XXX vs State Of Kerala

P.Somarajan, J

This Crl.M.C. under Section 482 Cr.P.C. is to quash the proceedings pending before the Sessions Court against the accused/petitioners for the

offence under Sections 366(A), 376 IPC and Sections 3(a), 4, 5(I), 6, 13(C), 14 of the POSCO Act. Earlier, the victim, PW1 after her marriage with

accused No.2 came up to recall the witnesses examined including herself based on the subsequent development viz, her marriage with accused No.2.

But the application was not allowed by the learned Sessions Judge and it was confirmed by this Court. During the course of argument, the learned

counsel for the petitioner submitted that the accused may be permitted to exhaust the remedy under Section 311 Cr.P.C. to recall the witnesses

already examined.

The earlier application was submitted by the victim PW1 and not by the accused. The salutary provision, Section 311 Cr.P.C. is intended to

advance justice and an aid for a just decision and it must be exercised judicially and not capriciously or arbitrarily. It shall not be a device to fill up any

lacuna either in the case of prosecution or in the defence, but at the same time, it must be understood with the indefeasible right of defence of

accused, which is standing on a higher pedestal rather than the prosecution or the witnesses. An application submitted by an accused under Section

311 Cr.P.C. shall not be rejected unless there is warranting reasons, such as high improbability or gross negligence, which would outweigh the

defence. Hence, the dismissal of an earlier application at the instance of victim or one of the witnesses may not by itself be a ground to reject the

exercise of jurisdiction under Section 311 Cr.P.C. at the instance of accused. Without prejudice to the right of the accused to maintain an application

under Section 311 Cr.P.C., the Crl.M.C. is hereby dismissed.