Dileep v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 CRL.MC NO. 3789 OF 2024 ``` ``` CRIME NO.768/2021 OF SOORANADU POLICE STATION, KOLLAM CRMP NO.347 OF 2023 OF FAST TRACK SPECIAL COURT (POCSO), ``` ## **`KARUNAGAPPALLY`** ## **`PETITIONER/PETITIONER/ACCUSED:`** ``` DILEEP AGED 27 YEARS S/O.DEVARAJAN, VAZHAPPALLY VADAKKATHIL, PADINJATTAMURI KIZHAKKU, SOORANAD P.O., SOORANAD NORTH VILLAGE, KUNNATHOOR TALUK, PIN - 632510 ``` ``` BY ADVS. UMMUL FIDA C.IJLAL P.PARVATHY ``` ## **`RESPONDENTS/RESPONDENT/STATE AND DE FACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` ADDL.R2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` *ADDL.R2 IS IMPLEADED AS PER ORDER DATED 12.7.2024 IN CRL.M.A.NO.2/2024 IN CRL.M.C.NO.3789/2024. ``` ## **`R1 BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3789 OF 2024 2 ``` ## **CR** ## **ORDER** Dated this the 24[th] day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioner, who is the accused in Crime No.768/2021 of Sooranad police station, Kollam Rural, now pending as S.C.No.210/2022 on the files of the Fast Track Special Court (PoCSO), Karunagappally and the prayers herein are as under: - _I. Call for the records pursuant to Annexure A7 order in Crl.M.P.No.347 of 2023 in SC No.210 of 2022 on the file of the Court of the Fast Track Special Judge, Karunagappally and to quash the same and all proceedings pursuant thereto;_ - _II. To direct the Fast Track Special Judge, Karungappally to consider Annexure A13 petition before proceedings further in SC No.210 of 2022;_ - _III. Dispense with filing of the translation of vernacular documents produced by the petitioners in this case;_ _and_ ## **`CRL.MC NO. 3789 OF 2024 3`** - _IV. Such other relief in favour of the petitioners as this Hon’ble Court may deem fit to grant._ 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The petitioner herein challenges Annexure A7 order, whereby, the learned Special Judge, Fast Track Special Court, Karunagappally, dismissed the petition filed under Section 311 of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter), by the petitioner herein. 4. The learned counsel for the petitioner zealously argued to convince this Court that, there are omissions and contradictions in the evidence of PW1 and in the 164 statement. Therefore, in order to provide an opportunity to cross examine PW1 again, recalling of PW1 is liable to be allowed. Consequently, in order to prove the contradictions anticipating from PW1, PW25 and PW27 also to be recalled. She also submitted that, the learned Special Judge not specified reasons while dismissing the petition filed under Section 311 of the Cr.P.C., and on that ground also, the order would require interference. The learned counsel also submitted that, earlier, ## **`CRL.MC NO. 3789 OF 2024 4`** Annexure A7 order was challenged before this Court in Crl.M.C.No.7331/2023 and this Court, even though not interfered with Annexure A7 order, provided opportunity to challenge the same, if the new legal aid counsel also wants to pursue the petition filed under Section 311 of the Cr.P.C. Now, new legal aid counsel is appointed, in view of the liberty given in Crl.M.C.No.7331/2023. 5. Zealously opposing the above prayer, it is submitted by the learned Public Prosecutor that, no valid reasons stated in Annexure A5 petition to recall PW1. It is also submitted that, the accused was granted bail in this crime and while enjoying bail and when this case was posted for examination of witnesses, particularly, PW1, the accused trespassed upon the house of PW1 and assaulted the parents of PW1 and thereafter, he absconded and for which, crime was registered alleging commission of offences punishable under various Sections including one under Section 307 of the Indian Penal Code (for short, 'the IPC' hereinafter). Again, he attacked the brother of PW1, for which, another crime, alleging offence punishable under Section 307 of the IPC also was registered. It is submitted by the learned Public Prosecutor that, now, PW1's life ## **`CRL.MC NO. 3789 OF 2024 5`** also is under threat, at the instance of the accused and fatality being avoided, since he has been in custody after involvement of two more crimes. Accordingly, the learned Public Prosecutor submitted that, no necessity to recall PW1 and consequently, PW25 and PW27 in the instant case and therefore, Annexure A7 order only to be confirmed. The learned Public Prosecutor also pointed out that, there is restriction under Section 33(5) of the PoCSO Act in the matter of recalling a child witness repeatedly. 6. In this matter, in order to ascertain whether petition filed under Section 311 of the Cr.P.C., at the instance of the petitioner/accused, deserves to be considered on merits, I have perused the grounds stated in paragraph No.3 of Annexure A5 petition and the same reads as under: _“3) The deposition of PW1/victim in the present case was taken on 4.01.2023. A close reading of the deposition of PW1/victim in this case revealed facts that point towards the PW1/victim being tutored. It has given rise to major ambiguity in the prosecution's case and unless such ambiguity is resolved by recalling PW1/victim, a just decision in the case cannot be arrived at. As such, there arises a necessity to cross-examine PW1/victim regarding_ ## **`CRL.MC NO. 3789 OF 2024 6`** _these aspects in the interest of justice. Additionally, on perusal of the records of the case, it was noticed that the possibility of PW1/victim being tutored has shed new light on various contradictions and omissions in the 161 statement and 164 statement of the PW1/victim.”_ 7. On reading paragraph No.3 of Annexure A5 petition altogether, the sole ground, on which, recalling of PW1, PW25 and PW27 is being pressed into is that, PW1 given evidence, being a tutored witness. 8. Considering the said plea and in consideration of the objection raised by the learned Public Prosecutor, the learned Special Judge found that the ground stated in the petition for recalling PW1, PW25 and PW27, is baseless. Further, no major contradictions and omissions were there in the 161 statement and Ext.P1 FIS than the oral version of PW1. It was also observed by the learned Special Judge that, prosecution evidence was closed months back on 28.3.2023 at the time when the learned Special Judge passed the order on 23.8.2023. 9. Now, the question arises for consideration is, is it permissible to recall a witness merely on the allegation that the ## **`CRL.MC NO. 3789 OF 2024 7`** witness being tutored when examined earlier? 10. 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 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_ ``` CRL.MC NO. 3789 OF 2024 8 ``` _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 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 reexamine 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_ ``` CRL.MC NO. 3789 OF 2024 9 ``` _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._ _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_ ``` CRL.MC NO. 3789 OF 2024 10 ``` _person if his evidence appears to it to be essential to the just decision of the case._ 11. Going by the legal position espoused hereinabove, a witness could not be recalled on the sole ground that the witness was tutored when the witness was examined earlier. If the counsel for the accused felt during examination of PW1 that, she was tutored, he should have cross examined PW1, using the opportunity provided. Here, the sole ground raised in Annexure A5 petition confined to one and only point that PW1, the victim was tutored while examining as PW1, and therefore, an opportunity be provided to recall and reexamine PW1. In fact, such an allegation alone is not the sole basis to consider a petition filed under Section 311 of the Cr.P.C., when the trial court found that recalling of the witnesses is not necessary for the just decision of the case. Therefore, there is no necessity to revisit the order, to have a contra finding, where recalling of child witness is deprecated under Section 33(5) of the PoCSO Act. Therefore, Annexure A7 order does not require any interference and accordingly, the same is confirmed. Consequently, this petition is dismissed. ``` CRL.MC NO. 3789 OF 2024 11 ``` The interim order of stay granted by this Court stands vacated. Registry is directed to inform this matter to the trial court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb ``` CRL.MC NO. 3789 OF 2024 12 ``` ## **`APPENDIX OF CRL.MC NO. 3789 OF 2024`** ||**`APPENDIX OF`**<br>**`CRL.MC NO. 3789 OF 2024`**| |---|---| |**`PETITIONER’S`**|**`ANNEXURES`**| |**`ANNEXURE A1`**|**`TRUE COPY OF THE FIR NO.768 OF 2021`**| ||**`OF SOORANADU POLICE STATION, KOLLAM`**| ||**`RURAL ALONG WITH THE 161 STATEMENT`**| ||**`DATED 16/06/2021`**| |**`ANNEXURE A2`**|**`A TRUE COPY OF THE FINAL REPORT`**| ||**`DATED 10/12/2021`**| |**`ANNEXURE A3`**|**`TRUE COPY OF THE DEPOSITION OF THE`**| ||**`VICTIM`**| |**`ANNEXURE A4`**|**`TRUE COPY OF THE 164 STATEMENT`**| |**`ANNEXURE A5`**|**`TRUE COPY OF THE PETITION FILED AS`**| ||**`CRL.M.P.NO.347 OF 2023 IN SC.NO.`**| ||**`210 OF 2022 BEFORE THE HON'BLE FAST`**| ||**`TRACK SPECIAL COURT, KARUNAGAPPALLY`**| ||**`DATED NIL`**| |**`ANNEXURE A6`**|**`TRUE COPY OF THE OBJECTION DATED`**| ||**`NIL`**| |**`ANNEXURE A7`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`23.08.2023 IN CRL.M.P.NO.347 OF`**| ||**`2023 IN SC.NO.210 OF 2022`**| |**`ANNEXURE A8`**|**`A TRUE COPY OF THE INTERIM ORDER`**| ||**`DATED 12/10/2023 IN CRL.M.C.NO.`**| ||**`7331/2023`**| |**`ANNEXURE A9`**|**`A TRUE COPY OF THE OBJECTION FILED`**| ||**`BY THE RESPONDENT IN CRL.M.C.`**| ||**`NO.7331/2023`**| |**`ANNEXURE A10`**|**`A TRUE COPY OF THE PROCEEDINGS`**| ||**`DATED 17/11/2023 IN SC.NO.210 OF`**| ||**`2022`**| |**`ANNEXURE A11`**|**`A TRUE COPY OF THE JUDGMENT DATED`**| ||**`27/11/2023 IN CRL.M.C.NO.7331/2023`**| |**`ANNEXURE A12`**|**`A TRUE COPY OF THE PROCEEDINGS`**| ||**`DATED 12/03/2024 IN SC.NO.210 OF`**| ||**`2022 BEFORE THE HON'BLE FAST TRACK`**| ||**`SPECIAL COURT, KARUNAGAPPALLY`**| |**`ANNEXURE A13`**|**`A TRUE COPY OF THE UNNUMBERED 311`**| ||**`PETITION DATED 18/4/2024 IN SC.`**| ||**`NO.210 OF 2022 BEFORE THE HON'BLE`**| ||**`FAST`**<br>**`TRACK`**<br>**`SPECIAL`**<br>**`COURT,`**| ||**`KARUNAGAPPALLY`**| |**`RESPONDENTS’`**|**`ANNEXURES : NIL`**|