ORDER

Dated this the 14th day of August, 2024 This Criminal Miscellaneous Case has been filed under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 to call for the records, which led to passing of Annexure-A7 order, dated 20.07.2024 in C.M.P. No.442/2024 in S.C.No.195/2019 of the Court of the Fat Track Special Judge, Varkala and set aside the same by allowing CMP.

2. Petitioner is the sole accused in S.C.No.195/2019 on the files of Special Court for trial of offences under the Protection of Children from Sexual Offences Act, ('POCSO Act' for short hereafter)Varkala.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. I have perused the materials placed along with this petition with particular reference to Annexure-A5, the Copy of 311 petition (CMP No.442 of 2024) and Annexure -A7 order thereof.

4. In this case the petitioner is alleged to have committed offences punishable under Sections 354A, 506(i),450, 376 of Indian Penal Code, 1860 and Section 3(a) r/w 4, 5(l) r/w 6 of POCSO Act and 3(1)(w)(i) and 3(2)(v) of SC/ST (POA) Act. The trial court proceeded trial and the entire evidence closed and the matter now stands for hearing both sides.

5. It is submitted by the learned counsel for the petitioner that when PW1 was examined Exts.D1 to D1(e) contradictions were marked. So also when PW2 was examined Ext.D2 contradiction also marked. But at the time when the persons who recorded the statement of PW1 and PW2 were examined as PW10 and PW16 , the contradictions not pointed out before them to prove the same in the manner known to law. Since it was noticed after completion of evidence Annexure -A5 petition filed seeking to recall PW10 and PW16, according to the learned counsel for the petitioner, the trial court ought to have allowed Annexure-A5 and therefore Annexure -A7 order disallowing the said prayer is liable to be interfered to facilitate proper trial to the accused.

6. While opposing interference in Annexure-A7 order the learned Public Prosecutor would submit that Annexure-A5 petition itself was filed at a much belated stage on 9.05.2024 even though PW1 was examined as early on 10.11.2022. That apart PW10 and PW16 were cross examined on 10.03.2023 and 4.10.2023 respectively. Therefore, the petition filed at a belated stage is not liable to be allowed. It is also pointed out by the learned Public Prosecutor that even otherwise the purpose for which PWs 10 and 16 were sought to be re-called is to supply omission which amounts to filling up of lacuna in evidence. Therefore, the same could not be allowed.

7. Insofar as the law regarding recalling of witnesses is concerned, the law is well settled in the decision reported in [2024 KHC 15 : 2024 KLT OnLine 1399], XXXX v. State of Kerala &

anr. with reference to paragraph Nos.8 to 10 as under:

“8. Section 311 manifestly in 2 parts. Whereas the word `used’ in the first part is `may’ the word used in the second part is `shall’. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Courts and enables the Courts `at any stage of enquiry, trial or other proceedings’ under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witnesses, or (3) to recall and re-examine any person already examined.

The second part which is mandatory imposes an obligation on the Court-- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

9. The power conferred under S.311 Cr.P.C should be invoked by the Court only in the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. The Court has wide power under S.311 Cr.P.C to recall witnesses for re-examination or further examination, if it is necessary in the interest of justice, but the