Kerala High Court

Abins vs State Of Kerala on 2 November, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                   CRL.MC NO. 4971 OF 2021
PETITIONER/PETITIONER:

          ABINS
          AGED 28 YEARS
          S/O. BASHEER, THOOMPALATH HOUSE, NEAR KURIANS
          HOSPITAL, MANNAMKANDAM, ADIMALY, IDUKKI,
          NOW RESIDING AT THADATHIL HOUSE. MULAVOOR KARA,
          PAYIPRA VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT.

          BY ADV LATHEESH SEBASTIAN



RESPONDENTS/ STATE & COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.

    2     STATION HOUSE OFFICER,
          VELLATHOOVAL POLICE STATION,
          IDUKKI DISTRICT - 685563,



          PP SRI.SANGEETHRAJ N.R


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                             -2-

CRL.MC NO. 4971 OF 2021




                                          ORDER

       Petitioner                is         the       sole        accused         in

S.C.No.131/2018                 on    the     file    of        the   Fast     Track

Special Court, Idukki, Painavu.

       2.     Petitioner              has    filed    Crl.M.P         No.304/2021

in    the      above        sessions          court       for    recalling      the

victim/PW1.           Petitioner             is    facing        trial   for     the

offence punishable under Sections 3(1)(w)(i) and

3(2)(v) of the Scheduled castes and the Scheduled

Tribe (Prevention of Atrocities) Act, 1989 and

Section 376(2)(n)of Indian Penal Code, 1860 and

also Section 5(1) r/w Section 6 of the Protection

of Children from Sexual Offences Act, 2012 (in

short the Act).

3. According to the learned counsel for the

petitioner, the case is now posted for 313

examination of the petitioner. At that stage he

filed Crl.M.P.No.304/2021 for reopening the

evidence of PW1 and subjecting her to further cross

CRL.MC NO. 4971 OF 2021

examination. Annexure-A2 is the copy of the

petition. By Annexure-A3 order, the learned

Sessions Judge dismissed that petition. Aggrieved

by the same, the petitioner came up before this

Court.

4. According to the learned counsel for the

petitioner, the main reason for dismissing the

petition by the Special Court is due to the bar

under Section 33(5) of Protection of Children from

Sexual Offences Act, 2012 (in short POCSO Act),

which specifically provides that victim shall not

be repeatedly called to testify in court. That

according to him is illegal and Section 33(5) will

not override Section 311 of the Code of Criminal

Procedure, 1973 (in short Code)

5. The learned Public Prosecutor on the other

hand would contend that effective and lengthy cross

examination has been conducted by the defence

counsel and all those aspects has been considered

in detail by the Sessions Judge and hence no

CRL.MC NO. 4971 OF 2021

interference is called for.

6. According to the learned counsel for the

petitioner, during the cross examination court put

a specific question to the witness, which reads as

follows:-

Court question നിങ്ങൾ ബഹുമാനപ്പെട്ട ഇടുക്കി മജിസ്ട്രേ‌ റ്റിന് കൊടുത്ത മൊഴിയിൽ "നീ പലരുടെയും കൂടെ പോയിട്ടുണ്ട് എന്നും ഞാൻ ചൂണ്ടികാണിക്കുന്നവരുടെ കൂടെ പോയിട്ടുണ്ട് എന്നും പറയണം, പറഞ്ഞില്ലെങ്കിൽ ഞാൻ അടിക്കും എന്ന് ഇടുക്കി വനിതാ സെല്ലിലെ രണ്ടു വനിതാ പോലീസുകാർ പറഞ്ഞതായി മൊഴി മജിസ്‌ട്രേറ്റിന് മൊഴി കൊടുത്തോ? (a) ഉവ്വ"

7. Now the defence wanted to cross examine

the witness in the above aspect and some other

questions, which have been omitted during the time

of cross examination of the witness.

8. The learned counsel also would contend

that petitioner would be met with severe punishment

if he is ultimately found guilty and hence an

opportunity to be given to the accused to recall

PW1 to conduct further cross examination.

9. As per the direction of this Court, the

petitioner's counsel produced copy of the

deposition of PW1. I have gone though the

CRL.MC NO. 4971 OF 2021

deposition of PW1. On going though the same,

comparatively cross examination seen to have been

conducted touching all the aspects in chief. It is

true that the court has questioned the witness

during the time of cross examination, which the

court is entitled as per Section 165 of the Indian

Evidence Act, 1872. So as of right the petitioner

is not entitled for a cross examination on that

question, but with permission of the court he could

have cross examined the witness on that aspect

also. But nothing is there in the deposition to

show that he has sought for any permission to cross

examine the witness on the basis of court question

and it was rejected by the court. (See Sunil Kumar

v.State of Kerala [2021 KHC 155]; State of Kerala

Vs. Madhu @ Kutti madhu [2021 (1)KHC 251: ILR 2021

(1)KER 247]). Moreover, there is a bar under

Section 33(5) of the Act for repeatedly calling for

the witness for cross examination. Section 31 of

the Act starts with a non obstante clause and

CRL.MC NO. 4971 OF 2021

provides that the provisions of Code of Criminal

Procedure, 1973, shall apply to the proceedings

before a special court and the special court shall

be deemed to be a court of sessions for the purpose

of the said procedures. Section 33(5) provides that

special court shall ensure that the child is not

called repeatedly to testify in the court. Since

Section 31 of the Act starts with a non obstante

clause, no doubt, application of the provisions of

the Code, would be subject to Section 33(5) of the

Act, which guard the special court from repeatedly

calling the child to testify in the court.

10. In RajaRam Prasad Yadav V.State of Bihar

and Another [2014 (4) SCC (CRL) 256] a two judge

Bench of the Apex court dealt with the nature and

scope of Section 311 Cr.P.C. Paragraph 17 of the

said decision provides the principles to be borne

in mind by the courts which dealing with

application under Section 311 Cr.P.C which is

relevant in this context to be extracted which

CRL.MC NO. 4971 OF 2021

reads thus:-

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?

17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7 The court must satisfy itself that it was in every respect essential to examine such a

CRL.MC NO. 4971 OF 2021

witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

CRL.MC NO. 4971 OF 2021

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."

11. Rajendra Prasad V.Narcotic Cell [1999(6)

SCC 110] also deals with Section 311 Cr.P.C and

when the witnesses can be called or resummoned.

Paragraphs 8 and 10 are relevant in this extract

which reads thus:-

"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

"10. Dealing with the corresponding section in the old Code (Section 540) Hidayatullah, J.

(as the learned Chief Justice then was) speaking

CRL.MC NO. 4971 OF 2021

for a three-Judge Bench of this Court had said in Jamatraj Kewalji Govani v. State of Maharashtra as follows:

"It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case."

12. It has come out from the impugned order

that cross examination of the victim was completed

before 6 months. It is also revealed from the order

that parties have subsequently settled the matter.

So the purpose of recalling the witness is explicit

to get a retracted version of the victim. That is

not the very purpose of Section 311 Cr.P.C also.

Recalling of PW1 is also not found to be necessary

for the just decision of the case. Hence I find no

illegality or impropriety in the impugned order

warranting any interference.

CRL.MC NO. 4971 OF 2021