Abins v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE M.R.ANITHA ``` ``` TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943 ``` ``` CRL.MC NO. 4971 OF 2021 ``` ## **`PETITIONER/PETITIONER:`** ``` ABINS AGED 28 YEARS S/O. BASHEER, THOOMPALATH HOUSE, NEAR KURIANS HOSPITAL, MANNAMKANDAM, ADIMALY, IDUKKI, NOW RESIDING AT THADATHIL HOUSE. MULAVOOR KARA, PAYIPRA VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT. ``` ## **`BY ADV LATHEESH SEBASTIAN`** ## **`RESPONDENTS/ STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.`** - **`2 STATION HOUSE OFFICER, VELLATHOOVAL POLICE STATION, IDUKKI DISTRICT - 685563,`** ## **`PP SRI.SANGEETHRAJ N.R`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4971 OF 2021 ``` ``` -2- ``` ## **ORDER** ``` Petitioneristhesoleaccusedin S.C.No.131/2018 on the file of the Fast Track Special Court, Idukki, Painavu. ``` ``` 2.Petitioner has filed Crl.M.P No.304/2021 in the above sessions court for recalling the victim/PW1. Petitioner is facing trial for the offence punishable under Sections 3(1)(w)(i) and 3(2)(v) of the Scheduled castes and the Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Section 376(2)(n)of Indian Penal Code, 1860 and also Section 5(1) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short the Act). ``` ``` 3.According to the learned counsel for the petitioner, the case is now posted for 313 examination of the petitioner. At that stage he filed Crl.M.P.No.304/2021 for reopening the evidence of PW1 and subjecting her to further cross ``` ``` -3- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` examination. Annexure-A2 is the copy of the petition. By Annexure-A3 order, the learned Sessions Judge dismissed that petition. Aggrieved by the same, the petitioner came up before this Court. ``` ``` 4.According to the learned counsel for the petitioner, the main reason for dismissing the petition by the Special Court is due to the bar under Section 33(5) of Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act), which specifically provides that victim shall not be repeatedly called to testify in court. That according to him is illegal and Section 33(5) will not override Section 311 of the Code of Criminal Procedure, 1973 (in short Code) ``` ``` 5.The learned Public Prosecutor on the other hand would contend that effective and lengthy cross examination has been conducted by the defence counsel and all those aspects has been considered in detail by the Sessions Judge and hence no ``` ``` -4- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` interference is called for. ``` ``` 6.According to the learned counsel for the petitioner, during the cross examination court put a specific question to the witness, which reads as follows:- ``` Court question നി്ᨲൾബഹുമാനᩔ᪓�്ᨾഇടു്ᨪിമജിസ്‌ᩏ᪔�്ᩢിന്ᩔ᪓�ാടു്ᩈᩔ᪓മാഴിയിൽ "നീ പലരുᩔ᪓�യുംകൂᩔ᪓�ᩏ᪔പായിᨾ᪎്ᩂ്എᩐ᪎ംഞാൻചൂ്ᩂി�ാണിᨪ᪎്ᩐവരുᩔ᪓�കൂᩔ᪓�ᩏ᪔പായിᨾ᪎്ᩂ്എᩐ᪎ം പറയണം, പറ്ᨼിᩔ᪓0്ᨮിൽഞാൻഅ�ിᨪ᪎ംഎ്ᩐ്ഇടു്ᨪിവനിതാᩔ᪓സ0ിᩔ᪓ലരᩂ᪎വനിതാ ᩏ᪔പാലീസു�ാർപറ്ᨼതായിᩔ᪓മാഴിമജിസ്‌ᩏ᪔�്ᩢിന്ᩔ᪓മാഴിᩔ᪓�ാടുᩏ᪔്ᩈാ? (a) ഉ്ᩪ" ``` 7.Now the defence wanted to cross examine ``` ``` the witness in the above aspect and some other questions, which have been omitted during the time of cross examination of the witness. ``` ``` 8.The learned counsel also would contend that petitioner would be met with severe punishment if he is ultimately found guilty and hence an opportunity to be given to the accused to recall PW1 to conduct further cross examination. ``` ``` 9.As per the direction of this Court, the petitioner's counsel produced copy of the deposition of PW1. I have gone though the ``` ``` -5- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` deposition of PW1. On going though the same, comparatively cross examination seen to have been conducted touching all the aspects in chief. It is true that the court has questioned the witness during the time of cross examination, which the court is entitled as per Section 165 of the Indian Evidence Act, 1872. So as of right the petitioner is not entitled for a cross examination on that question, but with permission of the court he could have cross examined the witness on that aspect also. But nothing is there in the deposition to show that he has sought for any permission to cross examine the witness on the basis of court question and it was rejected by the court. (See Sunil Kumar v.State of Kerala [2021 KHC 155]; State of Kerala Vs. Madhu @ Kutti madhu [2021 (1)KHC 251: ILR 2021 (1)KER 247]). Moreover, there is a bar under Section 33(5) of the Act for repeatedly calling for the witness for cross examination. Section 31 of the Act starts with a non obstante clause and ``` ``` -6- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` provides that the provisions of Code of Criminal Procedure, 1973, shall apply to the proceedings before a special court and the special court shall be deemed to be a court of sessions for the purpose of the said procedures. Section 33(5) provides that special court shall ensure that the child is not called repeatedly to testify in the court. Since Section 31 of the Act starts with a non obstante clause, no doubt, application of the provisions of the Code, would be subject to Section 33(5) of the Act, which guard the special court from repeatedly calling the child to testify in the court. ``` ``` 10.In RajaRam Prasad Yadav V.State of Bihar and Another [2014 (4) SCC (CRL) 256] a two judge Bench of the Apex court dealt with the nature and scope of Section 311 Cr.P.C. Paragraph 17 of the said decision provides the principles to be borne in mind by the courts which dealing with application under Section 311 Cr.P.C which is relevant in this context to be extracted which ``` ``` -7- ``` ## **`CRL.MC NO. 4971 OF 2021`** ## `reads thus:-` “ `17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:` ``` 17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? ``` ``` 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. ``` ``` 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. ``` ``` 17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. ``` ``` 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. ``` ``` 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. ``` ``` 17.7The court must satisfy itself that it was in every respect essential to examine such a ``` ``` -8- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` witness or to recall him for further examination in order to arrive at a just decision of the case. ``` ``` 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. ``` ``` 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. ``` ``` 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. ``` ``` 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. ``` ``` 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. ``` ``` 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. ``` ``` -9- ``` ``` CRL.MC NO. 4971 OF 2021 ``` ``` 17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” ``` ## `11.` _**`Rajendra Prasad V.Narcotic Cell [1999(6)`**_ ``` SCC 110] also deals with Section 311 Cr.P.C and when the witnesses can be called or resummoned. Paragraphs 8 and 10 are relevant in this extract which reads thus:- ``` “ `8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”` ``` “10.Dealing with the corresponding section in the old Code (Section 540) Hidayatullah, J. (as the learned Chief Justice then was) speaking ``` ``` -10- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` for a three-Judge Bench of this Court had said in Jamatraj Kewalji Govani v. State of Maharashtra as follows: ``` ``` "It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case." ``` ## `12. It has come out from the impugned order` ``` that cross examination of the victim was completed before 6 months. It is also revealed from the order that parties have subsequently settled the matter. So the purpose of recalling the witness is explicit to get a retracted version of the victim. That is not the very purpose of Section 311 Cr.P.C also. Recalling of PW1 is also not found to be necessary for the just decision of the case. Hence I find no illegality or impropriety in the impugned order warranting any interference. ``` ``` -11- ``` ## **`CRL.MC NO. 4971 OF 2021`** ``` In the result, this Crl.M.C is found to be devoid of any merit and hence dismissed. ``` Sd/- ## **`M.R.ANITHA`** ``` JUDGE ``` hmh ``` -12- ``` ``` CRL.MC NO. 4971 OF 2021 ``` ## **`APPENDIX OF CRL.MC 4971/2021`** |**`PETITIONER ANNEXURE`**|| |---|---| |**`Annexure A1`**|**`TRUE COPY OF THE FINAL REPORT IN CRIME`**| ||**`NO. 396/2016 OF VELLATHOOVAL POLICE`**| ||**`STATION.`**| |**`Annexure A2`**|**`TRUE COPY OF THE CRL.M.P NO. 304/2021`**| ||**`IN S.C. NO.131/2018 OF FAST TRACK`**| ||**`SPECIAL COURT, IDUKKI.`**| |**`Annexure A3`**|**`TRUE COPY OF THE ORDER OF THE FAST`**| ||**`TRACK, SPECIAL COURT, IDUKKI DATED`**| ||**`13.10.2021 IN CRL.M.P NO. 304/2021 IN`**| ||**`S.C. NO. 131/2018.`**| ## **`RESPONDENT ANNEXURE NIL`**