A fair trial necessitates the opportunity to adequately cross-examine witnesses, despite prior counsel's competence.

C.S.DIAS, J.

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Crl.M.C. No. 1067 OF 2026 -----------------------------------------------

Dated this the 23^rd day of February, 2026 ORDER The petitioner is the accused in CC No.57/2020 on the file of the Court of the Judicial First Class Magistrate-XI, Thiruvananthapruam (‘Trial Court’), which has originated from Crime No.2733/2019 registered by the Vanchiyoor Police Station, Thiruvananthapuram.

2. The petitioner has stated in the Crl.M.C. that although PWs 1 to 3 were cross-examined, the cross examination was not effective as it was conducted by a junior counsel. Certain relevant questions were omitted to be put to PWs 1 to 3. In the above background, the petitioner filed an application to recall and re-examine PWs 1 to 3. Though the prosecution did not file any objection to the application, by the impugned Annexure- F order, the Trial Court rejected the application on the finding that the incompetence of the defence counsel in cross examination is not a ground to recall a witness. Annexure-F order is ex-facie erroneous and hyper-technical. The Trial Court has failed to appreciate that the petitioner was not given an equal opportunity to cross-examine the witnesses, thereby denying him a fair trial. Therefore, Annexure-F order may be set aside and the petitioner may be permitted to recall and re-examine PWs 1 to 3.

3. I have heard the learned Counsel appearing for the petitioner and the learned Public Prosecutor.

4. The petitioner’s specific case in the application is that, PWs 1 to 3 were cross-examined by a junior counsel, who omitted to put certain crucial questions to the above witnesses. In order to effectively establish the petitioner’s defence, he wants to further cross-examine the witnesses. However, the Trial Court dismissed the application on the ground that incompetence of a defence counsel is not a ground to recall the witnesses under Section 311 of the Code of Criminal Procedure . 5. It is trite law that incompetence of a defence counsel is not a ground to recall and re-examine a witness (read the decision of this Court in Chacko v.

Mary Chacko [ 2025 KHC Online 1897 ]).

6. Nevertheless, on an anxious consideration of the peculiar facts and circumstances of the case, and the petitioner’s specific assertion that certain pertinent questions were not put to the said witnesses, notwithstanding the law laid down in Chacko’s case (supra), I am of the firm view that, to ensure a fair trial, the petitioner should be given one last opportunity to recall and re-examine PWs 1 to 3 provided he mitigates the hardship caused to the witnesses by paying a reasonable amount as costs, which would meet the interest of justice.

In the aforesaid circumstances, I allow the Crl.M.C., by setting aside Annexure-F order and allowing CMP No.1/2026 in CC No.57/2020, subject to the following conditions:

(i) CMP No.1/2026 will stand allowed subject to the condition the petitioner pays PWs 1 to 3 a cost of Rs.1,500/- each on the day they appear before the Trial Court to give their evidence, and file a memo to the effect before the Trial Court along with a copy of this order.

(ii) If the memo is filed, the Trial Court is directed to permit the petitioner’s Counsel to further cross-examine PWs 1 to 3 on the day they are summoned.

(iii) Considering that the complaint is of the year

2020, the Trial Court is directed to consider and dispose of the complaint in accordance with law and as expeditiously as possible.

sd/-