IMPORTANT POINT
The court affirmed that the discretion to recall witnesses for clarification is essential for ensuring justice in criminal proceedings.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short hereafter) and the petitioner is the sole accused in S.C.No. 450/2022 on the files of Special Court for the trial of offences under the Protection of Children from Sexual Offences Act (‘POCSO Act' for short), Perumbavoor. The petitioner assails the order in Crl. M.P. No. 274/2024 dated 13.08.2024 in the above case.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order impugned and relevant materials available.

3. Crl. M.P. No. 274/2024 is a petition filed under Section 311 of the Code of Criminal Procedure (‘Cr.P.C’ for short) by the prosecution to recall PW18, the Investigating Officer, to clarify and explain the documents marked on the side of the accused as Exts. X1 to X6, viz., general diary and weekly reports. Prosecution sought examination of PW18, after recalling him on the ground that such an exercise is necessary to clarify and explain Exts. X1 to X6 and to protect the interest of the prosecution.

4. The petitioner herein/accused strongly opposed the prayer and it was contended that as per Section 294 of Cr.P.C, Exts. X1 to X6 were tendered in evidence, as admitted by the prosecution and, therefore, the attempt of the prosecution to clarify/explain the said documents by recalling PW18, could not be allowed as the same would amount to filling up the lacuna in prosecution evidence.

5. The trial court addressed the combating contentions in tune with decision in Mishrilal and others v. State of Madhya Pradesh and Others, 2005 KHC 1776 and Vijayadas K.V. v. State of Kerala, 2017 (4) KHC 9 : 2017 (3) KLT SN 74 and finally allowed the petition as observed in paragraph 21 of the order, as extracted hereunder:

“21. As it is held in 2017 (4) KHC 91 (supra), trial of a case should be a search for the truth and this Court finds that the clarification of PW18 on the relevant aspects is absolutely necessary for finding out the truth involved and thereby to arrive at the just decision in the case. Consequently, it is found that the recalling of PW18 after re-opening the evidence for his further examination in the case is absolutely necessary and hence the present petition for the same shall be allowed. Resultantly, the petition is allowed and PW18 is allowed to be examined further and for that the evidence in the case is reopened.”

6. The learned counsel for the petitioner while attempting to upset the order impugned, fervently argued that recalling of PW18, in order to clarify and explain Exts.X1 to X6, should not have been allowed by the Special Court since those documents summoned by the accused were admitted by the prosecution and, therefore, no formal proof of the said documents is necessary. It is also submitted that recalling of PW18 would prejudice the right of the accused and the same is resemblance to allow the prosecution to fill up the lacuna in evidence.

7. The learned Public Prosecutor would submit that Exts.X1 to X6 documents should have been tendered in evidence by examining the author thereof and mistakenly the prosecutor admitted the same and the same got marked in evidence. Since clarification and explanation regarding the general diary and weekly reports produced from the custody of the SHO are necessary through the mouth of PW18, so as to ascertain the truth of the matter, taking note of the interest of the prosecution as well as the accused, the Special Court rightly allowed the petition and hence the impugned order is not liable to be interfered.

8. Having addressed the rival contentions, I have gone through the order, Section 294 of Cr.P.C and Section 330 of BNSS.

9. The questions to be considered are:

(1) What is the procedure to be followed when documents filed in Court either by the prosecution or by the accused under Section 294 of Cr.P.C or under Section 330 of BNSS?

(2) Is it mandatory to prove the documents filed in C