ORDER

Petitioner is the accused in C.C. No.1304/2015 on the file of the Judicial First Class Magistrate's Court, Chavakkad where trial is underway. Some of the witnesses have already been examined. When PW2 was examined, some contradictions in his testimony wanted to be brought out in evidence; when his attention was drawn to the statement recorded under Section 161 of the Code of Criminal Procedure, he reported to have stated not remembering to have given such a statement to the police. But the court refused to mark those statements. Thereafter, an application was filed under Section 311 of the Cr.P.C. for recalling the witness for marking those statements. The Magistrate has dismissed the application on the premise that, that would amount to review of the order for which the court has no power. According to the learned counsel for the petitioner, in order to elicit the contradictions in the testimony of PW2, those statements have to be marked, for which PW2 has to be recalled; if he is not allowed to be recalled, that would cause considerable hardship to the accused and therefore, Annexure A2 order of the Magistrate is sought to be quashed.

2. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor.

3. According to the learned counsel for the petitioner, such a matter seeking to recall the witness will not amount to review and the learned Magistrate ought to have considered the application for recalling PW2. In connection with this, the learned counsel relied on the decision reported in State through CBI/ACB, Hyderabad A.P. v. Dharmana Prased Rao [2016 KHC 3366]. She also relied on the decision reported in State of Kerala v. Thomas [2005 KHC 1823]. It is evident from Annexure A1 application and Annexure A2 order that when PW2 was cross examined, his attention was drawn to the previous statement recorded under Section 161 of the Cr.P.C. and he had answered that he is not remembering the same. Still such portions were not marked for the defence. The defence counsel wanted to mark it. But the court disallowed it.

Relying on the decision reported in Thomas case (cited supra), Annexure A1 application was filed under Section 311 of the Cr.P.C. for recalling the witness. From paragraph 4 of the order, it is clear that the court also is convinced that such a marking is essential, when a witness deposes that he does not remember to have spoken such a matter to the Investigating Officer. But the learned Magistrate was not inclined to allow the application for recalling the witness on the premise that it would amount to review.

4. For two reasons, Annexure A2 order cannot sustain.

Firstly, the marking of the relevant portions of the previous statement of the witness was declined on a misconception of law, on the premise that the learned Magistrate was of the opinion that no authorities are there. There are more authorities to be cited which enables the court to mark such portions of the previous statement, if the witness deposes that he does not remember to have stated such an aspect before the Investigating Officer.

5. Secondly, it will not amount to review as there is no legal impediment under Section 362 of the Cr.P.C.

6. Moreover, the power under Section 311 of the Cr.P.C. is very wide and a witness can be recalled and re- examined at any stage before the judgment is pronounced, if it is essential for the just decision of the case. I have no doubt that marking of such a statement of the witness is essential for the just decision of the case and therefore, Annexure A2 order is quashed and the learned Judicial First Class Magistrate, Chavakkad is directed to recall and re-examine PW2.

The Crl. M.C. is allowed as above.

Sd/-

K.HARIPAL

JUDGE

DCS/25.03.2022

APPENDIX PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE PETITION CRL.M.P. 831 OF

2020 IN C.C NO.1304 OF 2015 ANNEXURE A2 CERTIFIED COPY OF THE ORDER CRL.M.P. 831 OF

2020 IN C.C NO.1304 OF 2015 DATED 17.1.2022