2024/KER/33678 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 20^TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946 CRL.MC NO. 3840 OF 2024 CRIME NO.329/2022 OF ENATH POLICE STATION, PATHANAMTHITTA AGAINST THE ORDER DATED 17.04.2024 IN CMP NO.66 OF 2024 IN SC NO.63 OF 2023 OF FAST TRACK SPECIAL COURT, ADOOR PETITIONER/1ST ACCUSED:

JERIN JOY AGED 22 YEARS S/O JOY, PANTHAPLAVIL THEKKARA HOUSE, EETTIVILA, THALACHIRA P.O, VETTIKAVALA VILLAGE, KOTTARAKARA THALUK, KOLLAM DISTRICT, PIN - 691538 BY ADVS.

ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN KAMAL ROY M.

RESPONDENTS/RESPONDENTS/STATE & DEFACTO COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - THROUGH THE INSPECTOR OF POLICE, ENATHU POLICE STATION, PIN - 682031

2 XXXXX AGED XXXXX YEARS XXXXX SR PP - RENJITH GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

20.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

“C.R”

ORDER

Dated this the 20^th day of May, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash Annexure A6 order in Crl.M.P. No.66/2024 in S.C. No.63/2023 pending before the Fast Track Special Court for Protection of Children from Sexual Offences Act (hereinafter referred as ‘POCSO Act’ for short) Cases, Adoor.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the order impugned and judgment placed by the learned counsel for the petitioner, viz; Vineeth v. State of Kerala [2022 KHC OnLine 8065 : 2022 KHC 8065 : 2022 KER 71422 : 2022 LiveLaw (Ker) 656 : 2023 (1) KLT 135 : 2022 (6) KLT OnLine

1052].

3. It is argued by the learned counsel for the petitioner that, few questions which were material, omitted to be asked during cross-examination of PW1 sought to be put to PW1 by recalling her. The prayer in Crl.M.P. No.66/2024 is that, those six questions permitted to be put to PW1, by recalling PW1. The decision reported in Vineeth’s case (supra) has been placed to contend that the bar under Section 33(5) of the POCSO Act is not absolute and in an appropriate case, if it is necessary for the just decision of the case, of course the child witness could be recalled. In paragraph No.6 of the above decision, this Court held as under:

“6. S.311 of CrPC gives wide power to the Magistrate to recall any witness already examined or to summon any additional witness at any stage of the proceedings for the just decision of the case. The bar under S.33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, of course the child witness can be recalled. Admittedly when PW4 and PW6 were examined, the petitioner did not receive the 164 statement. The petitioner has every right to contradict the witness with the 164 statement. Hence, I am of the view that recalling of the witnesses is necessary for the just decision of the case. In the light of the above findings, Annexure - A2 stands hereby set aside. Crl.M.P.No.1392 of 2022 stands allowed. This Crl.M.C is disposed of.”

4. The learned Public Prosecutor opposed the prayer to recall PW1 on the ground that the attempt of the petitioner is to fill up the lacuna in evidence after completion of trial and the same is not legally permissible.

5. The legal position laid down in Vineeth’s case (supra) is correct.

6. In this connection, it is worthwhile to note that as per Section 33(5) of the POCSO Act, it has been provided that the Special Court shall ensure that the child is not recalled repeatedly to testify in the court. This provision to be read and understood to hold that repeated examination of the child shall be avoided and this provision shall not be interpreted to hold that recalling of the child witness is prohibited in toto. Therefore, bar under Section 33(5) of the POCSO Act is not absolute and in an appropriate case, in order to meet the ends of justice, relaxation of the