Balan vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure and the challenge in this Criminal Miscellaneous Case is order in C.M.P.No.726/2023 in S.C.No.1121/2022 on the files of the Special Judge under the POCSO Act offences, Nadapuram.

Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have perused the relevant records.

In this matter, the prosecution alleges commission of offences punishable under Sections 376 AB and 354 of the IPC as well as Sections 6,5(l),5(m),5(n),10,9(l),9(m) and 9(n) of the Protection of Children from Sexual Offences Act (for short, ‘the POCSO Act’ hereinafter).

After framing charge, PW1 examined on 6.3.2023. During her examination, it was deposed that the complaint led to registration of this crime was made, since accused used to beat the victim due to failure to study well. Thereafter, the Special Court sent the child to care and protection of the Child Welfare Committee and thereafter, she gave evidence on 17.8.2023 against the accused due to external intervention. She was cross examined on 17.8.2023. After completion of examination of PW1, petition under Section 311 of the Cr.P.C. has been filed by the accused stating that, at the time when PW1 was cross examined, certain relevant questions omitted to be asked to PW1. Therefore, the witness sought to be recalled for the purpose of putting the above questions. It was also contended that there are contradictions in the statements of PW1 given to the police on three occasions.

The prosecution zealously opposed recalling of PW1 mainly contending that, now, PW1 sought to be recalled and re-examined after persuading her to deviate her from the version she had given during her examination on 17.8.2023. The learned Public Prosecutor zealously opposed re-visit of the order impugned on the submission that now, the accused is attempting to get things in support of his case from the mouth of PW1 and the reasons stated in the petition are not sufficient to recall PW1 in a case where there is prohibition under Section 33(5) of the POCSO Act in the matter of recalling a child witness repeatedly.

In the decision in xxxxx v. State of Kerala reported in [2024 (3) KHC 15 : 2024 KHC OnLine 295 : 2024 KER 25575 : 2024 KLT OnLine 1399], this Court extensively considered the impact of essentials to exercise power under Section 311 of Cr.P.C. and the 1st and 2nd parts of the Section in detail. In paragraphs 8 to 11, this Court observed as under:

Section 311 manifestly in 2 parts. Whereas the word `used’ in the first part is `may’ the word used in the second part is `shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Courts and enables the Courts `at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely,

(1) to summon any person as a witness, or

(2) to examine any person in attendance, though not summoned as a witnesses, or

(3) to recall and re-examine any person already examined.

The second part which is mandatory imposes an obligation on the Court--

(1) to summon and examine, or

(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

The power conferred under S.311 Cr.P.C should be invoked by the Court only in the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. The Court has wide power under S.311 Cr.P.C to recall witnesses for re-examination or further examination, if it is necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case.

Scope and object of Section 311 of Cr.P.C is well discussed in the decision reported in [AIR 1991 SC 1346 : 1991 Supp (1) SCC 271 : 1991 CrLJ 1521], Mohanlal Shamji Soni v. Union of India, wherein it is held that in order to enable the Court to find out the truth and render a just decision the salutary provisions of S.311 are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. Opportunity of rebuttal shall be given to other party. The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is held in the decision reported in [(2002) 4 SCC 578 : AIR 2002 SC 1856 : (2002) 2 Crimes 200 : 2002 CrLJ 2547(2562) (SC)], Ramchandra Rao v. State of Karnataka, that the criminal Courts should exercise their available powers such as those available under Ss.309, 311 and 258 Cr.P.C to effectuate the right to speedy trial. The power under S.311 can be exercised both at the behest of accused (defence) as well as prosecution.

In fact, the power to summon an accused under Section 311 Cr.P.C can be invoked by 3 modes:

(i) At the option of the prosecution,

(ii) at the option of the accused, and

(iii) the Court suo motu.

Second part of Section 311 imposes a mandatory obligation on the part of the Court to summon and examine or to recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

On perusal of the facts involved, initially, when PW1 was examined on 6.3.2023, she did not support the prosecution. Then she was referred to Child Welfare Committee and examined on 17.8.2023, she gave evidence in support of the prosecution and she was cross examined. Now, the grievance of the petitioner is that, during cross examination on 17.8.2023, important questions omitted to be asked to PW1. Further, there are contradictions in the statements of the victim given on three occasions.

Going by the prayer in the petition, it is discernible that the attempt of the accused/petitioner is to fill up the lacuna in evidence, where the learned Special Judge applied his mind and found that recalling and re-examination of PW1, were not necessary for the just decision of the case. If so, the order impugned does not require any interference, since the same is perfectly justified.

In such view of the discussion, the petition fails and is accordingly dismissed.