IMPORTANT POINT
The court held that Section 233 Cr.P.C. does not permit recalling prosecution witnesses, which can only be done under Section 311 Cr.P.C., emphasizing the necessity of timely cross-examination.

ORDER :

1. Petitioner - the 1st accused in S.C. No. 118/2018 of the Sessions Court, Ernakulam - seeks to recall Prosecution Witness Nos.112 and 183, who were examined as early as on 26.02.2021 and 10.09.2021 respectively. The application of the 1st accused in this regard under Section 311 Cr.P.C. was dismissed by the learned Sessions Judge, vide Annexure-A2. Being aggrieved by the same, the petitioner seeks to set aside Annexure-A2 Order and to allow Annexure-A1 application under Section 311 Cr.P.C.

2. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. Perused the records.

3. S.C. No. 118/2018 is the infamous case, where an actress was allegedly abducted and sexually assaulted by the accused persons, in a moving car. The offences alleged are under Section 120B, 109, 342, 366, 354, 354B, 357, 376D, 201, 212, read with Section 34 of the Penal Code and also Sections 66E and 66A of the Information Technology Act. Altogether, 261 witnesses were examined in the subject Sessions Case and Exts.P1 to P833 were marked on behalf of the prosecution. Exts.C1 to C68 were marked as Court Exhibits. MOs 1 to 142 were identified. Exts.D1 to D221 were marked on behalf of the defence. The prosecution evidence was closed on 13.09.2024. The accused were questioned under Section 313 Cr.P.C. whereafter, the case was posted for defence evidence. It is at that point of time, Annexure-A1 application was filed on 30.11.2024 by petitioner's counsel under Section 311 Cr.P.C. seeking to recall PWs. 112 and 183 of whom, the former was examined on 26.02.2021 and the latter, on 10.09.2021. Both PWs. 112 and 183 are expert witnesses, the former being a doctor, who collected samples for forensic examination; and the latter, the Assistant Director of the Forensic Science Laboratory. The specific ground urged was that the petitioner/A1 was in judicial custody during the course of trial and he was released only on 20.09.2024, wherefore, the learned counsel for the petitioner could not take proper instructions for cross-examining the said witnesses.

4. Before this Court, a legal point was raised to the effect that Section 233 Cr.P.C. clearly confers a right of the accused to recall and re-examine witnesses, who have already been examined. Learned counsel would emphasise on the expression “any witness” as employed in Section 233(3), which expression is not to be confined to witnesses, who are yet to be examined; but should extend to recalling witnesses already examined. According to the learned counsel, recalling PWs. 112 and 183 is essentially to enable the petitioner to set up his defence effectively. This Court will first deal with the above contention based on Section 233 Cr.P.C. Section 233 Cr.P.C. is extracted here-below:

“233. Entering upon defence:

(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.”

5. It goes without saying that the entire prosecution evidence should have been adduced before the stage envisaged should under Section 233 and Section 233 will operate only if the court finds, based on the prosecution evidence, that the accused is not liable to be acquitted under Section 232 Cr.P.C. Section 233 enjoins the accused person to enter on his defence and adduce any evidence he may have in support of such defence. Section 233(3) affords discretion to the Judge in the matter of issuance of process to compel the attendance of any witness or the production of any do