Witness recall under Section 311 Cr.P.C. is discretionary and must serve the interest of justice, not merely fill evidentiary gaps.

ORDER

Dated this the 30th day of August, 2024 This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023, by the petitioner, who is the 1st accused in Crime No.180/2015 of Vanitha Police Station, Kozhikode, now pending as C.C.No.871/2015 on the files of the Judicial First Class Magistrate Court, Payyoli, challenging Annexure B and Annexure C orders passed by the Judicial First Class Magistrate Court, Payyoli and the Sessions Court, Kozhikode, respectively.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail.

3. Here, the prosecution alleges commission of offences punishable under Sections 498A and 406 r/w Section 34 of the Indian Penal Code , by the accused.

4. Prosecution evidence completed in this matter, as earlier. PW1 was examined on 24.4.2018. Thereafter, in M.C.No.30/2015, filed under Section 12 of the Protection of Women from Domestic Violence Act , 2005, order was delivered on 9.3.2021. At this juncture, the accused moved an application to recall PW1 to cross examine her with the aid of order in M.C.No.30/2015, dated 9.3.2021 and also to recall PW2 and PW3, who were cross examined on 3.12.2022 and 24.3.2023 respectively, to fill up the omissions. Consequently, PW7, the Investigating Officer also was sought to be re-called.

5. The prosecution side opposed the petition mainly on the ground that the order in M.C.No.30/2015 is an irrelevant document and questioning PW1 regarding the said document, the petition under Section 311 of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter) is not liable to be allowed. The other prayers also opposed on the ground that the attempt is to fill up the lacuna in evidence.

6. As observed in paragraph No.5 of Annexure B order, the learned Magistrate dismissed the application and the same reads as under:

5. On perusal of the available materials on records, it is understood that PW1 and PW7 were cross examined by the counsel appearing for the accused long back. Now, the reason stated for recalling PW1 is that the order in MC.30/2015 was passed on 09.03.2021 and questions with regard to the said order could not be put to PW1. Similarly, reason stated for recalling PW7 is that some omissions were brought out in the cross examination of PW2 and PW3 and the said omissions can be proved only through PW7, who is the investigating officer. This court is of the opinion that the instant application filed at a belated stage is only for the purpose of filling the lacuna. Allowing this application at this stage would only lead to unending litigation and would protract the trial. Hence, I am not inclined to allow the petition.

In the result, the petition is dismissed.

7. Though revision filed as per Annexure C order, the learned Sessions Judge dismissed the same, holding that, dismissal of application under Section 311 of the Cr.P.C. is an interlocutory order coming under Section 397(2) of the Cr.P.C. and therefore, revision, challenging the said order, is not maintainable.

8. It is submitted by the learned counsel for the petitioner that the cruelty deposed by PW1 during her examination on 24.4.2018, not alleged in M.C.No.30/2015 and therefore, PW1 is to be recalled for questioning her further on the basis of order in M.C.No.30/2015, dated 9.3.2021. The learned counsel also pressed for recalling of PW2, PW3 and PW7.

9. The learned Public Prosecutor opposed the same, since such a course of action is absolutely not necessary.

10. In the decision in xxxxx v. State of Kerala reported in [2024 (3) KHC 15 : 2024 KHC OnLine 295 : 2024 KER 25575 : 2024 KLT OnLine 1399], this Court extensively considered the impact of essentials to exercise power under Section 311 of Cr.P.C. and the 1st and 2nd parts of the Section in detail. In paragraphs 8 to 11, this Court observed 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