Should fast-track Uber rape case to lessen ‘undue hardship’ for victim, says SChttps://indianexpress.com/article/cities/delhi/sc-says-should-fast-track-uber-rape-case-to-lessen-undue-hardship-for-victim/

Should fast-track Uber rape case to lessen ‘undue hardship’ for victim, says SC

"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, " the SC said.

The sensational Uber cab rape case needs to be fast-tracked, the Supreme Court has said, disapproving the Delhi High Court’s view that the accused and not the victim will suffer by the delay in allowing the recall of prosecution witnesses.

“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,” a bench of Justices J S Khehar and Adarsh Kumar Goel said while giving 10 grounds to reject the reasons given by the High Court to allow the accused to recall an re-examine 13 prosecution witnesses, including the victim, in the case.

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The incident had taken place on the night of December 5 last year when the victim, who was working for a finance firm in Gurgaon, was headed back home. While delivering its judgement, the bench said, “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.”

“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 are required to repeatedly appear in court to face cross-examination,” the bench said.

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Maintaining that expeditious trial in a heinous offence as is alleged in the present case was in the interest of justice, the bench said “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.”

The apex court said the High Court in its March 10 order, 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 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 expeditious proceedings,” it said.

“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 directed in the impugned order,” the apex court said.

It had allowed the appeals of the victim and Delhi Police against the High Court order.

The High Court had allowed recall of 13 prosecution witnesses, including the victim in the case, on the plea of
accused cab driver Shiv Kumar Yadav and said their cross-examination will be carried out on a day-to-day basis.
“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,” the Supreme Court bench further said.

It rejected the contention that the change of counsel came in the defence of the accused saying, “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,” the bench said.

It added that no finding could be recorded that the counsel appointed by the accused were incompetent and mere
change of counsel cannot be ground to recall the witnesses.

The apex court also concluded that there is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled and “While advancement of justice remains prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience.”

“It has normally to be presumed that 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 serious consequences on conduct of trials and criminal justice system,” it said.

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The bench also said, “it is difficult to approve the view taken by the High Court.”