IMPORTANT POINT
The court established that the mere allegation of a witness being tutored is insufficient to justify recalling that witness, and the discretionary power under Section 311 of the Cr.P.C. must be exercised judiciously and only when necessary for a just decision.

ORDER :

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioner, who is the accused in Crime No.768/2021 of Sooranad police station, Kollam Rural, now pending as S.C.No.210/2022 on the files of the Fast Track Special Court (PoCSO), Karunagappally and the prayers herein are as under:

I. Call for the records pursuant to Annexure A7 order in Crl.M.P.No.347 of 2023 in SC No.210 of 2022 on the file of the Court of the Fast Track Special Judge, Karunagappally and to quash the same and all proceedings pursuant thereto;

II. To direct the Fast Track Special Judge, Karungappally to consider Annexure A13 petition before proceedings further in SC No.210 of 2022;

III. Dispense with filing of the translation of vernacular documents produced by the petitioners in this case; and

IV. Such other relief in favour of the petitioners as this Hon’ble Court may deem fit to grant.

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

3. The petitioner herein challenges Annexure A7 order, whereby, the learned Special Judge, Fast Track Special Court, Karunagappally, dismissed the petition filed under Section 311 of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter), by the petitioner herein.

4. The learned counsel for the petitioner zealously argued to convince this Court that, there are omissions and contradictions in the evidence of PW1 and in the 164 statement. Therefore, in order to provide an opportunity to cross examine PW1 again, recalling of PW1 is liable to be allowed. Consequently, in order to prove the contradictions anticipating from PW1, PW25 and PW27 also to be recalled. She also submitted that, the learned Special Judge not specified reasons while dismissing the petition filed under Section 311 of the Cr.P.C., and on that ground also, the order would require interference. The learned counsel also submitted that, earlier, Annexure A7 order was challenged before this Court in Crl.M.C.No.7331/2023 and this Court, even though not interfered with Annexure A7 order, provided opportunity to challenge the same, if the new legal aid counsel also wants to pursue the petition filed under Section 311 of the Cr.P.C. Now, new legal aid counsel is appointed, in view of the liberty given in Crl.M.C.No.7331/2023.

5. Zealously opposing the above prayer, it is submitted by the learned Public Prosecutor that, no valid reasons stated in Annexure A5 petition to recall PW1. It is also submitted that, the accused was granted bail in this crime and while enjoying bail and when this case was posted for examination of witnesses, particularly, PW1, the accused trespassed upon the house of PW1 and assaulted the parents of PW1 and thereafter, he absconded and for which, crime was registered alleging commission of offences punishable under various Sections including one under Section 307 of the Indian Penal Code (for short, 'the IPC' hereinafter). Again, he attacked the brother of PW1, for which, another crime, alleging offence punishable under Section 307 of the IPC also was registered. It is submitted by the learned Public Prosecutor that, now, PW1's life also is under threat, at the instance of the accused and fatality being avoided, since he has been in custody after involvement of two more crimes. Accordingly, the learned Public Prosecutor submitted that, no necessity to recall PW1 and consequently, PW25 and PW27 in the instant case and therefore, Annexure A7 order only to be confirmed. The learned Public Prosecutor also pointed out that, there is restriction under Section 33(5) of the PoCSO Act in the matter of recalling a child witness repeatedly.

6. In this matter, in order to ascertain whether petition filed under Section 311 of the Cr.P.C., at the instance of the petitioner/accused, deserves to be considered on merits, I have perused the grounds stated in paragraph No.3 of Annexure A5 petition and the same reads