The court has the power to recall a witness under Section 311 CrPC, but it can be exercised only if it is essential for the just decision of the case and not to fill the lacuna in the defence case.

Dated this the 9th day of July, 2024 This petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘ BNSS ’ for short), is at the instance of the accused in S.C.No.74/2021 on the files of the Fast Track Special Court for trial cases under the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘the POCSO Act’) cases, Pathanamthitta, challenging Annexure A3 order, whereby the learned Sessions Judge dismissed Annexure A2 petition filed by the petitioner herein to recall PW2 and PW9, who are mahazar witness as well as the Investigating Officer.

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

3.Though it is argued by the learned counsel for the petitioner that PW2 is a crucial witness in this case, since she had given evidence during her earlier examination that she was a usual visitor of the house/the place of occurrence, PW2 is to be recalled for the purpose of cross-examining her further and so also to further cross-examine PW9/the Investigating Officer, it is discernible from Paragraph No.2 of the affidavit in support of the petition filed by the petitioner that now the entire evidence and arguments over and the case is at the stage of delivering judgment. According to the learned counsel for the petitioner, and as could be discernible from paragraph No.2 is that PW2 is a regular visitor at the house of the victim. But her statement under Section 161 Cr.P.C. was not recorded and PW2 was made only as a mahazar witness. According to the learned counsel for the petitioner, PW2 is a competent person to speak about the affairs in between 5.30 pm and 8.30 pm on 27.10.2022 and for which PW2 shall be recalled.

4.The learned counsel for the petitioner has placed the decision of the Apex Court in Manju Devi v. State of Rajasthan and Ors. , reported in AIR 2019 SC 1976 , referring to paragraph No.9.1 to contend that in order to ensure just decision in the case, power under Section 311 of Cr.P.C can be invoked. The learned counsel for the petitioner also placed the decision of this Court in Manu Dev. v. XXXX reported in 2023 (2) KHC 41 with reference to paragraph No.19 to buttress the said point.

5.To be on the crux of this matter, PW2 was cited as a mahazar witness and she was examined on that point and the learned counsel for the accused cross-examined her. Now the trial finished, arguments also finished. What remains is pronouncement of judgment. At this juncture, the petitioner filed the present petition, with a prayer to recall PW2-mahazar witness to speak about defence case by cross-examining her. The same is not legally permissible. The learned Special Judge also observed that PW2 never stated his presence at the time of occurrence. Therefore, the learned Special Judge rightly rejected the prayer, as per order in Annexure A3, detailing the entire history of trial and the operative portion of the impugned order is as under:

“The learned Prosecutor would also concede that nothing has brought out from PW2 about his presence in the house of this petitioner at the relevant time. On hearing the case, on 24.06.2024 it was adjourned to 01.07.2024 for further argument. If any but on the said date, the petitioner has come up with this petition. Admittedly the facts before me would establish that this petition is filed with malafide intention only to fill up the lacuna which was pointed out to him by this Court while making argument. Considering the circumstances in which this petition is filed, in my opinion, the recalling of PW2 for filling such lacuna on the side of the defence cannot be considered as a ground for just decision of the case since sec.311 Cr.P.C. empowers the Court to recall and re-examining a witness already examined appears to be essential to the just decision of the case.”

Therefore, the impugned order does not require any interference since the same is perfectly justif