The power under Section 311 of Cr.P.C. should be invoked to meet the ends of justice, and changing counsel can be a relevant factor in recalling witnesses.

JUDGMENT

S Rachaiah, J. - The petitioner prays to quash the order dated 09.12.2022 passed in SPL.C.C.No.1/2022 on the file of the Additional District and Sessions Judge, FTSC-II (POCSO) D.K., Mangaluru.

2. The trial Court rejected the application filed by the petitioner under Section 311 of the Cr.P.C., wherein, the petitioner herein sought to recall PW-1 for further cross-examination. The trial Court, while rejecting the order observed the following:

"Here in the case, admittedly the previous counsel on record for the first accused has cross-examined the victim girl at length that too in the month of August, 2022. The learned counsel has not specified the area in respect of which the intending questions are left out and to be cross-examined the witness. But he has assigned the blind and vague reason stating that some questions are left left. This cannot be a strong and valid reason to exercise the powers and recall the victim girl for further cross-examination as rightly contended by the learned Special Public Prosecutor. Under the circumstances, the very application does not bear any merits rather it is intended to subject the victim girl for embarrassment by way of unnecessary cross-examination. In the absence of valid reasons, the question of recalling the witness is virtually amounts to abuse of the process of law. Therefore, I am declined to allow the application as it is devoid of merits. Accordingly, the application under Sec.311 of Cr.P.C. filed on behalf of the 1st accused stands rejected."

3. The learned counsel for the petitioner submits that the reason assigned by the trial Court would cause injustice to the accused / petitioner to have his fair trial. Due to the changed circumstances, recalling of victim is essential and also necessary to discredit the credibility of witnesses. The cross-examination though availed, after examination of all the witnesses, certain points are required to be asked to the victim. Therefore, the trial Court could have allowed the application and permit the petitioner herein to further cross-examine the victim. Denying such opportunity led the petitioner to approach this Court. If the order of the trial Court is not set aside, great injustice would be caused to the accused.

4. Per contra, learned HCGP vehemently opposed in allowing the petition by setting aside the order of the trial Court, in rejecting the application filed under section 311 of Cr.P.C.

5. It is further submitted that, the accused had availed opportunity of cross-examination and he has cross-examined at length, the alleged offences under the provisions of POCSO Act, and protection of the victim is also one of the significant role that Courts have to do.

6. It is further submitted that, the trial Court after appreciating the averments of the application, rejected the application, and therefore, allowing the application may not be appropriate in this case. It is also necessary to bring to the notice of the Court that, mere changing of counsel would not be sufficient to recall the witnesses who have already been examined and cross-examined. The Hon'ble Supreme Court time and again reiterated that, mere changing of counsel cannot be the reason to recall the witness for cross-examination. Thus, the petition filed by the petitioner deserves to be dismissed.

7. After having heard the rival contentions of the learned counsel for the parties, on perusal of the application and also order-sheet, it appears that, the accused / petitioner has changed the counsel on 01.10.2022 and an application for recalling of PW.1 was filed on the same day and the order has been passed on 09.12.2022. Though changing of counsel may not be an appropriate ground to allow the application filed under section 311 of Cr.P.C., the changed circumstances cannot be ignored.

8. It is relevant to refer the judgment of the Hon'ble Supreme Court in the case of Varsha Garg v. State of Madhya Pradesh and Others 2022 LIVE LAW (SC) 662, held that the application cannot be di