Binu vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 to call for the records, which led to passing of Annexure-A7 order, dated 20.07.2024 in C.M.P. No.442/2024 in S.C.No.195/2019 of the Court of the Fat Track Special Judge, Varkala and set aside the same by allowing CMP.

Petitioner is the sole accused in S.C.No.195/2019 on the files of Special Court for trial of offences under the Protection of Children from Sexual Offences Act, ('POCSO Act' for short hereafter)Varkala.

Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. I have perused the materials placed along with this petition with particular reference to Annexure-A5, the Copy of 311 petition (CMP No.442 of 2024) and Annexure -A7 order thereof.

In this case the petitioner is alleged to have committed offences punishable under Sections 354A, 506(i),450, 376 of Indian Penal Code, 1860 and Section 3(a) r/w 4, 5(l) r/w 6 of POCSO Act and 3(1)(w)(i) and 3(2)(v) of SC/ST (POA) Act. The trial court proceeded trial and the entire evidence closed and the matter now stands for hearing both sides.

It is submitted by the learned counsel for the petitioner that when PW1 was examined Exts.D1 to D1(e) contradictions were marked. So also when PW2 was examined Ext.D2 contradiction also marked. But at the time when the persons who recorded the statement of PW1 and PW2 were examined as PW10 and PW16 , the contradictions not pointed out before them to prove the same in the manner known to law. Since it was noticed after completion of evidence Annexure -A5 petition filed seeking to recall PW10 and PW16, according to the learned counsel for the petitioner, the trial court ought to have allowed Annexure-A5 and therefore Annexure -A7 order disallowing the said prayer is liable to be interfered to facilitate proper trial to the accused.

While opposing interference in Annexure-A7 order the learned Public Prosecutor would submit that Annexure-A5 petition itself was filed at a much belated stage on 9.05.2024 even though PW1 was examined as early on 10.11.2022. That apart PW10 and PW16 were cross examined on 10.03.2023 and 4.10.2023 respectively. Therefore, the petition filed at a belated stage is not liable to be allowed. It is also pointed out by the learned Public Prosecutor that even otherwise the purpose for which PWs 10 and 16 were sought to be re-called is to supply omission which amounts to filling up of lacuna in evidence. Therefore, the same could not be allowed.

Insofar as the law regarding recalling of witnesses is concerned, the law is well settled in the decision reported in [2024 KHC 15 : 2024 KLT OnLine 1399], XXXX v. State of Kerala & anr. with reference to paragraph Nos.8 to 10 as under:

“8. 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.”

Here the short prayer that has been pressed into by filing Annexure-A5 is to recall PW10 and PW16. To prove the contradictions marked as Exts.D1 series and D2 which were omitted to be put during cross examination of PW10 and PW16. While dismissing the order paragraph No.8 of Annexure-A7, the learned Special Judge held as under:

“Upon perusing he deposition of PW16 before Court on 04.10.2023, it is found that the cross examination of PW16 by the learned counsel for the accused is about 6 pages. PW1 was examined on 10.11.2022 in this case. It is also found that PW10 was also cross examined by the learned counsel for the accused on 10.03.2023 i.e. around one year back in this case. Hence it is found that sufficient opportunities were to the learned counsel for the accused for the cross examination of PW's 10 and 16 in detail, after cross examination of PW1 by the learned counsel for the accused on 10.11.2022 in this case. The questions to be put to PW's 10 and 16 further in this case or the specific questions put to PW1 for which PW's 10 and 16 are to be recalled again are not specifically stated in this petition. Considering the fact that PW's 10 and 16 were examined earlier before around one year in detail in this case, I find that the recalling of PW's 10 and 16 for further cross examination by the accused is unnecessary and unwanted in this case, as sufficient opportunities were already seen granted to the learned counsel for the accused for cross examination of PW's 10 and 16 in detail on 10.03.2023 and on 04.10.2023 in this case. No reason is stated for the delay in filing this petition, after around one year after their examination in this case. Hence I find that there is no sufficient cause to recall PW's 10 and 16 for the purpose of further cross examination by the learned counsel for the accused in this case. Moreover if such types of petitions are allowed on the ground of omission to ask appropriate questions at the time of cross examination then that will lead to anomaly in closing evidence, if petitions are filed by advocates at any time for allowing cross examination of any witness stating that they omitted to put some questions to them in the cross-examination earlier, without asking proper questions at the time of cross examination and a fair trial without unreasonable delay will be defeated on that ground. Therefore, I find that this petition is only to be dismissed in the interest of justice in this case. Point No.1 is found against the petitioner/accused.”

Thus it is clear that as pointed out by the learned Public Prosecutor, PW1 was examined on 10.11.2022 and the evidence of PW10 and 16 were completed after lengthy cross examination effected on 10.03.2023 and 04.10.2023.

In this matter Ext.D1 series contradictions and Ext.D2 contradictions were extracted during examination of the makers of the statement and the recall now pressed into is to prove the said contradictions alone. Even though the application is one filed at a much belated stage in order to prove Ext.D1 series and Ext.D2 contradictions, I am inclined to allow this petition on payment of cost of Rs.10,000/- (Rupees ten thousand only) to be deposited in the State Exchequer including the anticipated expenses TA and DA for the witnesses to be paid by the State, within a period of seven days from today. The impugned order stands set aside on payment of the cost as ordered. Therefore, the Special Judge is directed to re call PW10 and PW16 only for the very limited purpose of putting D1 series and D2 contradictions respectively to PW10 and PW16 and not for putting any other questions, subject to payment of cost as ordered, before issuance of summons within the stipulated time. If the cost failed to be deposited within seven days, then Annexure-A7 order will be restored and this criminal M.C.stands dismissed.