The Supreme Court on Tuesday restrained a fast track court in the capital from going ahead with the Uber rape case trial as it agreed to examine the survivor’s plea against recall of 13 witnesses at the instance of accused.
A bench of Justice JS Kehar and Justice SA Bobde, which issued notice to accused Shiv Kumar Yadav, will decide if an accused had the right to recall witnesses on the ground that his counsel has changed.
Acting on Yadav’s plea the Delhi High Court had on March 4 ordered re-examination of 13 witnesses, including the rape survivor – who moved the SC complaining it amounted to subjecting her to the trauma once again.
Before moving the SC, the survivor had expressed her anguish at having to appear in the court again. “Words cannot describe what I am currently going through and I can continue to suffer mentally everyday this goes on,” she had told the media on March 8.
The 32-year-old former Uber cab driver is accused of raping his 25-year-old passenger on December 5, after kidnapping and beating her. He was arrested two days later from his native place in Mainpuri, Uttar Pradesh. Yadav, who has multiple charges of sexual assault against him, has been in custody since then.
Subsequent to the HC order, she had to depose before the trial court again and was even subjected to partial cross-examination by the defence counsel.
However, her examination would now be kept in a sealed cover as the SC said any statement recorded after the HC order shall not be made public. It prohibited publication of such a deposition in case anyone had a copy of it.
"We want to understand if section 311 of the criminal procedure code (court's power to summon material witnesses) gives an accused or even the complainant the right to recall a witness. The provision specifically states it's the court that can recall a police witness," the bench told senior advocate Colin Gonsalves who is representing the survivor.
The matter would now be heard after two weeks.
Initially the bench wanted to know why the survivor moved the SC because the HC had given liberty to the witnesses in the case to refuse participating in the proceedings again."It’s a self-defeating order. You can always say no," the court said.
However, Gonsalves said it would be at the cost of the victim. "The trial court may have objections to it," he stated.
The SC even wanted Gonsalves to address the court if it can interfere with the HC order since recall has been allowed on the ground of a fair trial.
"In our criminal justice system, we protect the accused to the hilt. We shield him in all ways. Therefore, in that background if the court says the plea is allowed in the interest of justice, how can we interfere?" the bench asked.
While seeking recall of prosecution witnesses, Yadav’s lawyer DK Mishra had alleged the previous self-appointed defence counsel was a “novice” and had not conducted the trial properly due to lack of experience.
The prosecution had, however, countered it, saying the ability of a lawyer was “subjective” and that one couldn’t lose sight of the fact that the advocate had been appointed by the petitioner of his own volition.
The HC had noted that Yadav was in custody and in case he adopted delaying tactics, it was he who would suffer. Contradicting this, the survivor said it wasn’t the accused but she who was suffering the most for “having to go through a trial virtually from the beginning all over again.”
“The order is unconstitutional and in breach of the principles regarding recall and re-examination causes substantial injustice to the complainant and goes against the very principles of speedy trial and the Criminal Law Amendment Act, 2013,” she stated in her petition. The HC gave its verdict without making the survivor a party, the petition read.