Crl.M.C. No.2262 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 CRL.MC NO. 2262 OF 2023** **AGAINST THE SC 314/2022 OF FAST TRACK SPECIAL COURT,** ## **NADAPURAM** ## **PETITIONER/ACCUSED:** XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL ## **RESPONDENTS/STATE:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2262 of 2023 2 ## K.BABU, J . -------------------------------------Crl.M.C.No.2262 of 2023 --------------------------------------Dated this the 22[nd] day of March, 2023 ## O R D E R The petitioner, an under-trial prisoner, challenges the order dated 01.03.2023 passed by the Fast Track Special Court, Nadapuram in S.C No.314/2022 (Annexure A) to the extent it declined to recall PWs 1, 2, 5 and 6. 2. The petitioner is the accused in S.C No.314/2022. He faces charges under Sections 376-AB, 376(2)(f) and 354-A(1)(i) of IPC and Sections 6(1), 6(2), 5(l), 5(m), 5(n), 8 read with Section 7 and Section 12 read with Section 11(iii) of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 3. As the petitioner was in judicial custody, the Trial Court provided a legal aid counsel, who cross examined the witnesses. It is the contention of the petitioner that the witnesses were examined without getting proper instructions from him. It is submitted that he was not consulted by the legal aid counsel before examining the witnesses. 4. Heard the learned counsel for the petitioner and the Crl.M.C.No.2262 of 2023 3 ## learned Public Prosecutor. ## 5. The specific grounds raised by the petitioner in the ## Criminal M.C are extracted below: - “ B . In the above case all the witnesses were examined and the case was posted for hearing. Since the accused was in judicial custody, he was not in a position to arrange a suitable lawyer for defending his case. The court provided a legal aid counsel for the petitioner and he cross-examined the witnesses without getting proper instructions from the accused. Some of the questions asked by the counsel to the witnesses are against the petitioner and in favour of the prosecution. The legal aid counsel has not properly collected the instruction from the accused before cross examination, hence, he could not effectively crossexamine the witnesses and omitted to put the material questions to the witnesses, which resulted in the denial of a fair trial and caused prejudice to the accused. Apart from that, some questions put in cross-examination would adversely affect the defence case. - C . Then the petitioner engaged another lawyer for defending his case. After perusal of the case records the learned lawyer advised the petitioner that the cross-examination of the material witnesses are essential for the just decision of the case. Then the petitioner filed two petitions before the Fast-track special court (POCSO), Nadapuram. One is for reopening the evidence and the other is for recalling the witnesses PWs 1,2,5,6 and 19. Both petitions were partly allowed by the court and permitted to recall the PW19 investigation officer only for examination. The Cross examination of the investigation officer without examining the other witnesses is futile process.” Crl.M.C.No.2262 of 2023 4 6. The learned counsel for the petitioner submitted that the petitioner was not given proper legal aid during trial. It is contended that his right to have fair trial has been put to danger. 7. The learned Public Prosecutor opposed the reliefs prayed for in the petition. 8. The Trial Court mainly relying on sub-section (5) of Section 33 of the POCSO Act arrived at a finding that recalling of PWs 1, 2, 5 and 6 is not at all required. 9. Sub-section (5) of Section 33 of the POCSO Act mandates that the Trial Court shall ensure that the child witness is not called repeatedly to testify in the Court. 10. 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 Crl.M.C.No.2262 of 2023 5 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 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: Mohanlal Shamji Soni v. Union of India [(1991 Supp(1) SCC 271] : [1991 SCC (Cri) 595)], Zahira Habibulla H. Sheikh and others v. State of Gujarat and others [2006 6 Crl.M.C.No.2262 of 2023 (3) SCC 374], 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]}. 11. The power under Section 311 Cr.PC is very wide. The Court has discretionary power to examine any witness it likes for a just decision in the case. The provision essentially is to see that insofar as the evidence is concerned, no prejudice is caused to anyone. Sub-section (5) of Section 33 cannot be treated as a bar in exercising the wide powers given to the Court under Section 311 Cr.PC. 12. This is a case where the petitioner has come up before this Court contending that there is a failure of equal justice under the law. ## 13. In Zahira Habibullah Sheikh and others v. State of Gujarat and others [2006 (3) SCC 374] the Apex Court held thus: “38. Failure to accord fair hearing either to the Accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, Crl.M.C.No.2262 of 2023 7 it may be vitiated and violated by an over hasty stagemanaged, tailored and partisan trial. 39. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.” ## 14. In Ranchod Mathur Wasawa v. State of Gujarat [(1974) 3 ## SCC 581] the Apex Court observed thus: “The Sessions Judge should view with sufficient seriousness the need to appoint State Counsel for undefended Accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available to the advocate chosen so that he may serve the cause of justice with all the ability at his command, and the Accused also may feel confident that his counsel chosen by the court has had adequate time and material to defend him properly.” 15. In the present case, the petitioner has now engaged a lawyer of his choice. 16. Having regard to the fact that the petitioner is facing grave offences, I am of the view that the Court below should have recalled PWs 1, 2, 5 and 6 for further examination. Resultantly, Annexure A order to the extent it rejected the prayer for recalling PWs 1, 2, 5 and 6, stands set aside. The Court below shall recall Crl.M.C.No.2262 of 2023 8 those witnesses for facilitating further examination. The Court below shall try to complete the examination of these witnesses on the date of their appearance itself. The Criminal M.C is allowed as above. Sd/K.BABU, JUDGE KAS Crl.M.C.No.2262 of 2023 9 ## **APPENDIX OF CRL.MC 2262/2023** PETITIONER ANNEXURES Annexure A A CERTIFIED COPY OF THE COMMON ORDER IN CMP 71/2023 AND 72/2023 IN SC 314/2022 OF THE FAST TRACK SPECIAL COURT (POCSO),KOZHIKODE