O R D E R

This Crl.M.C. has been filed seeking to quash impugned Annexure - A3 order dated 18.09.2021 passed by the learned Special Judge, Fast Track, Pathanamthitta in Crl.M.P.No.200/2021 in S.C.No.348/2019.

2. According to the petitioner, the enmity between the petitioner and the defacto complainant could not be brought out during cross examination of PW1 - the mother of the victim. So he wanted to put specific question regarding the enemity to PW1. It is also contended that the previous lawyer who has appeared for the petitioner did not put such questions to the witness. It is also contended that the previous counsel doubtfully omitted to ask any of those questions explaining the circumstances under which PW1 initiated such a fabricated case against the petitioner. So stating all those facts he filed the present petition for recalling PW1 under Section 311 Cr.P.C. 3. Respondent – State filed serious objection contending that the witness was cross examined at length and he was represented by a counsel. The petitioner was also present before the court during that time. So the petition for recalling the witness is only to protract the matter and and he seeks for dismissal of the impugned order.

4. The learned Fast Track Special Judge (POCSO), Pathanamthitta specifically noted the arguments and dismissed the petition as per Annexure A3 order. Paragraph No.7 of the said order reads as follows:

“7. I examined the evidence already tendered on record, for the purpose of this petition. It is seen that the learned counsel for the accused has already cross examined PW1 at length. The cross examination of PW1 shows that the learned counsel already asked several questions to that witness to the effect that there was enimity between the accused and PW1. Questions were asked in cross examination with regard to an alleged complaint before the Police between the accused and PW1. Another question was asked to PWI to the effect that PW1 was in persistent quarrel with the accused. Questions were asked with regard to the mediations proposed by the neighbours also. The suggestion made to PW1 was that she had expelled the accused from the rental house. Yet another suggestion made in cross examination of PW1 was that a false case is caused to be registered against the accused due to enimity of PW1 for the accused was not prepared to file a joint petition. Questions were asked to PW2 and PW3( the victims) also in cross examination with regard to the differences in opinion and quarrel between the accused and PW1. Therefore there is no merits in the contention that there was omission in asking such questions to PW1 in cross examination. Having PW1 been cross examined on all these aspects, it is unnecessary to recall PW1.”

5. So it is revealed from the impugned order itself that questions were specifically put already to PW1 during cross examination with respect to the enemity prevailing in between the petitioner and his wife.

6. The court found that the evidence sought to be led is necessary for the just decision of the case or if it is necessary to find out the truth or if there is failure of justice without such evidence being adduced or due to inadvertence, the relevant material was not brought on record, the court can very well recall a witness. (See: Rajaram Prasad Yadav v. State of Bihar & Anr. [(2014) 4 SCC (Cri.) 256] and Rajendra Prasad v. Narcotic Cell [1999 (6) SCC 110]).

7. On going through the impugned order, I am of the view that learned Judge has passed an order after appreciating the facts and circumstances of the case and the present attempt of the petitioner is to recall the witness after appointing a new lawyer on his behalf. The point which he highlighted with regard to the omission of questions regarding the enemity between his wife and himself also has been put during cross examination. So I do not think that recalling of PW1 is necessary for a just decision of the case. Hence, Crl.M.C. is found to be devoid of any merit. Hence dismis