Witness recall applications must be timely and valid; counsel's incompetence alone doesn't justify reopening proceedings.

COMMON ORDER

These two Crl.M.Cs are connected and therefore I am disposing of these Crl.M.Cs by a common order.

2. The petitioners in Crl.M.C.No.7855/2023 are accused nos.14 and 15 in S.C.No.770/2019 on the file of Special Judge, SPE/CBI, Thiruvananthapuram. The petitioner in Crl.M.C.No.8383/2023 is the 17th accused in the same case.

3. The petitioners in Crl.M.C.No.7855/2023 filed Crl.M.P.No.271/2023 to further cross examine PWs.2 and 4 under section 311 Cr.P.C. They are facing charge under sections 143, 147, 148, 450, 307, 506(ii), 302 r/w 149 of the Indian Penal Code and section 27 of the Arms Act. The investigation was completed by the Central Bureau of Investigation. The trial in the case was started from 01.07.2022 onwards and PW1, PW2 and PW4 were examined. The case of the petitioners in these cases is that the senior counsel who was appearing for the petitioners were suffering from many ailments and hence could not effectively cross examine PWs.2 and PW4 with respect to their earlier statement to the investigating agency. It is further submitted that PW4 the wife of the deceased filed various complaint against the investigation done by the local police to the Government, DGP and other high officials but the advocate who was previously present in the case did not ask anything about these matters is the submission. It was also submitted that, no question was put to the witness about the enmity of the witness towards the petitioners. It is submitted that, this happened because of the illness of the previous advocate. Subsequently, the lawyer relinquished the vakkalath and the present advocate was appointed. Thereafter, it came to know about the omissions and hence an application was filed to recall PW2 and PW4.

4. The petitioner in Crl.M.C.No.8383/2023 filed Crl.M.P.Nos.316/2023 and 317/2023 under section 311 Cr.P.C and under section 91 Cr.P.C to recall PW1 and call for the records from the Vigilance Department, KSRTC Thiruvananthapuram. It is the case of the petitioner in this application that PW1 had given a reply to a charge memo given from the KSRTC that he is innocent of allegation. PW1 was examined as an approver. When PW1 was examined before the court, certain questions put to him after showing the photocopy of the reply given by him to the charge memo. It is submitted that PW1 admitted his signature but the document was not marked as the Prosecutor opposed the marking of photocopy. It is also submitted that now they have got information that the original of reply to the charge memo is in the custody of vigilance, KSRTC, Thiruvananthapuram and the prayer is to call for the same and recall PW1 to prove the reply submitted to the charge memo in the departmental enquiry.

5. The petitions filed by the petitioners in these Crl.M.Cs were considered by the Special Court in detail and dismissed the same.

6. As far as the contention of the petitioners in Crl.M.C.

No.7855/2023, it is observed in the impugned order that the petitioners were represented by a Senior Counsel of the Bar. The trial court found that the petitioners had failed to establish that the earlier counsel was ill and therefore, he could not effectively cross-examine the witnesses. Hence the prayer for recalling the request was rejected. As far as the second ground for recalling PW1 and PW4 regarding the omission to put questions to PW4 and the wife of the deceased who filed various complaints against the investigation done by the Police to the Government, DGP and other higher officials, the learned Judge considered the matter in detail and concluded that the previous statement made to the investigating officer or any authority legally competent to investigate the fact alone can be used to contradict the witness. I do not want to express any opinion about the same. But the learned Judge clearly stated that there is considerable delay in filing the application. PW2 was examined from 05.07.2022 to 07.07.2022 and PW4 was examined on 11.07.2022. The 311 petition was