Ajnas M v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 CRL.MC NO. 2748 OF 2023 ``` ``` CRIME NO.552/2021 OF THE NADAPURAM POLICE STATION, CALICUT DISTRICT AGAINST THE ORDER IN CMP NO.118/2023 OF SC NO. 403/2022 OF FAST TRACK SPECIAL JUDGE, NADAPURAM ``` ## **`PETITIONER/ACCUSED:`** ``` AJNAS.M AGED 23 YEARS S/O. ASHRAF, MANTHONI HOUSE, CHALIL, THONDARNAD P. O, KOROM, WAYANAD DISTRICT, PIN – 670 731. ``` ``` BY ADVS. V.SHYAM P.ARUN SAHEERA K. ``` ## **`RESPONDENT/STATE AND DE-FACTO COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. ``` ``` SRI. G. SUDHEER - PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C No.2748 of 2023 2 ## **K. BABU, J** **---------------------------------------** **Crl.M.C No. 2748 of 2023 -------------------------------------Dated this the 12th day of April, 2023** ## **ORDER** The petitioner challenges the order dated 09.03.2023 in CMP. No.118 of 2023 in S.C. No.403 of 2022 passed by the Fast Track Special Judge, Nadapuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The petitioner is the sole accused in the Sessions Case. The Court below is proceeding with the trial. When the case was taken up for hearing under Section 232 of Cr.P.C, the petitioner filed an application to recall PW1, the victim, on the ground that the statement recorded under Section 164 of Cr.P.C was Crl.M.C No.2748 of 2023 3 not made available to the accused so as to confront the same to the victim. The trial court rejected the petition on the following grounds: (1) Section 33(5) of the Protection of Children from Sexual Offences Act, 2012, (for short, ‘the POCSO Act’) bars calling of child repeatedly to testify in the court. (2) The petitioner had not raised the contention that he had not been served with the statement prepared under Section 164 of Cr.P.C. 4. The learned counsel for the petitioner contended that the provisions of Section 33(5) of the POCSO Act is not applicable to the present facts as the victim has attained the age of 18 years. The learned counsel further contended that there is nothing on record to show that the statement under Section 164 Cr.P.C was made available to the accused. It is further submitted that the accused had obtained the copy of the statement under Section 164 Cr.P.C by obtaining Crl.M.C No.2748 of 2023 4 the certified copy of the same, from the court concerned. 5. The learned Public Prosecutor, per contra, contended that the statement under Section 164 Cr.P.C had been forwarded to the Court concerned along with the final report and the same was served to the accused in terms of the provisions contained in Section 207 of Cr.P.C. Admittedly, the victim attained the age of 18 years and, therefore, Section 33(5) of the POCSO Act has no relevance. Moreover, the provisions of Section 33(5) is not an absolute bar for recalling a witness to be examined further for a just decision in the case. 6. The specific case of the petitioner is that the statement under Section 164 of Cr.P.C was not made available to him. It is his case that he obtained the certified copy of the statement under Section 164 of Cr.P.C after the closure of the prosecution evidence. Crl.M.C No.2748 of 2023 5 7. The aid of Section 311 Cr.P.C. should be invoked 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 is trite that due care should be taken by the Court while exercising power under the section, and 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 or 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. The Court has very wide power to examine any witness it likes for a just decision in the case. The wide discretionary power Crl.M.C No.2748 of 2023 6 upon the Court in this respect is to be exercised judicially and not arbitrarily. The Court shall suggest, by itself that it was in fact, essential to examine a witness or to recall him for further examination in order to arrive at a just decision on the case. The provision is to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts. The Section essentially is intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. (Vide: [Vide: Mohanlal Shamji Soni v. Union of India (1991 Supp(1) SCC 271:1991 SCC (Cri) 595), Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999], Mina Lalita Baruwa v. State of Orissa [(2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218], Rajaram Prasad Crl.M.C No.2748 of 2023 7 Yadav v. State of Bihar [(2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256] and Natasha Singh v. CBI [(2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828]. 8. Though the Trial Court has recorded the reasoning that the petitioner should have raised the contention that he was not served with the copy of the statement under Section 164 of Cr.P.C, there are no material before this Court to come to the conclusion that the statement under Section 164 Cr.P.C was served to the accused. It is further submitted that the counsel who defended the accused omitted to bring to the notice of the Court that Section 164 statement was not served to the accused. 9. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct an error which is the result of an innocent omission. The Court should be magnanimous in allowing such mistakes to be corrected. 8 Crl.M.C No.2748 of 2023 10. Therefore, this Court is of the view that the petitioner who is facing a grave offence be given an opportunity to confront the statement under Section 164 of Cr.P.C to PW1. In the result, Annexure-A3 order stands set aside. The trial Court is directed to recall PW1 to facilitate further examination. The Court shall complete the examination of PW1 on the date of her appearance itself. Crl.M.C is allowed as above. **Sd/-** **K. BABU JUDGE** SPR Crl.M.C No.2748 of 2023 9 ## **`APPENDIX`** ## **`PETITIONER’S ANNEXURES :-`** ``` ANNEXURE A1THE COPY OF THE FIR DATED IN CRIME NO.552/2021 OF THE NADAPURAM POLICE STATION. ANNEXURE A2A COPY OF THE CMP.118/2023 IN S.C 403/2022 BEFORE THE COURT OF FAST TRACK JUDGE, NADAPURAM DATED 09.03.2023. ANNEXURE A3A CERTIFIED COPY OF THE ORDER OF THE COURT OF FAST TRACK SPECIAL JUDGE, NADAPURAM DATED 09.03.2023 IN CMP 118/2023 IN SC 403/2022. ``` ``` RESPONDENTS EXHIBITS: NIL. ```