IMPORTANT POINT
The power to recall and re-examine a witness under Section 311 of Cr.P.C is essential for finding out the truth and obtaining proper proof for a just decision, especially when the witness's evidence is crucial and intimidation or coercion is suspected.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short) by the accused in Crime No.655 of 2023 of Kuttiyadi Police Station, Kozhikode, with a prayer to quash Annexure A5 order dated 14.05.2024 in C.M.P.No.156/2024 in S.C.No.1394/2023 on the files of Fast Track Special Judge, Nadapuram, where the prosecution alleges commission of offences punishable under Sections 376(2)(n), 450, 354 and 506 of the Indian Penal Code as well as under Sections 51, 5n, 6(1), 3(a) and 4(2) of the Protection of Children from Sexual Offences Act (‘POCSO Act’ for short).

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the entire case records in this matter.

3. It is argued by the learned counsel for the petitioner that the victim in this crime was examined as PW11 on 17.04.2024 and she turned hostile to the prosecution. Thereafter she was subjected to questioning by the learned Public Prosecutor but nothing extracted to support the prosecution. Later, on 03.05.2024, the learned Public Prosecutor filed Annexure-A3 petition under Section 311 of Cr.P.C to recall and re-examine PW11 on the ground that the victim reached the office of the learned Public Prosecutor and stated that she was coerced and threatened by her relatives not to disclose the details of the case, in accordance with statements she had given before the police during investigation, where the accused is none other than the uncle of the victim. According to the learned counsel for the petitioner, Annexure-A4 counter statement was filed by the petitioner and opposed the prayer for recall of PW11. But the learned Special Judge negatived the contentions in the counter statement and allowed the petition to recall PW11 for further examination. The learned counsel for the petitioner argued that such a course of action is impermissible and the same would be fatal to the interest of the accused. He has placed a decision of the Apex Court reported in [2005 KHC 1776 : 2005 (1) SCC 701 : 2005 SCC (Cri) 1712], Mishrilal & Ors. v. State of M.P. & Ors. to contend that once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given inconsistent statements before any other Court or forum subsequently.

4. Whereas it is submitted by the learned Public Prosecutor that since the accused in this crime is none other than the uncle of the victim, the relatives forced her to be hostile to the prosecution and she was aggrieved in the matter of failure to give what actually transpired in a case where serious offences are alleged to be committed. Therefore, the learned Special Judge rightly allowed the petition.

5. While addressing the contentions in Mishrilal & Ors. v. State of M.P. & Ors. (supra), the Supreme Court held that once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given inconsistent statements before any other Court or forum subsequently. But the said decision in no way curtails the power of the Court to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. Going by the order, the learned Special Judge relied on the decision reported in [(2006) 7 SCC 529], U.T. of Dadra and Nagar Haveli & Anr. v. Fatehsinh Mohansinh Chauhan, wherein in paragraph 15 held that, a conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a w