IMPORTANT POINTS:
Merely because the petitioner (accused) committed a mistake in misquoting the wrong provision (Section 311 of the Cr.P.C in Annexure A4) instead of correct provision (Section 233 Cr.P.C) cannot be determinative factor for rejecting the petitioners plea. Therefore the main ground of the rejection of the Sessions Court that the relevant parameters for exercising the discretionary powers so as to re-open the evidence and recalling the witness as per Section 311 of the Cr.P.C is not really applicable and relevant for the present purposes.

The order under challenge in this case is the one as per the impugned Ext.P4 dated 31.01.2019 where by the Trial Court concerned (Court of Additional Session's Judge f0r Trial of cases relating to Atrocities and Sexual Violence against women and children), Ernakulam has rejected the plea of the petitioner (accused) to examine a witness on behalf of the defense.

2. The petitioner is a sole accused in above said Sessions Case, wherein the petitioner has been charged the offence punishable under Section 9(f)(l)(m) read with 10 of the Protection of Children from Sexual Offences Act, 2005 and Section 34 of the IPC.

3. The gist of the prosecution in this case is that the petitioner was teacher in a Madrassa during the period from 01.07.2016 to 08.12.2016, wherein he had committed the above said sexual offence on a minor victim girl child aged 9 years who was the student of the said Madrassa.

4. The core relevant facts to the extent, it is really necessary for the disposal of this case is as follows. Initially the prosecution had completed the evidence, thereafter the Court had taken up the proceedings under Section 313 of the Cr.P.C and the accused was subjected to Section 313 questioning process. Later the prosecution had filed an application under Section 311 of the Cr.P.C to reopen the prosecution evidence on the plea that a vital fact regarding the admission of the victim girl child to the Madrassa has to be proved by producing documentary evidence regarding the admission register of the said Madrassa and in that the document is to be marked and proved through the present Secretary of the Madrassa, who was proposed to examined as a additional prosecution witness. The plea of the prosecution for re-opening the evidence and to let in the additional prosecution evidence was allowed by the Court below on 02.11.2018. Thereupon, the petitioner had challenged the legality and correctness of the said order dated 02.11.2018 by filing an original petition (Criminal) under Article 227 of the Constitution of India before this Court which was dismissed by this Court as per judgment dated 09.11.2018. Thereafter, the Sessions Court concerned had allowed the prosecution to adduce the evidence through the present Secretary of the Madrassa, who was examined as PW14 and the admission register of the said Madrassa was marked as Ext.P10 through the said additional prosecution witness, viz, PW14.

5. In cross examination of PW14, it came out that the entire text of Ext.P10 additional document is in Arabic language and it was admitted by PW14 that he is not conversant with Arabic language. Thereafter, with an assistance of the Arabic language expert was examined as Court witness. It appears that the said Arabic language expert has translated only that portion of Ext.P10 document which pertain to the name of the minor victim child who was shown as the student of the said Madrassa. That portion of Ext.P10 showing only the translated version of name of the minor victim girl has been marked as Ext.P10(a). Thereafter, the Court below had again subjected the petitioner accused to Section 313 questioning process in order to enable the petitioner to present his version regarding the additional prosecution evidence of PW10 more particularly that of Ext.P10 and the petitioner has admitted Ext.P10 admission register.

6. It is thereafter the petitioner has filed the instant Annexure A2 CMP No. 77 of 2019 in the above Sessions case, which is styled as an application under Section 311 of Cr.P.C, taking up the plea that the evidence of the Secretary of the Madrassa who held that office at the time of the admission of that child is necessary as PW14 was admittedly only the Secretary of the Madrassa for the subsequent period. It is this application as per Annexure A2 that now been dismissed as per the impugned Annexure A4 order dated 31.1.2019. The Court below has issued the impugned Annexure-A4 rejection order mainly on the ground that the petitioner has already adm