Ratheesh K.C v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 CRL.MC NO. 4465 OF 2024 ``` ``` CRIME NO.655/2023 OF KUTTIYADI POLICE STATION, KOZHIKODE ``` ``` SC NO.1394 OF 2023 OF FAST TRACK SPECIAL COURT, NADAPURAM PETITIONER/RESPONDENT/ACCUSED: ``` ``` RATHEESH.K.C, ``` ``` AGED 39 YEARS,S/O. PALANI, ONTHATH HOUSE, KUTTIADY (P.O), KADEKKACHAL, KUTTIADY, KOZHIKODE DISTRICT, PIN - 673508 ``` ``` BY ADVS. ``` ``` R.BINDU (SASTHAMANGALAM) ``` ``` G.RAJAGOPAL (KUMMANAM) ``` ## **`RESPONDENT/PETITIONER/COMPLAINANT:`** ``` STATE OF KERALA, ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ``` ``` BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.5.2024, THE COURT ON 06.06.2024 PASSED THE FOLLOWING: ``` **==> picture [398 x 93] intentionally omitted <==** Crl.M.C.No.4465/2024 2 ## _**“C.R”**_ ## _**A BADHARUDEEN, J.**_ ## _**===================================**_ _Crl.M.C No.4465 of 2024_ _==================================== Dated this the 6[th] day of June, 2024_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short) by the accused in Crime No.655 of 2023 of Kuttiyadi Police Station, Kozhikode, with a prayer to quash Annexure A5 order dated 14.05.2024 in C.M.P.No.156/2024 in S.C.No.1394/2023 on the files of Fast Track Special Judge, Nadapuram, where the prosecution alleges commission of offences punishable under Sections 376(2)(n), 450, 354 and 506 of the Indian Penal Code as well as under Sections 51, 5n, 6(1), 3(a) and 4(2) of the Protection of Children from Sexual Offences Act (‘POCSO Act’ for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the entire case records in this matter. Crl.M.C.No.4465/2024 3 3. It is argued by the learned counsel for the petitioner that the victim in this crime was examined as PW11 on 17.04.2024 and she turned hostile to the prosecution. Thereafter she was subjected to questioning by the learned Public Prosecutor but nothing extracted to support the prosecution. Later, on 03.05.2024, the learned Public Prosecutor filed Annexure-A3 petition under Section 311 of Cr.P.C to recall and re-examine PW11 on the ground that the victim reached the office of the learned Public Prosecutor and stated that she was coerced and threatened by her relatives not to disclose the details of the case, in accordance with statements she had given before the police during investigation, where the accused is none other than the uncle of the victim. According to the learned counsel for the petitioner, Annexure-A4 counter statement was filed by the petitioner and opposed the prayer for recall of PW11. But the learned Special Judge negatived the contentions in the counter statement and allowed the petition to recall PW11 for further examination. The learned counsel for the petitioner Crl.M.C.No.4465/2024 4 argued that such a course of action is impermissible and the same would be fatal to the interest of the accused. He has placed a decision of the Apex Court reported in [2005 KHC 1776 : 2005(1) SCC 701 : 2005 SCC (Cri) 1712], _**Mishrilal**_ _**& Ors. v. State of M.P & Ors.**_ to contend that once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given inconsistent statements before any other Court or forum subsequently. 4. Whereas it is submitted by the learned Public Prosecutor that since the accused in this crime is none other than the uncle of the victim, the relatives forced her to be hostile to the prosecution and she was aggrieved in the matter of failure to give what actually transpired in a case where serious offences are alleged to be committed. Therefore, the learned Special Judge rightly allowed the petition. 5. While addressing the contentions in _**Mishrilal & Ors.**_ _**v. State of M.P & Ors.** (supra)_ , the Supreme Court held that Crl.M.C.No.4465/2024 5 once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given inconsistent statements before any other Court or forum subsequently. But the said decision in no way curtails the power of the Court to recall and reexamine any person already examined if his evidence appears to be essential to the just decision of the case. Going by the order, the learned Special Judge relied on the decision reported in [(2006) 7 SCC 529], _**U.T of Dadra and Nagar Haveli & Anr. v. Fatehsinh Mohansinh Chauhan**_ , wherein in paragraph 15 held that, a conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in Crl.M.C.No.4465/2024 6 order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the 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. The decision reported in [AIR 2007 SC 3029], _**Iddar & Ors. v. Aabida & Anr**_ ., also was relied on by the learned Special Judge while holding that recalling and re-examining PW11 is necessary in this particular case to have a just decision in the case since intimidation of PW11 by her relatives at the time when PW11 was earlier examined could not be ruled out. 6. In the decision reported in [2024 (3) KHC 15], _**XXXX v. State of Kerala**_ , 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_ Crl.M.C.No.4465/2024 7 _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 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 of the case and it must be used judicially and not_ Crl.M.C.No.4465/2024 8 _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:_ **==> picture [36 x 60] 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.”_ 7. When the victim approached the Prosecutor and the Prosecutor filed petition before the court to recall the victim (PW11) on the allegation that the victim (PW11) was forced to give evidence by the relatives to save his uncle, the court has the absolute power to decide as to whether recalling and re-examination of the witness are necessary to have a just decision of the case. It is well settled that Crl.M.C.No.4465/2024 9 power of the Court to recall and re-examine any witness/witnesses already examined can be invoked when the Court is of the view that the evidence of the said witnesses is essential to the just decision of the case. In the case at hand, the learned Special Judge exercised the said power adverting to Section 311 of Cr.P.C, holding that recalling and re-examining of PW11 is necessary for the just decision of the case. Thus the order impugned could not be held as illegal or erroneous to have interference by this Court as sought for in this petition. 8. In the above circumstances, this petition must fail. Accordingly, the same is dismissed. Registry shall forward a copy of this order to the Special Court for information and further action. **==> picture [398 x 38] intentionally omitted <==** Sd/- _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ **==> picture [398 x 70] intentionally omitted <==** Crl.M.C.No.4465/2024 10 ## **`APPENDIX OF CRL.MC 4465/2024`** ``` PETITIONER’S ANNEXURES ANNEXURE - A1 ``` ``` TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.655/2023 OF KUTTIADY POLICE STATION DATED 21.9.2023 ALONG WITH THE STATEMENT OF THE VICTIM. ``` ``` ANNEXURE - A2 ``` ``` TRUE COPY OF THE DEPOSITION OF THE VICTIM DATED 17.4.2024 IN S.C.NO.1394/2023 ON THE FILES OF THE COURT OF THE FAST TRACK SPECIAL JUDGE, NADAPURAM ``` ``` ANNEXURE - A3TRUE COPY OF THE PETITION IN C.M.P NO. 156/2024INS.C.NO.1394/2023DATED 03.05.2024 ``` ``` ANNEXURE - A4TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER DATED 06.05.2024 IN C.M.P NO.156/2024 IN S.C NO.1394/2023 ANNEXURE - A5CERTIFIED COPY OF THE ORDER DATED 14.05.2024 IN C.M.P.NO.156/2024 IN S.C.NO. 1394/2023 PASSED BY THE COURT OF THE FAST TRACK SPECIAL JUDGE, NADAPURAM. ``` ``` RESPONDENT’S ANNEXURES : NIL ```