Chandran@Velayudhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943** **CRL.MC NO. 5009 OF 2021** **(AGAINST THE ORDER DATED 13.10.2021 IN CRL.M.P. No.275/2021 in** **S.C. NO.107/2017 OF THE (FAST TRACK) SPECIAL COURT, THRISSUR) PETITIONER/ACCUSED:** **CHANDRAN@VELAYUDHAN AGED 68 YEARS** **S/O.AYYAPPAN, PARAKULANGARA HOUSE, PATTIPARAMBU, THIRUVILWAMALA VILLAGE, THRISSUR.** **BY ADVS. C.A.CHACKO C.M.CHARISMA ALEKH THOMAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **PP SANGEETHARAJ.N.R** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Cr.M.C.No.5009 of 2021 2 ## **ORDER** Dated this the 15[th] day of November, 2021 This Crl.M.C. has been filed against the impugned order in Crl.M.P. No.275/2021 in S.C. No.107/2017 dated 13.10.2021 of the (Fast Track) Special Court, Thrissur, which has been filed to recall PW1 the minor victim. Petitioner is the accused in S.C. No.107/2017, which has been registered for the offence punishable under Sections 376(2)(i) and (n) of the Indian Penal Code and Section 6 r/w Section 5 of the Protection of Children from Sexual Offences Act, 2012. 2. Annexure-A1 is the true copy of Crl.M.P. No.275/2021 field by the petitioner. Annexure-A2 is the true copy of objection filed by the respondent in Crl.M.P. No.275/2021. 3. Heard both sides. 4. According to the learned counsel for the petitioner, there is dispute with regard to the age of the victim and her mental condition. Documents in connection with the same has to be produced. It is also Cr.M.C.No.5009 of 2021 3 contended that during examination of the PW1, she stated contradictory version with regard to the place of occurrence and presence of accused. With respect to the same the investigating officer also has given contradictory version and that creates doubt with regard to the identity of the accused. Hence, more documents have to be produced from the side of the accused and the victim has to be examined again. According to the learned counsel for the petitioner, it is necessary to prove that the innocence of the accused. 5. Public Prosecutor on behalf of the State filed objection contending that all the records have already come before the court and the petition is not maintainable. 6. Section 31 of the Act starts with a non obstante clause and 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 Cr.M.C.No.5009 of 2021 4 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. 7. 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 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 Cr.M.C.No.5009 of 2021 5 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. 17.7 The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further Cr.M.C.No.5009 of 2021 6 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. Cr.M.C.No.5009 of 2021 7 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. 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.” ## 8. _**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 context 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 Cr.M.C.No.5009 of 2021 8 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 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 Cr.M.C.No.5009 of 2021 9 evidence is needed by it for a just decision of the case." 9. The impugned order passed by the court below would show that the PW1 has been subjected to detailed cross examination with regard to all the relevant aspects. The documentary evidence to prove the age of the victim also alleged to have been produced. It is further found that Section 33(5) of the POCSO Act ensure that child should not be called repeatedly to testify in the court. 10. Moreover the burden to produce necessary documents to prove the age of the victim is upon the prosecution, accused need not be bothered about it. 11. The next reason stated is with regard to the discrepancy in the evidence of PW1 with regard to the place of occurrence and presence of accused and further that the investigating officer gave contradictory version with regard to that. First of all petitioners has not produced copy of the deposition of the victim or that of the investigating officer to substantiate the contention. Moreover, if at all the evidence of the victim is Cr.M.C.No.5009 of 2021 10 inconsistent or that the evidence of Investigating Officer is in contradiction with that of the victim, it will only enure to the benefit of the accused. Those are all not at all a reason for recalling the minor victim in a case. So the impugned order passed by the learned Special Court is legal and proper. I don't find any reason to interfere with the same. In the result, Crl.M.C. is dismissed. **Sd/M.R.ANITHA JUDGE** SMF Cr.M.C.No.5009 of 2021 11 ## **APPENDIX OF CRL.MC 5009/2021** ## **PETITIONER ANNEXURE** **Annexure A1 TRUE COPY OF CRL.M.P.NO.275/2021 FILED BY THE PETITIONER IN SC.NO.107/2017. Annexure A2 TRUE COPY OF OBJECTION FILED BY RESPONDENT IN CRL.M.P.NO.275/2021. Annexure A3 CERTIFIED COPY OF ORDER DATED 13.10.2021 IN CRL.M.P.NO.275/2021 IN SC.NO.107/2017 OF THE (FAST TRACT) SPECIAL COURT, THRISSUR.** //TRUE COPY// PA TO JUDGE