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2024 DIGILAW 1518 (KER)

K. Angajan v. State Of Kerala

2024-11-20

A.BADHARUDEEN

body2024
ORDER : Order dated 05.10.2024 in Crl.M.P. No.619/2014 in S.C.No.101/2023 pending before the Special Court under the Protection of Children from Sexual Offences Act (for short 'POCSO Act' hereinafter), Thalassery is put under challenge by the accused in this Crl.M.C. filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 3. Precisely, in this case, the petitioner who alleged to have committed offences punishable under Section 354 of the Indian Penal Code as well as under Section 10 read with Section 9(l), (m)and (n) of POCSO Act was tried by the trial court. PW1 to PW13 were examined. Thereafter, the petitioner filed Crl.M.P.No.619/2014 in S.C.No.101/2023 and the copy of the same is Annexure AVI, wherein it is contended that at the time of cross examination of PW1/Victim, the counsel for the petitioner/accused was given instruction that the case was settled. But during chief-examination, the victim gave evidence in support of the prosecution case. It is contended that as no instructions were given to cross examine the victim, since the case was compromised, the counsel for the petitioner/accused could not cross-examine the victim/PW1 effectively. Hence, this petition to recall PW1/victim was lodged to cross examine PW1 further. 4. The prosecution side opposed the same on the ground that the attempt was to fill up the lacuna in evidence after effectively cross examining PW1 and to efface the evidence already given by PW1. 5. The learned Special Judge addressed the contentions, examined the evidence of PW1, PW2 and PW13 and found that PW1 supported the prosecution in her evidence before the court and she was effectively cross-examined. Thereafter, the accused settled the matter with the parents of the victim, and thereby her parents PW2 and PW13 did not support the prosecution case. So the accused wanted to recall PW1 to get the evidence contradicted. Finding so, the petition was dismissed. 6. Thereafter, the accused settled the matter with the parents of the victim, and thereby her parents PW2 and PW13 did not support the prosecution case. So the accused wanted to recall PW1 to get the evidence contradicted. Finding so, the petition was dismissed. 6. The learned counsel for the petitioner, while strongly canvassing the prayer to recall of PW1, placed a decision of the Apex Court reported in Rajaram Prasad Yadav v. State of Bihar and Another [2013 KHC 4513], wherein it has been held that a conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re -examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re- examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. 7. It is pointed out that since PW1 was not properly cross examined, the accused's right to defend the case has been prejudiced. Therefore, the order would require interference. 8. Strongly opposing interference with the impugned order, it is submitted by the learned Public Prosecutor that the general principles under Section 311 of Cr.P.C. as stated in Rajaram Prasad Yadav's case (supra) has no application in the present case, since Section 33(5) of POCSO Act imposes an additional restriction in the matter of repeated recalling of child witnesses. 9. The learned Public Prosecutor also submitted that the accused is now attempting to efface the evidence already recorded as that of PW1 by recalling her, in view of the interference of PW2 and PW13, as part of settlement and settlement of POCSO cases could not be legalised. 10. The learned counsel for the petitioner placed decision of this Court in Jerin Joy v. State of Kerala [ 2024 (4) KHC 188 ] wherein it is held that in this connection, it is worthwhile to note that as per Section 33(5) of the POCSO Act, it has been provided that the Special Court shall ensure that the child is not recalled repeatedly to testify in the court. This provision to be read and understood to hold that repeated examination of the child shall be avoided and this provision shall not be interpreted to hold that recalling of the child witness is prohibited in toto. Therefore, bar under Section 33(5) of the POCSO Act is not absolute and in an appropriate case, in order to meet the ends of justice, relaxation of the mandate under Section 33(5) of the POCSO Act is legally permissible. However, in such cases, it should be established that such recalling is absolutely necessary for the just decision of the case and the same shall not be for the purpose of filling up the lacuna in evidence or to fill up the omission at the instance of the counsel for the accused vis-a- vis the public prosecutor. 11. In this connection, it is relevant to refer two decisions of the Apex Court in this regard. 12. In the decision reported in Mishrilal v. State of M.P. and others [ (2005) 10 SCC 701 ], the Apex Court considered the issue how Section 311 of Cr.P.C. to be invoked and also whether the same can be used as a routine procedure to recall a witness once examined-in-chief and cross-examined fully. In paragraph 6 of the judgment, the Apex Court held as under; In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined-in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW2 Mokam Singh on 06.02.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version given a further opportunity at a later stage to complete efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses. 13. In another decision of the Apex Court reported in Hanuman Ram v. State of Rajasthan and others [AIR (2009) SC 69] also the Apex Court considered the power of the Court under Section 311 of Cr.P.C. and held in paragraph 7 as under; 7. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record of leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessary for application of judicial mind. 14. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessary for application of judicial mind. 14. Thus, the law is well settled that even though widest powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine, a witness who already examined, once a witness examined-in-chief and cross-examined fully, such a 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 an inconsistent statement before any other court or any forum subsequently. The courts have to follow the procedures strictly and cannot allow the witness to evade legal action for giving false evidence before the court or mere explanation that he had given it under the pressure of the police or some other persons. 15. Having appraised the facts and in view of the settled law, I have gone through the deposition of PW1 produced as Annexure AIV, herein. 16. On perusal of the deposition, it could be gathered that during the chief examination PW1 supported the prosecution case and spoke about the overt acts at the instance of the accused and she also admitted her signature in Ext.P1 FIS and Section 164 statement. Thereafter, even without a prayer for adjourning the cross examination, the counsel for the petitioner cross examined PW1 by putting necessary questions, effectively. The court also put a question and got answer thereof. 17. Reading the facts of this case, as discussed hereinabove, it is emphatically clear that PW1 given evidence before the court on understanding the seriousness of the offences committed by the accused and the trauma she faced in this connection. Though she was cross- examined, nothing extracted to disbelieve her version. In such a case, now the attempt of the accused is to recall PW1 with a view to efface her evidence and the same is impermissible. Further, Section 33(5) is an additional restriction when child witness is sought to be recalled. Therefore, the trial court rightly disallowed the petition and the said order does not require any interference. 18. In the result, this petition stands dismissed. Further, Section 33(5) is an additional restriction when child witness is sought to be recalled. Therefore, the trial court rightly disallowed the petition and the said order does not require any interference. 18. In the result, this petition stands dismissed. Registry is directed to forward a copy of this order to the trial court for information and further steps forthwith.