Akbar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 9[TH] DAY OF JULY 2024 / 18TH ASHADHA, 1946 CRL.MC NO. 11240 OF 2023 ``` ``` CRIME NO.947/2021 OF CHAVAKKAD POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT DATED 11.12.2023 IN SC NO.963 OF 2021 OF FAST TRACK SPECIAL COURT, CHAVAKKAD PETITIONER/ACCUSED NO.1: ``` ``` AKBAR AGED 22 YEARS S/O ASHARAF, KARUPPAM VEETIL HOUSE, PARANPATI, BLANGAD P.O KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR, PIN - 680506 BY ADVS. LOWEL CHERIAN A.S.JEOTHI BASU ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 SRI.SANAL P RAJ, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 11240 OF 2023 ``` ``` 2 ``` ## **O R D E R** Dated this the 9[th] day of July, 2024 This Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’ for short), is at the instance of the accused in S.C.No.963/2021 on the files of the Fast Track Special Court for trial of cases under the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘the POCSO Act’), Chavakkad, challenging Annexure A order, whereby the learned Special Judge dismissed petition filed by the petitioner herein to recall PW1, who is the victim. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant documents. 3. In this matter, the prosecution alleges commission of offences punishable under Sections 354A(1)(i) r/w 354A(2), 363, 376(1) and 447 of IPC and under Sections 3(a) r/w 4(1), 7 r/w 8, 9(l) r/w 10 and 11(iv) r/w 12 of the POCSO ``` CRL.MC NO. 11240 OF 2023 ``` ``` 3 ``` Act by the accused. 4. In this matter, petition to recall PW1 was filed by the accused by resorting to Section 311 of Cr.P.C. holding that the examination of PW1 is necessary. The learned Special Judge summarized the prosecution case and the events upto filing of this petition in paragraph No.5 and thereafter, as per the observation in paragraph No.6, dismissed the petition, holding that PW1 need not be recalled and re-examined and accordingly, the petition was dismissed. 5. The learned counsel for the petitioner reiterated the contention raised before the Special Court and pressed for interference in Annexure A order. 6. Whereas the learned Public Prosecutor zealously opposed re-visit of the order impugned. 7. 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 ``` CRL.MC NO. 11240 OF 2023 ``` ``` 4 ``` extensively considered the impact of essentials to exercise power under Section 311 of Cr.P.C. and the 1[st] and 2[nd] parts of the Section in detail. In paragraphs 8 to 11, this Court observed 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._ ``` CRL.MC NO. 11240 OF 2023 ``` ``` 5 ``` _9. 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._ _10. 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_ ``` CRL.MC NO. 11240 OF 2023 ``` ``` 6 ``` _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._ _11. 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._ ``` CRL.MC NO. 11240 OF 2023 ``` ``` 7 ``` _Second part of Section 311 imposes a mandatory obligation on the part of the Court to summon and examine or to recall or reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”_ 8. The sole reason urged by the petitioner to recall PW1 is that the earlier counsel failed to adduce necessary evidence during cross-examination and it was noticed by the new counsel who filed fresh vakalat for the accused before hearing and pronouncement of judgment. 9. Here, PW1 was examined at length and according to the learned Special Judge, the same runs into pages. Thereafter, defence evidence was completed and the case is about to be disposed of, after hearing both sides. At this juncture, the present petition has been filed, seeking recall of PW1 without any bonafides. Therefore, merely for failure of the earlier counsel to put some questions to PW1, recall of PW1 cannot be allowed since the attempt is to stall the ``` CRL.MC NO. 11240 OF 2023 ``` ``` 8 ``` pronouncement of the judgment in a case where repeated recall of child witness is deprecated under Section 33 (5) of the POCSO Act. Accordingly, this petition stands dismissed, confirming Annexure A order in Crl.M.P.No.282/2023 in S.C.No. 963/2021 on the files of the Fast Track Special Court for trial of cases under the POCSO Act, Chavakkad. Interim order of stay stands vacated. Registry is directed to forward a copy of this order to the trial court for information and further steps. **Sd/A. BADHARUDEEN JUDGE** nkr ``` CRL.MC NO. 11240 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 11240/2023`** ``` PETITIONER ANNEXURES Annexure ATHE TRUE COPY OF THE ORDER IN CRL.M.P 282/2023 IN SC 963 / 2021 OF THE SPECIAL JUDGE, FAST TRACK SPECIAL COURT, CHAVAKKAD DATED 11.12.2023 ``` ``` RESPONDENTS ANNEXURES : NIL ```