ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash Annexure.A4 common order dated 20.03.2024 in C.M.P. Nos.540/2024, 541/2024 and 542/2024 in S.C. No.771/2019 on the files of the Special Court for the trial of Protection of Children From Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short] cases (Additional Sessions Court), Ernakulam.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the relevant materials available.

3. In this matter, the prosecution allegation is that the 1st accused forcefully hit the head of a three year old boy, on the wall, resulting in internal bleeding and the same caused death of the child. Accordingly, the 1st accused/1st petitioner alleged to have committed offences punishable under Sections 302, 201 read with 34 of IPC as well as under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 [hereinafter referred as ‘JJ Act’ for short]. The allegation against the 2nd accused is that he gave false information about the crime with intention to screen the 1st accused from legal punishment and thereby committed offences punishable under Sections 118, 201 read with 34 of IPC as well as Section 75 of the JJ Act.

4. In this matter, the learned Special Judge proceed trial after completing pre-trial formalities. PW1 to PW22 were examined and Exts.P1 to P53 were marked (though in the impugned order documents wrongly shown as Annexures.A1 to A53). After the examination of PW22 on 16.03.2024, the prosecution filed three petitions viz. C.M.P. No. 540, 541 and 542 of 2024. The sum and substance of the petitions are as under:

1) CMP No.540 of 2024 under Section 311 of the Code to recall PW.1 Dr.Nalanda Jayadev, Consultant in Forensic Medicine, Rajagiri Hospital.

2) CMP No.541 of 2024 under Section 230 of the Code to issue summons to Dr.Sumana B. Pallegar, Neuro Surgeon, Rajagiri Hospital to be examined as a witness, and

3) CMP No.542 of 2024 under Section 91 of the Code to issue Summons to PW.1 to produce treatment records of the deceased child.

5. The petitioners herein filed objections and resisted the petitions. According to the petitioners, the attempt of the prosecution is to fill up the lacuna in evidence and the petitions were filed without explaining the inordinate delay in filing the petitions. The trial court appraised contentions and referred decisions of the Apex Court reported in [AIR 2023 SC 1346] Balu Sudam Khalde v. State of Maharashtra and decisions of this Court reported in Monson M.C. @ Monson Mavungal v State of Kerala [2023 KHC 9077], Sebastian v. Food Inspector [1987 (1) KLT 130] and Nanda Gopan v. State of Kerala [2014 (4) KHC 435], allowed the petitions for the reasons stated in paragraph Nos.11 and 12 of the order, as under:

11. The trial has not crossed the stage of prosecution evidence. The accused themselves have consistently made suggestions to the witnesses that the child died due to the negligence in treatment. In such circumstances, the accused will not be put to any prejudice if the applications are allowed. Even though the additional witness was not part of the original witness list, his examination is not to provide a new case for the prosecution. It is true that there is no previous statement of the accused. However, it is settled law that a witness can be examined by the Court invoking Section 311 even without his previous statement. The court is also having power to receive any document which was not seized by the police in the course of the investigation. (See Nanda Gopalan v. State of Kerala 2014 (4) KHC 435).

12. Having found the recalling of PW.1 and examination of additional witness are essential for the just decision of the case, and that the accused will not be put to prejudice by the same, I allow the petitions as follows.

a. CMP No.540 of 2024, is allowed. PW.1 is recalled and directed to be present along with the treatment rec