Point of Law : Principle of fair trial demands that no party in a trial can be denied opportunity to correct errors.

ORDER :

In this Crl.M.C., filed under Section 482 Cr.P.C., the petitioner challenges the order dated 31.01.2023 in Crl.M.P.No.53 of 2023 in S.C.No.694/2021 (Annexure-II) passed by the Fast Track Special Judge, Haripad.

2. The petitioner is accused No.3 in the Sessions Case. He faces charges under Sections 450 and 376 of the Indian Penal Code, Sections 4, 3, 6, 5(i), 6, and 5(q) of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and Section 75 of the Juvenile Justice (Care and Protection) Act, 2015.

3. The Court below has been proceeding with the trial of the case. The lawyer appearing for accused Nos.4 and 5 had also been appearing for the petitioner/accused No.3. The role of the petitioner is stated to be different from that of accused Nos.4 and 5. When the examination of PW1, the victim, and her mother (PW2) was completed, the petitioner engaged a new lawyer, who informed him that certain contradictions in the evidence of PW1 were not brought on record for which an application under Section 311 Cr.P.C. is to be filed.

4. The petitioner filed application under Section 311 Cr.P.C. and prayed for recalling PW1, the victim.

5. The Court below rejected the application on the ground that :

(1) Recalling PW1 to testify repeatedly about the incident is in violation of Section 33(5) of the POCSO Act.

(2) The petitioner/accused No.3 had sufficient opportunity to cross-examine PW1.

(3) The victim had gone into a swoon during the cross-examination.

6. Heard both sides.

7. The learned counsel for the petitioner contended that as the victim is aged 22 years, the bar under Section 33(5) of the POCSO Act is not applicable. The learned counsel further contended that an error committed by the previous lawyer of the petitioner should not cause prejudice to the petitioner/accused No.3.

8. The learned Public Prosecutor, per contra, submitted that the attempt of the petitioner is to prolong the trial as he was given enough opportunity to cross-examine PW1.

9. The Court below, relying on Section 33(5) of the POCSO Act, held that recalling the victim to testify repeatedly about the incident cannot be permitted.

10. Admittedly, the victim is aged 22 years, though at the time of the alleged commission of the offence she was aged below 18 years.

11. Section 33(5) of the POCSO Act reads thus:-

“33. Procedure and powers of Special Court.-(1)

……………….

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court.”

12. Section 2(d) of the POCSO Act defines “child” as any person below the age of eighteen years. For the purpose of Section 33(5) of the Act, the relevant age is the age at the time of examination of the witness. Section 33(5) has no relevance in the present case. Therefore, the finding of the trial Court that recalling PW1 would lead to violation of Section 33(5) of POCSO Act cannot be sustained.

13. Coming to the scope of Section 311 Cr.P.C.. The section provides that any Court may, at any stage of inquiry, trial, or other proceedings under the Cr.P.C., 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 matter.

14. The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair a