The court affirmed that the recall of witnesses for identification is crucial in criminal trials for achieving justice, even when faced with procedural delays.

JUDGMENT

Petitioners are accused 1, 3 and 4 respectively in S.C. No.

353 of 2015 pending before the Assistant Sessions Court, Kannur. They along with two others face allegations under Sections 143 , 147, 148, 452, 326, 427, 308, 395 read with Section 149 of the IPC and Sections 3 and 5 of the Explosive Substances Act .

2. Now the trial of the case is in progress. At that time, the Additional Public Prosecutor who is conducting the case filed Ext.P2 application purportedly under Section 311 of the Cr.P.C for recalling PW2 who was examined on 20.11.2019 for the purpose of identifying the weapon of offence. Going by Ext.P2, CW2 was examined as PW2 on 20.11.2019; he is the injured in the case. At that time the weapons used by the accused were not produced in Court and prosecution could not mark the same. According to the Prosecutor now the said weapons have been produced in Court by the Investigating Officer and therefore PW2 was sought to be recalled for the purpose of marking the same. Such an application was moved on 18.01.2020. Petitioners filed their objection.

According to them, the alleged incident had happened on 07.06.2009 and the scene mahazar was prepared on 08.06.2009. By the scene mahazar two instruments, one iron pipe and iron rod were recovered from the place of occurrence. Under Section 102 of the Cr.P.C. such a property seized by the police shall forthwith be reported to the Magistrate. But that was not done. Moreover, the police officer has to file report under Section 173 of the Cr.P.C. with entire documents and material objects. Here that also was not done. The case stands committed and reached before the Sessions Court; after the committal, the Magistrate has no jurisdiction to entertain application in a crime committed to the Court of Session. The property clerk has no authority to entertain any property without jurisdiction and has no authority to transfer the same to the Sessions Court. According to them, the list of property and property produced by the the Prosecution are products of fabrication to fill up the lacuna in evidence and therefore there is no legal provision to entertain the same. Moreover, prosecution has no case that any such property was identified by the witnesses during the course of investigation. Thus they strongly opposed the application for recalling the witness.

3. The learned Assistant Sessions Judge by Ext.P4 order though concurred with the points raised in the objection that there is serious doubt about the genuineness of the prosecution case to the effect that the material objects sought to be tendered in evidence were the weapons used in the commission of the crime. Moreover, there was also no explanation for the delay in producing the same. Inspite of the same, the learned Judge observed that such an objection is premature and opportunity should be offered to the prosecution to offer their explanation for the delay in producing the material object etc. On that basis the objections were overruled and the application under Section 311 of the Cr.P.C. was allowed. Now the petitioners have moved this Court under Article 227 of the Constitution of India for quashing the Ext.P4 order of the Assistant Sessions Judge dated 23rd January, 2020.

4. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

5. There is no serious dispute on the facts. The petitioners are accused Nos. 1, 3 and 4 in Crime No. 302 of 2009 of Kannur Town police station which was registered alleging the above sated offences. The crime was registered on the strength of the First Information Statement given by one Rijil Makkutty alleging that himself and one Kamaljith were attacked and injured by the accused persons after breaking open the house where they were sleeping and attacked and injured them with an iron rod and iron pipe. They had caused grievous hurt on the leg of Kamaljith who was attacked with iron rod; they also aimed on the head of the informant which could be pre