The recall of witnesses under Section 311 Cr.P.C requires relevance and necessity; mere attempts to delay proceedings are impermissible.

O R D E R

The order dated 11.07.2025 of the Fast Track Special Court, Kannur, in C.M.P No.277/2025 in S.C No.302/2023 is under challenge in this petition filed by the accused in the said case under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS ). The aforesaid petition was filed by the petitioners/accused before the Trial Court for the recall and further cross-examination of the victim. The reason stated was that the same victim had given statement in another case with the number S.C No.142/2023, denying all the circumstances in that case. Thus, the petitioners/accused would contend that they have to confront the victim in the proceedings in this case with the certified copy of the deposition and the statement given under Section 164 Cr.P.C in S.C No.142/2023.

2. The learned Special Judge rejected the above request with the observation that there is no intervention of any new fact, and that the recall and further cross-examination of the victim child would go against the mandate of Section 33 (5) of the Protection of Children from Sexual Offences Act .

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala.

4. 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.”

5. 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. The essential requirement to be fulfilled to order the recall of a witness under Section 311 Cr.P.C is that the Court should be satisfied that such a course is essential for the just decision of the case.

6. In the present case, the reason stated by the petitioners for the recall of the victim child for further cross-examination is that she had denied the circumstances of the crime in another case with number S.C No.142/2023. It is pertinent to note that except for a contention that the accused in that case was another brother of the first petitioner herein, and the victim is the same as that of this case, there is absolutely nothing to connect the present case with S.C No.142/2023, in which the victim is said to have denied the circumstances in that case. Thus, the request for recall and further cross-examination of the victim, in connection with the statement said to have been given by her in that case, could be allo