Incompetence of previous counsel does not warrant recalling witnesses without sufficient grounds under established law.

O R D E R

Annexure-A3 order passed by the Judicial First Class Magistrate Court-I, Kothamangalam, in CMP No.5089/2024 in M.C.No.22/2022 is under challenge in this petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (in short, ‘ BNSS ’). As per the above order, the learned Magistrate dismissed the application of the petitioner, who is the respondent in that M.C., filed under the provisions of the Protection of Women from Domestic Violence Act , 2005, to recall PW1 for further cross-examination. The reason stated by the learned Magistrate is that, other than a bald statement that some material facts were omitted to be asked to PW1 during cross-examination, nothing had been there in the petition to show the requirements for further examination of that witness. The learned Magistrate quoted the dictum laid down by this Court in Bibin Sabu @ Abi v. State of Kerala [ 2024 (4) KHC 681 ] for the dismissal of the above petition.

2. In the present petition, the petitioner would contend that the reason for re-opening the case for further evidence was argued, but it was not mentioned in the petition since it should not be understood by the other side, which will equip them.

3. It is further stated in paragraph No.3 of the statement of facts in this Crl.M.C. that although the then counsel conducted cross-examination on so many facts, there was no clarity regarding the particular share of parties in the property concerned, and that part was omitted to be put during cross-examination. Another reason stated in this Crl.M.C. to assail the order of the learned Magistrate is that the counsel who conducted the cross-examination, omitted to corroborate material facts and events, which lead to a miscarriage of justice.

4. Heard the learned counsel for the petitioner.

5. InA.G v. Shiv Kumar Yadav and Another [2015 KHC 4602], it has been held by the Apex Court that the incompetence of the defence counsel in cross-examining the witness, is not a reason for the recall of the witness under Section 311 of the Code of Criminal Procedure , 1973 (in short, ‘Cr.PC’). Following the aforesaid decision, a learned Single Judge of this Court has held inParkson Estate & Industries, Cochin and Another v. M/s. Trinity Trading, Kochi and Another [2016 (1) KHC 278] that merely because certain questions were not put to the witness by the earlier counsel, and the subsequent counsel found that as a lacuna in the conduct of the case which, according to him, is likely to affect the defence,it cannot be said as a valid ground for recalling the witnesses already examined.

6. Having regard to the settled position of law in the above regard, the prayer in this petition to recall PW1 in the proceedings before the learned Magistrate, cannot be entertained. That apart, the reason stated by the learned Magistrate that the application did not contain the material particulars warranting the exercise of powers under Section 311 Cr.PC, is also well founded. Thus, it has to be concluded that the present petition filed under Section 528 of the BNSS challenging the impugned order of the learned Magistrate, is prima facie not maintainable.

In the result, the petition is hereby dismissed.