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HIGH COURT OF KERALA
Kauser Edappagath, J
BABU – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC/5548/2022
Recall - Criminal Procedure - Cr.P.C. Section 311 - The court permits witness recall for justice but prohibits it to fill evidential gaps. Dismissed petition to recall due to vague reasoning and prior lengthy cross-examination.
Fact of the Case:
The petitioner, accused under the PoCSO Act and IPC, sought to recall a witness post-examination citing oversight in questioning to prove innocence. The lower court dismissed the request as vague and unnecessary.
Issues: Whether the request to recall a witness under Section 311 of the Cr.P.C. was valid given the circumstances presented.
Ratio Decidendi: The court established that while Section 311 allows witness recall, it cannot be used merely to rectify gaps in questioning or for vague claims.
Final Decision: The Crl.M.C. is dismissed.
ORDER
Anneuxre-A3 order dismissing an application under Section 311 of the Cr.P.C. is under challenge in this Crl.M.C.
2. The petitioner is the accused. He faces trial for the offences punishable under Sections 8 r/w 7 and 10 r/w 9(m) of the PoCSO Act and 354A(1)(i) of the IPC.
3. After the examination of the three witnesses on the side of the prosecution, the petitioner filed an application to recall PW2, who is the mother of the victim. The court below after hearing both sides dismissed the said application as per Annexure-A3 order. The said order is under challenge in this Crl.M.C.
4. I have heard Sri.Sumodh Madhavan Nair, the learned counsel for the petitioner and Sri.P.G.Manu, the learned Senior Public Prosecutor.
5. Annexure-A1 is the petition filed by the petitioner to recall PW2. The only reason shown in the petition is that the counsel for the petitioner omitted to ask certain questions when PW2 was examined to prove his innocence.
6. It is true that Section 311 of the Cr.P.C. gives wide power to the court to recall any witness at any stage provided there is sufficient reasons and it is necessary for the just decision of the case. It is settled that the recalling cannot be sought for to fill up the lacuna. Annexure-A3 order discloses that PW2 was subjected to lengthy cross-examination. The reason sought for in Annexure-A1 petition is vague in nature. What questions were omitted to be asked to PW2 are not stated in the petition.
I see no reason to interfere with Annexure-A3 order.
Accordingly, the Crl.M.C. is dismissed.
Sd/-
DR.KAUSER EDAPPAGATH JUDGE skj APPENDIX OF CRL.MC 5548/2022 PETITIONER'S ANNEXURES Annexure-A1 A TRUE COPY OF THE PETITION FILED BY THE COUNSEL FOR THE PETITIONER UNDER SECTION 311 OF CR.P.C. IN CRL.M.P.
332/2022 IN SC 685/2020 PENDING BEFORE THE FAST TRACK SPECIAL COURT (POCSO),THRISSUR DATED 25/6/2022.
Annexure-A2 A TRUE COPY OF THE COUNTER FILED BY THE PROSECUTION BEFORE THE FAST TRACK SPECIAL COURT, THRISSUR IN CRL.M.P.
332/2022 IN SC 685/2020 DATED
5/7/2022.
Annexure-A3 CERTIFIED COPY OF THE IMPUGNED ORDER IN CRL.MP 332/2022 IN SC 685/2020 DATED 13/7/2022, PASSED BY THE FAST TRACK SPECIAL JUDGE, THRISSUR.
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