Crl.M.C No.3065 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 CRL.MC NO. 3065 OF 2024 ``` ``` CRIME NO.1223/2022 OF Adoor Police Station, Pathanamthitta AGAINST THE ORDER DATED 18.03.2024 IN CRL.M.P.54/2024 IN SC NO.1018 OF 2022 OF FAST TRACK SPECIAL COURT, ADOOR PETITIONER/S: ``` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER POLICE STATION OF ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691523`** ## **`PUBLIC PROSECUTOR SMT.NIMA JACOB`** ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 01.04.2024, THE COURT ON 03.04.2024 PASSED THE FOLLOWING: ``` Crl.M.C.No.3065/2024 2 _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.M.C No.3065 of 2024_ _================================ Dated this the 3rd day of April, 2024_ ## _**O R D E R**_ The sole accused in S.C.No.1018/2022, on the files of Special Court under the Protection of Children from Sexual Offences Act, 2012, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short) challenging the order in Crl.M.P.No.54/2024 dated 18.03.2024, whereby the Special Court allowed an application filed under Section 311 of Cr.P.C at the instance of the prosecution to recall PW17 for examination, further. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Crl.M.C.No.3065/2024 3 3. It is argued by the learned counsel for the petitioner that in this matter trial started on 26.04.2023 and evidence was recorded. On completion of evidence, parties were heard in detail. When the case was posted for judgment, the present petition was filed to recall and examine PW17 further with a view to fill up the lacunas in the prosecution evidence as the same would prejudice the right of the accused. Therefore, the order impugned would require interference by this Court. 4. It is contended by the learned counsel for the petitioner that the legal position as regards to Section 311 of Cr.P.C is well settled and he has placed decision of this Court reported in [2022 (1) KHC 480 : 2022(1) KLT 512 : 2022 KHC OnLine 47 : 2022(1) KLJ 385 : 2022 KER 2829], _**State of Kerala v. Sunil N.S @ Pulsar Suni & Ors.**_ with reference to paragraph 8. He also placed decision of this Court reported in [2023 (5) KHC 468 : 2023 KHC Crl.M.C.No.3065/2024 4 OnLIne 569 : 2023 KER 51956 : 2023 (5) KLT 236 : ILR 2023 (e) Ker.979], _**Karthik S.Nair v. State of Kerala**_ , as pointed out. 5. Repelling this argument the learned Public Prosecutor submitted that when the prosecution felt that recalling and further examination of PW17 are essential for the just decision of the case so as to prove the place of occurrence, which is seriously disputed, the present petition under Section 311 of Cr.P.C has been filed. The Special Court rightly allowed the plea under Section 311 of Cr.P.C and the same doesn’t require any interference, as no prejudice would be caused to the accused in any manner. 6. As far as the legal position to allow a petition filed under Section 311 of Cr.P.C, is concerned, the argument advanced by the learned counsel for the petitioner, relying on the decisions of this Court is correct. 7. Section 311 of Cr.P.C provides that _any Court may, at_ Crl.M.C.No.3065/2024 5 _any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine 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 case._ 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, **==> picture [36 x 74] intentionally omitted <==** (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witnesses, or Crl.M.C.No.3065/2024 6 (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. 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 Crl.M.C.No.3065/2024 7 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 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 Crl.M.C.No.3065/2024 8 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: Crl.M.C.No.3065/2024 9 **==> picture [36 x 93] intentionally omitted <==** (i) At the option of the prosecution, (ii) at the option of the accused, and (iii) the Court suo motu. Second part of Section 311 imposes a mandatory obligation on the part of the Court to summon and examine or to recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 12. On perusal of the order impugned, the learned Special Judge held that _recalling and re-examining PW17 is essential for the just decision of the case to prove the place of occurrence and_ . _there is no likelihood of causing any prejudice to the accused_ Thus it is perceivable that the trial court though considered an application filed by the prosecution, in fact, invoked the power of the Court available as second part of Section 311 of Cr.P.C, giving mandatory obligation to the Court to recall PW17 to prove the Crl.M.C.No.3065/2024 10 place of occurrence in a case where evidence in all other respect is completed. When the trial courts, which recorded evidence, and aware of the evidence already available, if invoke second part of Section 311 holding that recalling and further examination of a witness/es is/are necessary, the superior Courts consider its legality, on challenge, should be too slow in interfering with the said order, unless the order of the Court/s is found to be perverse or arbitrary in any manner. No such perversity or arbitrariness could be found in the order impugned. Thus it is held that the order of the Special Judge doesn’t require any interference. Accordingly, this Crl.M.C is found to be meritless and is dismissed accordingly. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C.No.3065/2024 11 ## **`APPENDIX OF CRL.MC 3065/2024`** ``` PETITIONER'S ANNEXURES ``` ``` Annexure A4 ``` ``` THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/SOLE ACCUSED TO THE CRL.MP NO.54/2014 IN S.C NO.1018/2024 ON THE FILES OF FAST TRACK SPECIAL COURT, ADOOR ```