Kerala High Court
Xaviour vs State Of Kerala on 3 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 3RD DAY OF JANUARY 2022/13TH POUSHA, 1943
OP(CRL.)NO.182 OF 2020
AGAINST THE ORDERS IN CRL.M.P.Nos.765/2020, 947/2020 &
965/2020 IN SC 611/2017 ON THE FILE OF THE ADDITIONAL
SESSIONS COURT-I, ALAPPUZHA (IN THE SPECIAL COURT FOR
TRIAL OF OFFENCES UNDER POCSO ACT & CHILDRENS' COURT,
ALAPPUZHA)
PETITIONER:
XAVIOUR,
AGED 56 YEARS,
S/O.PRAKASAN,THATTEKKADU HOUSE,
PURAKKAD PANCHAYAT WARD-12,THOTTAPPALLY.P.O,
ALAPPUZHA-688561.
BY ADV.SRI.ARAVIND GHOSH
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY HOME SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
SRI.M.P.PRASHANT-PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Exts.P7, P12 and P13 orders passed by the court below
are under challenge in this original petition.
2. The petitioner is the sole accused who faces trial at
the court below in S.C.No.611/2017 for the offences punishable
under Sections 341, 323 and 506(i) of the IPC and under
Section 3(a) read with Section 4 and Section 7 read with
Section 8 of PoCSO Act.
3. After the completion of the examination of all the
witnesses Special Public Prosecutor filed a petition as
Crl.M.P.No.765/2020 invoking Section 216 of the Cr.P.C. to add
charge under Section 5(k) of PoCSO Act and Section 377 of the
IPC. The court below after hearing both sides allowed the said
petition as per Ext.P7 order. Thereafter the petitioner filed two
petitions at the court below as Crl.M.P.No.947 of 2020 (Ext.P10)
and Crl.M.P.No.965/2020 (Ext.P11) to recall certain witnesses
already examined in the light of the adding of charge. Those
petitions were also dismissed by the court below as per
Exts.P12 and P13 orders. All these three orders are under
challenge in this original petition.
O.P.(Crl.).No.182 of 2020
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4. Heard Sri.Aravind Ghosh, the learned counsel for the
petitioner and Sri.M.P.Prashant, the learned Public Prosecutor
for the respondent.
5. A perusal of the evidences adduced by the victim
and other witnesses would show that there are materials to
suggest that the offences under Section 377 of the IPC as well
as under Section 5(k) of PoCSO Act is involved. Therefore, I see
no reason to upset Ext.P7 order in exercise of the jurisdiction
under Article 227 of the Constitution of India.
6. As per Section 217 of the Cr.P.C., whenever a charge
is altered or added to by the court after the commencement of
the trial, the Prosecutor or the accused, as the case may be,
shall be allowed to recall and examine the witnesses with
reference to such alteration or addition. However, the court is
empowered to reject the said prayer if it is found that the
recalling or re-examination would delay or defeat the ends of
justice. A perusal of Exts.P12 and P13 orders would show that
no reason has been shown by the court below to reject the
prayer for recalling or re-examination of the witnesses. When
two more Sections are added, the accused has every right to
O.P.(Crl.).No.182 of 2020
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cross-examine the witnesses already examined with reference
to such addition. Considering the entire facts and
circumstances of the case, I am of the view that, the court
below was not justified in rejecting the prayer for recalling the
witnesses. Hence, Exts.P12 and P13 orders are liable to be set
aside.
7. In the result, this Original Petition (Crl.) is disposed
of as follows:-
Ext.P7 order is confirmed. Exts.P12 and P13
orders are set aside. Exts.P10 and P11 petitions
stand allowed. After the completion of the
prosecution evidence, the court below shall
consider the request of the petitioner to
examine the defence witnesses.
Sd/-
DR.KAUSER EDAPPAGATH,
JUDGE
skj
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF FINAL REPORT IN CRIME
N0.675/2017 OF THE AMBALAPUZHA POLICE
STATION.
EXHIBIT P2 TRUE COPY OF FIR IN CRIME NO.675/2017
OF AMBALAPUZHA POLICE STATION.
EXHIBIT P3 TRUE COPY OF FIS IN CRIME NO.675/2017
OF AMBALAPUZHA POLICE STATION.
EXHIBIT P4 TRUE COPY OF DISABILITY CERTIFICATE OF
THE PW3 IN SC.NO.611/2017 ON THE FILE
OF ADDITIONAL SESSIONS COURT-
1,ALAPPUZHA.
EXHIBIT P5 TRUE COPY OF THE CRL.M.P.NO.765/2020
ON THE FILE OF ADDITIONAL SESSIONS
COURT-1,ALAPPUZHA DATED 15/02/2020.
EXHIBIT P6 TRUE COPY OF OBJECTION IN
CRL.M.P.NO.765/2020 ON THE FILE OF
ADDITIONAL SESSIONS COURT-1,ALAPPUZHA
EXHIBIT P7 THE TRUE COPY OF THE ORDER IN
CRL.M.P.NO.765/2020 DATED 15/02/2020
ON THE FILE OF ADDITIONAL SESSIONS
COURT-1,ALAPPUZHA
EXHIBIT P8 THE TRUE COPY OF THE DEPOSITION OF
PW20 IN SC.NO.611/2017 ON THE FILE OF
ADDITIONAL SESSIONS COURT-1,ALAPPUZHA
EXHIBIT P9 THE TRUE COPY OF THE STATEMENT OF PW3
RECORDED BY THE JUDICIAL FIRST CLASS
MAGISTRATE UNDER SECTION 164 CRPC
EXHIBIT P10 TRUE COPY OF CRL.M.P.NO.947/2020 IN
SC.NO.611/2017 ON THE FILE OF
ADDITIONAL SESSIONS COURT-1,ALAPPUZHA
DATED 18/02/2020
EXHIBIT P11 TRUE COPY OF CRL.M.P.NO.965/2020 IN SC
NO.611/2017 ON THE FILE OF ADDITIONAL
SESSIONS COURT-1,ALAPPUZHA DATED
19/02/2020
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EXHIBIT P12 THE TRUE COPY OF THE ORDER IN
CRL.M.P.NO.947/2020 IN S.C.611/2017 ON
THE FILE OF ADDITIONAL SESSIONS COURT-
1,ALAPPUZHA DATED 19/02/2020
EXHIBIT P13 THE TRUE COPY OF THE ORDER IN
CRL.M.P.NO.965/2020 IN SC.NO.611/2017
ON THE FILE OF ADDITIONAL SESSIONS
COURT-1,ALAPPUZHA DATED 19/02/2020
EXHIBIT P14 THE TRUE COPY OF THE WITNESS SCHEDULE
AND PETITION FILED BY THE ACCUSED
DATED 28/02/2020
EXHIBIT P15 THE TRUE COPY OF THE PROCEEDINGS PAPER
IN SC.NO.611/2017 ON THE FILE OF
ADDITIONAL SESSIONS COURT-1,ALAPPUZHA.
