The court emphasized that witness recall must be justified by necessity for a just decision, particularly protecting vulnerable witnesses from indiscriminate cross-examination.

O R D E R

The first accused in S.C.No.588/2020 on the files of the Fast Track Special Court, Tirur has filed this petition under section 528 Bharatiya Nagarik Suraksha Sanhita, 2023, aggrieved by the refusal of the said court to reopen the evidence in that case for the further cross-examination of the victim child who was examined as PW2. The offences alleged in that case are under Sections 342, 367 and 377 IPC, and Sections 3(c), 4, 11(vi) & 12 of the Protection of Children from Sexual Offences Act, 2012 (stated hereafter as ‘the Act’ for the sake of convenience) and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

2. At a time when the said case stood posted for hearing, after completion of prosecution and defence evidence, the petitioner had moved an application to reopen the evidence for recalling and further cross-examine PW2. The reason stated was that, after a thorough study of the evidence adduced by the prosecution as well as the defence witnesses, it was found that some more answers are to be collected from PW2 - the victim. The learned Special Judge dismissed the above petition stating the reason that the contents of that petition were insufficient to know the purpose of recalling the witness and hence it was not possible to ascertain whether the recall of PW2 was necessary for the just decision of the case.

3. In the present petition, the petitioner would contend that the recall of PW2 for further cross-examination was necessitated in view of the evidence adduced by DW1 and DW2 which disclosed an altercation between the parties which occurred during a football match, and the amicable settlement of that dispute at the instance of DW2, the Panchayat President.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. Section 311 of the Code of Criminal Procedure reads as follows:

“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

6. As per the first part of the aforesaid Section, the Court may summon and examine any person as the witness or examine any person who is in attendance even though he was not summoned as a witness, or recall and re-examine any person already examined. The second portion of the aforesaid Section envisages that the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. While it is optional for the Court under the first portion of the said Section to summon and examine any witness or recall and re-examine any witness already examined, the second portion is somewhat mandatory in nature since it is incumbent upon the court to examine or recall and re-examine such persons if his evidence appears to be essential for the just decision of the case. It is well settled that the powers under Section 311 Cr.P.C cannot be exercised for every drop of the hat. Unless there are valid and sufficient grounds for ordering the examination or recall and re-examination of the witnesses concerned, the Courts are to be loath in resorting to the aforesaid procedure envisaged under Section 311 Cr.P.C.

7. In the case on hand, the witness sought to be recalled for further cross-examination is none other than the victim child who had to suffer the unnatural offence of penetrative sexual assault allegedly committed by the petitioner. As regards the examin