Kumar Yadav, is a repeat offender who is facing trial in other criminal cases including rape cases.
The provision
The power to recall and re-examine witnesses is provided in Section 311 of the Code of Criminal Procedure. It states the following:
“Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a 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.
“Strongly opposed to another cross-examination of victim”, AG Mukul Rohatgi
Attorney General Mukul Rohatgi began his arguments contending that the State was strongly opposed to recalling the witnesses and the victim should not be subject to cross-examination again at any cost.
“I oppose any further cross examination, especially that of the victim. She has already gone through 4 rounds of cross-examination. The High Court has inexplicably allowed 13 witnesses to be recalled.”
He further submitted that the accused was a repeat offender and was well versed with the “court process.”
“He is not a novice to the court. He is familiar with the court process. That is why he chose to give up legal aid counsel and chose another lawyer. He has been charged with the same offence even before. He knows which counsel to engage in the matter.”
After Attorney General completed his arguments, Senior Advocate Colin Gonsalves also made his submissions.
Court comes down on the accused
Subsequently, Advocate DK Mishra started arguing for the accused. Justice Khehar was, however, in no mood to give the accused an easy time.
“He (accused) has been very well advised. As a Supreme Court judge, even I cannot think of the legal objections he has raised”, said Justice Khehar.
The Court then made it clear that it will allow recalling of witnesses only if the accused can point out that questions relevant to the crime were not raised by the first lawyer engaged by the accused during the examination of witnesses.
When Mishra submitted questions to the effect that the victim was drunk and that she had not been questioned properly on the identification of the place of crime, Justice Khehar retorted,
“This is all nonsense. I don’t think you have any relevant question. You have humiliated and embarrassed the victim for three days. Do you think it is easy for the victim to come to the court with such allegations and face the trial?”
New Story: Victim wanted to make money by filing case in America
Mishra then submitted that the victim’s case was concocted to blackmail Uber.
“Our defence is that she wanted to file a suit in USA. She planted this case for that.”
The Court responded with strong criticism to Mishra’s arguments.
“Now you are making a new story that she wanted to make money from Uber. This is total misuse of 311 jurisdiction. We are repeating that you have to show us a question related to the crime. Three days of cross-examination after recall and you are not able to show us a single question that you have asked her which is relevant to the crime….
You are making it impossible to punish the guilty. Justice is the problem in this country. In the name of justice, same case is heard 10 times.”
Subsequently, Mishra was asked whether the High Court has given any reasons for allowing the recall of witnesses. Mishra initially said that it had but subsequently changed his stance saying that the High Court had not “specifically given any reasons but non-specifically stated it.”
An agitated Justice Khehar retorted that,
“Don’t fool us. Don’t juggle with words. We are used to it. What do you mean by non-specifically?”
The Court heard the case till 4.30 pm before reserving its verdict. The Court also permitted Mishra to file additional written submissions in the case.
Scenes from the visitors’ gallery inside the court room
Three officers from the Delhi Police were present for the hearing through the day, eagerly tracking the proceedings. A fourth officer joined in the afternoon. One officer was overheard talking to another person in the court about how well versed the accused was in court procedure and how he was successfully delaying the trial.
Image taken from here.
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