Shefeek vs State Of Kerala
2022 Latest Caselaw 476 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                        CRL.MC NO. 6364 OF 2021
 AGAINST THE ORDER/JUDGMENT IN CRMP 1057/2021 IN SC 1125/2018 OF
                  ADDITIONAL SESSIONS COURT-1, KOLLAM
PETITIONER/ACCUSED:

          SHEFEEK
          AGED 31 YEARS
          S/O SHIHABUDEEN, VAYALIL PUTHEN VEEDU UMAYANALLOOR,
          PERAYAM CERRI, THAZHGUTHALA VILLAGE, NEW RESIDING AT
          V.N.S VILLA, MYLAPORE CHERRI, THAZHUTHALA VILLAGE,
          KOLLAM DISTRICT-691 571
          BY ADVS.
          K.SIJU
          ANJANA KANNATH
          T.S.SREEKUTTY


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
          AT ERNAKULAM-682 031.
    2     STATION HOUSE OFFICER
          KOTTIYAM POLICE STATION, KOLLAM DISTRICT-691 571



          SRI M P PRASANTH-PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.01.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                    2
Cri.M..C No.6364 of 2021



                                 ORDER

This Crl.M.C has been filed challenging Annexure A3

order passed by the court below dismissing an application

filed under Section 311 of Cr.P.C by the accused to recall the

victim who was examined as PW1.

2. The petitioner faced trial for the offences

punishable under Sections 354A and 354D of the Indian Penal

Code and Section 11(iv), (v) r/w 12 of the Protection of

Children from Sexual Offences Act (for short "POCSO Act").

3. The prosecution allegation is that the petitioner

with an intention to commit sexual harassment and stalking,

followed the de-facto complainant, who was aged 17 years

and on 16.02.2018 at about 5 P.M caught hold of her hand

and demanded to marry him and thereby committed the

offences.

4. The prosecution evidence is over. The matter

stands posted for the examination of the accused under

Section 313 Cr.PC. At that time, the petitioner filed Annexure

A1 petition under Section 311 of Cr.P.C to recall the

Cri.M..C No.6364 of 2021

victim/PW1 for further examination. The reason shown is that

at the time of examination of PW1, a letter allegedly written

by the victim to the petitioner could not be traced out and

questions could not be put to her with reference to the

contents of the said document. The court below, as per the

impugned order, dismissed the application on merits and also

relying on Section 33 (5) of the POCSO Act.

5. I have heard Smt.Anjana Kannath, learned counsel

for the petitioner and Sri.M.P.Prasanth, learned Public

Prosecutor.

6. It is true that Section 33(5) of the POCSO Act says

that the special court shall ensure that the child/victim is not

called repeatedly to testify in the court. That does not mean

that the court cannot exercise the power under Section 311 of

Cr.P.C to recall the victim in appropriate case, if the

ingredients of Section 311 of Cr.P.C. are attracted.

7. The learned counsel for the petitioner made

available to me the photo copy of the letter as well as the

copy of the deposition of the PW1. A perusal of the contents

of the letter would show that the said letter is styled as

Cri.M..C No.6364 of 2021

written by the victim. It is true that the genuineness of the

letter is to be proved. However, its contents would show that

the victim had previous acquaintance with the petitioner and

they were in love. But, during evidence, the victim has totally

denied her previous acquaintance with the petitioner. She

deposed in cross examination that she saw the petitioner for

the first time when the alleged incident was taken place . In

this circumstance, recalling and re-examining PW1 confronting

with the letter may be necessary to substantiate the defence

case.

8. It is trite that the power conferred on the criminal

court under Section 311 is wide and can be exercised at any

stage, provided, it is essential to the just decision of the case.

It has been consistently held by the Apex court that the power

under Section 311 has to be exercised liberally if it is found

that recalling and re-examination of the witness is essential to

the just decision of the case. Of course, such a power cannot

be exercised to cause prejudice to the opposite party. If PW1

is recalled and the letter allegedly written by her is confronted

and is further examined, I am of the view that no prejudice

Cri.M..C No.6364 of 2021

could be caused to the prosecution/victim. Thus, in spite of

the interdiction of Section 33(5) of the POCSO Act, I am of

the view that this petition can be allowed.

In the light of the above findings, Annexure A3 order

stands set aside and Annexure A1 petition stands allowed. It

is made clear that re-examination of PW1 shall be confined to

the contents of the letter allegedly written by victim to the

petitioner.

Sd/-

DR.KAUSER EDAPPAGATH

JUDGE rpk

Cri.M..C No.6364 of 2021

APPENDIX OF CRL.MC 6364/2021

PETITIONER ANNEXURES Annexure 1 THE COPY OF PETITION FILED UNDER SEC 311 CR.PC AS CRL.M.P NNO 1057/2021 IN SC NO 1125/2018 DATED 22.10.2021 Annexure 2 THE COPY OF OBJECTION FILED BY THE PUBLIC PROSECUTOR IN CRL.M.P NO 1057/2021 DATED 2.11.2021 Annexure 3 THE COPY OF ORDER DATED 2.12.2021 PASSED BY THE ADDL SESSIONS COURT-1 KOLLAM IN CRL.MP NO0 1057/2021 IN SC NO 1125/2018 DATED 2.12.2021