Sivakumar v. State of Kerala

CRL.MC NO. 777 OF 2021 1 ## **“C R”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **CRL.MC NO. 777 OF 2021** **AGAINST THE ORDER/JUDGMENT IN SC 1116/2017 OF I ADDITIONAL SESSIONS COURT, KOLLAM** ## **PETITIONER/ACCUSED** SIVAKUMAR AGED 44 YEARS S/O. DIVAKARAN, PUTHEN VILA VEEDU, P. K. JUNCTION, KIZHAVOOR CHERRI, THRIKKOVILVATTOM VILLAGE, KOLLAM. BY ADV ABHILASH S.FRANCIS ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. ## **OTHER PRESENT:** BY PUBLIC PROSECUTOR SRI. C.N.PRABHAKARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.MC NO. 777 OF 2021 2 ## **ORDER** The petitioner is facing trial in Sessions Case No. 1116 of 2017 before the Additional Sessions Court-I, Kollam registered for offence punishable under Section 12 of the Protection of Children From Sexual Offences Act (hereinafter being referred to as POCSO Act) 2. During the pendency of the trial the learned Counsel for the accused filed an application as Crl.M.P.No.159 of 2020 under Section 311 of the Code of Criminal Procedure to recall the child witness/victim who was examined as PW1 for further examination. The learned Addl. Sessions Judge-I, Kollam after considering the scope of the relevant provision in CrPC, Section 33(5) of the POCSO Act and also the rival contentions of the parties, by its order dated 19[th] Feburary 2020 dismissed the application. Aggrieved by the said order the petitioner/accused has approached this Court with this petition under Section 482 of the Code of Criminal Procedure . 3. Heard the learned counsel for the petitioner as well the learned Public Prosecutor. CRL.MC NO. 777 OF 2021 3 4. The allegation against the petitioner is that on 11.12.2016 he has committed sexual harassment on a minor child and thereby committed an offence punishable under Section 12 of the POCSO Act. 5. The victim involved in this case was examined as PW1 on 14.1.2020. Now the case stands posted for examination of the other witnesses. At that stage this petitioner has moved the application under Section 311 CrPC stating that he could not put certain contradictions and omissions to the witness and mark the same while examining her, as he was in haste in connection with another case. Hence, she has to be recalled and examined further, is the submission of the petitioner. The learned Addl. Sessions Judge by the order under challenge dismissed the application . 6. Annexure A2 is the affidavit filed by the petitioner before the court below to recall PW1 for further examination. It is stated in the affidavit that since his counsel was in a hurry in connection with another case which was posted for arguments he could not put certain contradictions and omissions to the witness and got it marked and hence, this application to recall the witness. 7. Section 311 CrPC which is relevant for the present purpose is CRL.MC NO. 777 OF 2021 4 ## reproduced here under. ## “311. **Power to summon material witness, or examine** **person present-** Any Court may, at 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 re-examine 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 CrPC stipulates that the court may at any stage of enquiry, trial or other proceedings may summon a witness or recall a witness if his evidence appears to be essential to the just decision of the case. So a discretionary power is conferred upon the court under Section 311 CrPC, which has to be exercised to render a just decision. 9. The principles related to the exercise of the power under Section 311 of Cr.P.C. have been settled by the Supreme Court in **Vijay Kumar v State of Uttar Pradesh and another** (2011 (8) SCC 136) as: ''17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The CRL.MC NO. 777 OF 2021 5 discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.....................'' ## 10. Again the Apex Court in **Rajaram Prasad Yadav v State of** **Bihar and another** (2013 (14) SCC 461) after discussing various decisions on the subject has reiterated the principle under Section 311 CrPC. In Para 17.4 to 17.7 it was observed as under: '' 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 examination in order to arrive at a just decision of the case.” Therefore, the said power should be exercised only on strong and CRL.MC NO. 777 OF 2021 6 valid reasons with great caution in the interests of justice, when the court finds that his evidence is essential to the just decision of the case. 11. Here, the witness sought to be recalled is a minor child and the offence alleged to have been committed by the accused is under the POCSO Act, which is enacted to protect children from offences of sexual assault, sexual harassment, exploitation etc. Section 33 of the Act deals with the procedure and powers of the special courts constituted for the trial of such cases. How the evidence have to be recorded by such courts is mandated in Chapter VIII where Section.33 of the Act is included. 12. Section 33 (5) of the Act reads as follows: “33(5). The Special Court shall ensure that the child is not called repeatedly to testify in the Court.” 13. Section 33(5) of the Act specifically states that special court shall ensure that the child is not called repeatedly to testify in the Court. Therefore, it is clear that as far as possible the evidence of the child has to be completed on the same day, in a child friendly atmosphere and that is the reason why such a provision has been incorporated in the Act. So the intention of the legislation is to avoid the stress and strain that will be caused to a child by calling him/her to testify in the court CRL.MC NO. 777 OF 2021 7 about the trauma faced, repeatedly. Needless to say, recalling a child victim to testify repeatedly about the incident has to be discouraged, either by the prosecution or by the defence. 14. In the case at hand, at the very outset it is to be noted that the grounds set out in the application for recalling the witness, is that the counsel could not confront the witness and mark certain contradictions and omissions as he hastily cross examined her. The learned counsel was in a hurry, in connection with another case, hence could not have an effective cross examination, appears to be the stand taken to recall the witness. Of-course the object of cross examination is to check the credibility of the witness. But the learned counsel handled the case in haste is not at all a strong or valid reason to exercise the discretionary power vested under Section 311 CrPC, which has to be exercised judiciously and not arbitrarily. The power under this provision shall not be exercised if the court finds that the request to recall if allowed will turn as an abuse of the process of law. Recalling the child who has faced the trauma of the alleged incident as well the fire of cross examination before the court, due to the omission on the part of the counsel who appeared for the petitioner, could be justified only in very extreme cases. Of-course CRL.MC NO. 777 OF 2021 8 it is the duty of the court to find out the truth of the case and the credibility of the witnesses could be tested through cross examination. But when the witness is a child involved in a child abuse case the trial court has to be more cautious and sensitive about the nature and extent of the power vested, though it is the prerogative of the court. Trial courts has to bestow special concern in a case of sexual abuse on minor child. Courts invariably examine child witnesses after conducting 'Voir Dire ' test to verify and assess the competency of the child. Whether the child is able to understand the questions put to him and is able to give rational answers will be verified and ascertained by the court before examination. When the child is a survivor/victim in an abuse case, repeatedly putting the child in the witness box to recite the events and face the sharp and piercing questions in cross examination will cause an adverse and negative impact on the child. A child in an abuse case has to throw away the long shadow of adverse childhood experiences and trauma from his/her mind forever to avoid physiological stress at the earliest and the court must help, protect and assist the child for the same while discovering the truth. Calling the child repeatedly to the court for examination will not be for the welfare of the child. Doubtless that the CRL.MC NO. 777 OF 2021 9 welfare and best interests of the child have to be given priority. So the lawyer/counsel appearing for the accused has to examine a child witness carefully ensuring that all the relevant matters are explored in the first instance itself and shall not attempt to recall again and again. Calling a child witness to court again and again for examination even amounts to a kind of intimidation on the child . Mind of a child is so sensitive and soft which could easily be offended. It is significant to note that special provisions are provided by the legislation even to have a child-friendly courtroom and space in courts to reduce the stress and atmosphere disruptive to the child. Apparently the order under challenge would reflect that the learned Additional Sessions Judge who recorded the evidence was fully convinced that further examination of the witness by recalling her to the court was quite unnecessary and no satisfactory reason was projected by the counsel to recall the witness. Mainly on that ground the application was dismissed. 15. In the light of the aforementioned observations, I find that the learned Additional Sessions Judge rightly after assigning cogent reasons dismissed the application and therefore there is absolutely no justification to interfere with the order and to recall the witness for further CRL.MC NO. 777 OF 2021 10 examination. Consequently, the order under challenge is confirmed and the Crl.M.C stands dismissed. Sd/- SHIRCY V smm JUDGE