Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2023 / 5TH ASWINA, CRL.MC NO. 2685 OF 2023 AGAINST THE ORDER/JUDGMENT SC 433/2021 OF FAST TRACK SPECIAL COURT, PERINTHALMANNA PETITIONER/PETITIONER/ACCUSED: XXXXXXXXXX XXXXXXXXXX BY ADV P.C.MUHAMMED NOUSHIQ RESPONDENT/RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031. BY ADV SRI. G SUDHEER-PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: :2:
ORDER
Dated this the 27th day of September, 2023 This Crl.M.C has been filed challenging
Annexure-A4 order dated 13.01.2023 in Crl.M.P No.3/2023 in S.C No.433/2021 on the file of the Special Judge (Fast Track), Perinthalmanna, through which an application filed by the petitioner/accused under Section 311 Cr.P.C seeking to recall the PW15 (the officer who had filed the charge) for further examination, has been dismissed.
2. The learned Counsel appearing for the petitioner
would submit that certain aspects stated by the PW15 in the box, requires to be clarified by further examination. It is submitted that the prosecution will not be prejudiced in any manner by the request for further examination of PW15. It is also pointed out that the bar under Section 33(5) of the POCSO Act will not apply in this case.
3. The learned Public Prosecutor would submit that the entire prosecution evidence has been closed and 313 :3:
statement of the accused has also been recorded. It is submitted that defense has also tendered evidence and the case is now posted for hearing. It is submitted that at this stage allowing the petition under Section 311 Cr.P.C by recalling of PW15 may unnecessarily delay the proceedings.
4. The learned counseling appearing for the petitioner would relied on the judgment of the Supreme Court in Rejendra Prasad v. Narcotic Cell (1999 KHC 417) wherein paragraph 8, it was held as follows;
“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 over sight 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 :4:
the parties performed better.” It is submitted that though the same is not stated in the application filed under Section 311 Cr.P.C., it is so happened that the relevant questions were not put to PW15, as only the junior counsel representing the accused was present in the Court on the day when PW15 was examined.
5. Having heard the learned counsel for the
petitioner and the learned Public Prosecutor, I am of the view that the application filed by the petitioner under Section 311 Cr.P.C. can be allowed. It is clear from the
judgment of the Supreme Court in Rejendra Prasad
(Supra) that the Court should be magnanimous in permitting mistakes committed during examination of witness to be rectified. The Supreme Court was of the view that the function of criminal court is the 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. I also take note of the submission of the learned counsel for the petitioner that :5:
the relevant questions could not be put to PW15 on account of the fact that only a junior counsel representing the accused was present at court at the time when the PW15 was examined. Therefore, taking a lenient view, I allow the Crl.M.C by setting aside Annexure -A4 order and allowing the application for re-examination of PW15. The trial court shall fix a date for further examination of PW15 within one week from the date of receipt of a certified copy of this order. The petitioner/counsel for the petitioner shall not be permitted to seek any adjournment for the purposes of further examination. The further examination shall be completed on the same day and adhering to the time limit mentioned in the application filed under 311 Cr.P.C.
Therefore, the Crl.M.C is allowed as above. Sd/- GOPINATH P. JUDGE AMR :6: APPENDIX OF Crl.M.C. No. 2685/2022 PETITIONER’S ANNEXURES Annexure A1 TRUE COPY OF THE FINAL REPORT IN CRIME NO.455 OF 2019 PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT. Annexure A2 TRUE COPY OF THE DEPOSITION OF PW15 IN SC NO.433 OF 2021 ON THE FILE OF HON’BLE COURT OF SPECIAL JUDGE FAST TRACK, PERINTHALMANNA. Annexure A3 TRUE COPY OF THE APPLICATION TO RECALL
PW15 BEARING CRL.M.P NO.03/2023 IN S.C NO.433/2021 ON THE FILE OF HON’BLE COURT OF SPECIAL JUDGE FAST TRACK, PERINTHALMANNA DATED 31.12.2022. Annexure A4 TRUE COPY OF THE ORDER PASSED IN CRL.M.P NO.03/2023 IN S.C NO.433/2021 BY THE HON’BLE COURT OF SPECIAL JUDGE FAST TRACK, PERINTHALMANNA.