IMPORTANT POINT
The court upheld the trial court's decision to deny the recall of a child witness, emphasizing the need for effective prior cross-examination and adherence to statutory restrictions under the POCSO Act.

ORDER :

Order dated 05.10.2024 in Crl.M.P. No.619/2014 in S.C.No.101/2023 pending before the Special Court under the Protection of Children from Sexual Offences Act (for short 'POCSO Act' hereinafter), Thalassery is put under challenge by the accused in this Crl.M.C. filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023.

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

3. Precisely, in this case, the petitioner who alleged to have committed offences punishable under Section 354 of the Indian Penal Code as well as under Section 10 read with Section 9(l), (m)and (n) of POCSO Act was tried by the trial court. PW1 to PW13 were examined. Thereafter, the petitioner filed Crl.M.P.No.619/2014 in S.C.No.101/2023 and the copy of the same is Annexure AVI, wherein it is contended that at the time of cross examination of PW1/Victim, the counsel for the petitioner/accused was given instruction that the case was settled.

But during chief-examination, the victim gave evidence in support of the prosecution case. It is contended that as no instructions were given to cross examine the victim, since the case was compromised, the counsel for the petitioner/accused could not cross-examine the victim/PW1 effectively. Hence, this petition to recall PW1/victim was lodged to cross examine PW1 further.

4. The prosecution side opposed the same on the ground that the attempt was to fill up the lacuna in evidence after effectively cross examining PW1 and to efface the evidence already given by PW1.

5. The learned Special Judge addressed the contentions, examined the evidence of PW1, PW2 and PW13 and found that PW1 supported the prosecution in her evidence before the court and she was effectively cross-examined. Thereafter, the accused settled the matter with the parents of the victim, and thereby her parents PW2 and PW13 did not support the prosecution case. So the accused wanted to recall PW1 to get the evidence contradicted. Finding so, the petition was dismissed.

6. The learned counsel for the petitioner, while strongly canvassing the prayer to recall of PW1, placed a decision of the Apex Court reported in Rajaram Prasad Yadav v. State of Bihar and Another [2013 KHC 4513], wherein it has been held that a conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness”, and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summon