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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J.
Vineeth, S/o. Vijayan - Petitioner
Versus
State Of Kerala, (S.H.O. Chathannoor Police Station, Kollam District) Represented By Public Prosecutor, High Court Of Kerala, Ernakulam – Respondent
Crl. MC No. 9045 Of 2022
Decided On : 12-12-2022
Code of Criminal Procedure, 1973 - Section 311 - POCSO Act - Sections 3D r/w 4, S.33(5) – Summons for material witness – Penetrative sexual assault – Criminal Trial - Crl.M.C. filed to set aside order dismissing an application filed – Whether case is maintainable – Held, It was thereafter application for recalling the witness was filed in order to contradict the 164 statement with the witnesses - Court below dismissed the application mainly relying on S.33(5) of the POCSO Act on the ground that the child witness cannot be repeatedly called for examination - Crl.M.C disposed of.
ORDER :
1. This Crl.M.C. has been filed to set aside Annexure-A2 order dismissing an application filed under Section 311 of Cr.P.C
2. The petitioner is the accused. He faces trial for the offences punishable under Sections 3D r/w 4 of the POCSO Act.
3. On the side of the prosecution, PWs 1 to 8 were examined. Thereafter, the petitioner filed a petition to recall PW4 and PW6 as Crl.M.P.No.1392 of 2022. The court below after hearing both sides dismissed the same as per Annexure A2 order. The said order is under challenge in this Crl.M.C.
4. I have heard Sri.P.Rahul, the learned counsel for the petitioner and Smt. T.V. Neema, the learned senior Public Prosecutor.
5. PW4 was examined on 17/2/2022 and PW6 was examined on 18/2/2022. Admittedly, at that time, the copy of the 164 statement of PW4 was not made available to the petitioner. He got it only on 21/3/2022. It was thereafter application for recalling the witness was filed in order to contradict the 164 statement with the witnesses. The court below dismissed the application mainly relying on S.33(5) of the POCSO Act on the ground that the child witness cannot be repeatedly called for examination.
6. Section 311 of Cr.P.C gives wide power to the Magistrate to recall any witness already examined or to summon any additional witness at any stage of the proceedings for the just decision of the case. The bar under Section 33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, of course the child witness can be recalled. Admittedly when PW4 and PW6 were examined, the petitioner did not receive the 164 statement. The petitioner has every right to contradict the witness with the 164 statement. Hence, I am of the view that recalling of the witnesses is necessary for the just decision of the case.
In the light of the above findings, Annexure-A2 stands hereby set aside. Crl.M.P.No.1392 of 2022 stands allowed. This Crl.M.C is disposed of.
Recall of child witness – Bar under Section 33(5) of POCSO Act is not absolute.
The legal principle established is that the bar under Section 33(5) of the POCSO Act is not absolute, and recalling of a child witness is permissible if necessary for the just decision of the case, b....
The legal principle established is that the bar under Section 33(5) of the POCSO Act is not absolute, and recalling of the child witness is legally permissible in an appropriate case if necessary for....
The court upheld the trial court's decision to deny the recall of a child witness, emphasizing the need for effective prior cross-examination and adherence to statutory restrictions under the POCSO A....
The court affirmed that recall of witnesses under Section 311 Cr.P.C. must serve a valid purpose and the previous opportunities for cross-examination were adequate, aligning with the protective manda....
The central legal point established in the judgment is the interpretation of Section 311 of Cr.P.C and the dilution of rigor under Section 33(5) of the POCSO Act once the victim crosses the age of 18....
Point of Law : Principle of fair trial demands that no party in a trial can be denied opportunity to correct errors.
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