Baiju v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 OP(CRL.) NO. 404 OF 2023 ``` ## **`AGAINST THE ORDER/JUDGMENTSC 825/2020 OF FAST TRACK SPECIAL COURT,`** ## **`CHALAKUDY`** ## **`PETITIONER/S:`** ``` BAIJU AGED 45 YEARS S/O UNNICHEKKEN, NANDHIPULAM VEEDU, CHEBUCHIRA ,IPPUTTIPADY DESOM, MATTATHUR VILLAGE,THRISSUR DISTRICT, PIN - 680684 BY ADVS. SUMODH MADHAVAN NAIR S.KRISHNALAL ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA VELLIKULANGARA POLICE STATION, THRISSUR THROUGH THE PUBLIC PROSECUTOR ,HIGH COURT OF KERALA, -ERNAKULAM- 682031, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` PP SRI G SUDHEER ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP Crl.No. 404 of 2023 2 ## **K.BABU, J** . -------------------------------------- O.P.Crl.No 404 of 2023 --------------------------------------Dated this the 01[st] day of June, 2023 ## **J U D G M E N T** The prayers in the Original Petition are as ## follows:- “1) Call for records leading to passing of impugned Exhibit P5 order and set aside the same and further Direct the Special Judge Fast Track Special Court, Chalakudy to recall PW6 for facilitating further examination in accordance with law. 2) To grant such and further reliefs which this honourable court deems fit in the interest of justice.” 2. The petitioner is the sole accused in Crime No. 812/2020 of Vellikulangara Police Station, Thrissur. The offences alleged against the petitioner are punishable under Sections 376-AB and 354-B of IPC, Section 4(2) r/w Section 3 (b), Section 6(1) r/w Sections 5 (l) & 5 (m) of the POCSO Act. The victim in this case was aged only 4 years at the time of the incident. Now, she is aged 7 years. 3. The Court below is proceeding with the trial. The victim was examined as PW6. OP Crl.No. 404 of 2023 3 4. The petitioner filed Crl.M.P. NO. 223/2023 to recall and re-examine the victim, the 7-year-old child. The court below dismissed the application on the ground that she was subjected to lengthy cross-examination by the defence and that there is statutory bar in calling the child repeatedly to testiy in the court. 5. The relevant portion of the impugned order reads thus:- “Heard both sides. Offence alleged against the petinoner/accused are u/s.376 AB and 354(B) IPC Sec. 4(2) r/w 3 (b) 6(1) r/w 5(1) (m) of the POCSO ACT. The victim in this case a child aged 4 years at the time of incident. The alleged incident occured in 2020. In the light of statutory bar u/s.33(5) of the POCSO Act there is no scope for recalling PW6 especially when she was subjected to lenghty cross examination by the defence. The contention that the defence is desirous of putting a few omissions and contradictions to PW6 by confronting her previous statement u/s.164 Cr.P.C. is not a justification for recalling PW6 especially when no sufficient cause is shown as to what prevented the defence from puttting such questions when she was cross examined. It appears as a dilatory tactis to protract the trial and as such I am not inclined to allow this application.” ## 6. Heard both sides. 7. It is evident from the impugned order that the child aged only 7 years was examined in cross at OP Crl.No. 404 of 2023 4 length by the defence counsel. It is the contention of the petitioner that defence wanted to put a few ommissions and contradictions to PW6. 8. Section 311 Cr.P.C. provides that any Court may, at any stage of inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the matter. 9. 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 OP Crl.No. 404 of 2023 5 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 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 OP Crl.No. 404 of 2023 6 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 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]. 10. The power to recall a witness is to be judicially excercised. Due care shall be taken in excersising such power. The petitioner failed to establish that it was essential to recall the witness for further examination in order to arrive at a just decision. It is seen that the 7-year-old victim was examined at length by the defence. There is nothing to show as to what prevented the defence from OP Crl.No. 404 of 2023 7 putting the relevant questions to the witness at the time of cross-examination. The Trial Court has reported that it is a dilatoy tactis to protract trial. Sub-section (5) of Section 33 of the POCSO Act is also relevant. In the present case, the petitioner failed to establish any ground to interfere with the impugned order. The Original Petition stands dismissed. Sd/- **K.BABU, JUDGE** SM OP Crl.No. 404 of 2023 8 ## **`APPENDIX OF OP(CRL.) 404/2023`** ``` PETITIONER EXHIBITS Exhibit P2 ``` ``` Exhibit P2A TRUE COPY OF THE PETITION FILED UNDER SECTION 311 CRPC BEFORE THE HON'BLE FAST TRACK SPECIAL COURT, CHALAKUDY NUMBERED AS CRL MP NO 223/2023 IN SC 825/2020 DATED 9/5/2023 Exhibit P5A TRUE COPY OF THE ORDER IN CRL M P 223/2023 IN S. C 825/2020 DATED 9/5/2023 PASSED BY THE SPECIAL JUDGE, FAST TRACK SPECIAL COURT, CHALAKUDY ```