Kerala High Court: While deciding the petition, the bench of Dr. Kauser Edappagath held that for the just decision of the case, child witness can be recalled for examination under S. 311 of Criminal Procedure Code, 1973.
Background
In the case at hand, the petitioner is facing trial for offences under Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”). The copies of statement under Section 164 of Criminal Procedure Code, 1973 (“CrPC”) of prosecution witness were made available to the petitioner after a month of examination. Thereafter, the petitioner filed a petition to recall prosecution witnesses, which was dismissed by the lower court. The petitioner challenged the order before this Court.
Analysis, Law and Decision
The Court observed that the lower court dismissed the application for recalling the witness on the ground of Section 33(5) of the POCSO Act which postulates that the child witness cannot be repeatedly recalled for examination.
The Court noted that Section 311 of CrPC gives wide power to the Magistrate to recall any witness already examined or to summon any additional witness at any stage of the proceedings for the just decision of the case.
The Court further stated that the bar under Section 33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, the child witness can be recalled.
The Court held that when the prosecution witnesses were examined, the petitioner did not receive the statement under Section 164 of CrPC. Therefore, the petitioner has every right to contradict the witness with the statement under Section 164 of CrPC.
Hence, the Court held that recalling of the witnesses is necessary for the just decision of the case and allowed the petition.
[Vineeth v. State of Kerala, Crl. MC NO. 9045 of 2022, decided on 12-12-2022]
Advocates who appeared in this case :
Counsel for Petitioner:- Advocate P. Rahul, Advocate Ashwin Antony;
Counsel for Respondent:- Advocate Smt. T.V. Neema.