Point of Law: Court held that serious prejudice would be caused to accused by recalling a witness for purpose of identification alone as it would lead to making up inherent weakness of case and unfair advantage to prosecution.

ORDER :

1. The challenge in this Crl.M.C is to the order dated 16.2.2023 in Crl.M.P.No.958/2023 in C.C.No.438/2019 on the file of the Judicial First Class Magistrate Court, Chalakudy.

2. The petitioner is accused No.2. He faces a charge under Section 392 r/w Section 34 of IPC.

3. The prosecution case is that on 12.1.2022 at 5 a.m at Vennur Padam, the petitioner and the other accused committed robbery and thereby snatched away a gold chain weighing 16 grams belonging to PW1. The petitioner was riding the two-wheeler on which accused No.1 was riding pillion.

4. PW1 is the defacto complainant. She is the only occurrence witness. The prosecution examined PWs 1 to 15 and proved Exts.P1 to P27.

5. The learned Assistant Public Prosecutor, thereafter, filed an application under Section 311 of Cr.P.C to recall PW1, stating the reason that she omitted to identify accused No.2. The learned Assistant Public Prosecutor asserted that there was no evidence to identify accused No.2 and identification of the accused is very much essential for the just decision of the case.

6. The petitioner challenged the application contending, that while examining PW1, the learned Public Prosecutor had specifically asked about the identity of accused No.2/petitioner. However, the witness identified accused No.1 only. Though both the accused were present in the Court, PW1 failed to identify the petitioner/ accused No.2. The defence contended that recalling PW1, specifically for identification would cause prejudice to accused No.2, who was not identified in the box. The defence also contended that there is an inordinate delay in filing the application seeking the recalling of witness, which is also fatal.

7. After considering the rival contentions, the learned Magistrate recorded the finding that examination of PW1 is required to see whether there was any chance of identification which is essential for the just decision of the case.

8. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

9. The learned counsel for the petitioner contended that giving a further opportunity to PW1 only for identification is filling a lacuna in the prosecution case, which is not mandated under Section 311 of Cr.P.C.

10. The learned counsel contended that the prosecution attempts to make up the case's inherent weakness and to give the prosecution an unfair advantage.

11. The learned Public Prosecutor contended that the Court has wide power in summoning any witness, and if the examination of the witness is found to be essential for the just decision, the Court has to exercise its power under Section 311 of Cr.P.C.

12. The prosecution allegation is that the petitioner and the other accused committed robbery on 12.1.2022 at 5 a.m. It is alleged that accused No.1, in this case, snatched away the gold chain that belonged to PW1, and at the relevant time, he was riding pillion on a motorbike ridden by the petitioner.

13. PW1 is the only witness to the incident proper. At the time of her examination, the learned Assistant Public Prosecutor asked her whether she could identify the accused. On the date of her examination, the petitioner and accused No.1 were in the box. The witness identified accused No.1 alone. Even though a specific question was put to the witness regarding the identification of the accused, she failed to identify accused No.2.

14. Can the prosecution be permitted to summon PW1 specifically to identify accused No.2? If the witness is given one more chance to answer or to state the question of identity in the presence of two accused, she can naturally identify the accused.

15. Section 311 Cr.P.C 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