IMPORTANT POINT
The power conferred under Section 311 of Cr.P.C. should be invoked only in the ends of justice and for strong and valid reasons.

1. The sole accused in S.C. No. 1018/2022, on the files of Special Court under the Protection of Children from Sexual Offences Act, 2012, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short) challenging the order in Crl. M.P. No. 54/2024 dated 18.03.2024, whereby the Special Court allowed an application filed under Section 311 of Cr.P.C. at the instance of the prosecution to recall PW-17 for examination, further.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail.

3. It is argued by the learned counsel for the petitioner that in this matter trial started on 26.04.2023 and evidence was recorded. On completion of evidence, parties were heard in detail. When the case was posted for judgment, the present petition was filed to recall and examine PW-17 further with a view to fill up the lacunas in the prosecution evidence as the same would prejudice the right of the accused. Therefore, the order impugned would require interference by this Court.

4. It is contended by the learned counsel for the petitioner that the legal position as regards to Section 311 of Cr.P.C. is well settled and he has placed decision of this Court reported in State of Kerala vs. Sunil N.S. @ Pulsar Suni and Others, 2022 (1) KHC 480 : 2022 (1) KLT 512 : 2022 KHC Online 47 : 2022 (1) KLJ 385 : 2022 KER 2829 with reference to paragraph 8. He also placed decision of this Court reported in Karthik S. Nair vs. State of Kerala, 2023 (5) KHC 468 : 2023 KHC Online 569 : 2023 KER 51956 : 2023 (5) KLT 236 : ILR 2023 (e) Ker. 979 as pointed out.

5. Repelling this argument the learned Public Prosecutor submitted that when the prosecution felt that recalling and further examination of PW-17 are essential for the just decision of the case so as to prove the place of occurrence, which is seriously disputed, the present petition under Section 311 of Cr.P.C. has been filed. The Special Court rightly allowed the plea under Section 311 of Cr.P.C. and the same doesn’t require any interference, as no prejudice would be caused to the accused in any manner.

6. As far as the legal position to allow a petition filed under Section 311 of Cr.P.C. is concerned, the argument advanced by the learned counsel for the petitioner, relying on the decisions of this Court is correct.

7. Section 311 of Cr.P.C. provides that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine 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 case.

8. Section 311 manifestly in 2 parts. Whereas the word ‘used’ in the first part is ‘may’ the word used in the second part is ‘shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Courts and enables the Courts ‘at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely:

(1) to summon any person as a witness.

(2) to examine any person in attendance, though not summoned as a witnesses.

(3) to recall and re-examine any person already examined. The second part which is mandatory imposes an obligation on the Court:

(1) to summon and examine.

(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

9. The power conferred under S.311 Cr.P.C. should be invoked by the Court only in the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. The Court has wide power under S.311 Cr.P.C. to recall witnesses for re-examination or further examination, if it is necessary in the interest of justice, but the same has to be exercised after taking into co