Recalling Witness For Just Decision Of Case Is Not Hollow Procedure: Kerala HC Stresses On Recording Of Strong & Valid Reason For Exercising Such Power

While considering a complaint case of robbery of gold chain, whereby the Magistrate recorded the finding that examination of witness is required to see whether there was any chance of identification of the accused, which is essential for the just decision of the case the Kerala High Court held that serious prejudice would be caused to the accused by recalling a witness for the purpose of identification alone, as it would lead to making up the inherent weakness of the case and unfair advantage to the prosecution.

A Single Judge Bench of Justice K. Babu observed that “recalling a witness for the just decision of the case is not a hollow procedure. A strong and valid reason should be recorded for the exercise of that power facilitating a just decision.”

Advocate Gayathri Muraleedharan appeared for the Petitioner, whereas M.K. Pushpalatha represented the respondent.

The brief facts of the case were that the petitioner was charged under Section 392 read with Section 34 of IPC along with one more accused for committing robbery. Both the petitioner and the other accused were on a motorbike when the incident happened. The petitioner was pillion rider when they snatched away a gold chain weighing 16 grams. Here the complainant was the only witness who identified the accused other than the petitioner. The Assistant Public Prosecutor, thereafter, filed an application under Section 311 of Cr. P.C. to recall the witness stating the reason that she omitted to identify the petitioner which is very much essential for the just decision of the case. The petitioner challenged the application with a view that there was an inordinate delay in filing the application seeking the recalling of a witness, which is fatal.

After considering the submission, the bench noted that the application under Section 311 of CrPC was filed at the very fag end of the trial and the prosecution had enough opportunity earlier.

The Bench also stated that delay in filing the application is one of the most important factors that must be explained in the application, and the prosecution, in the application submitted on its part, has not explained the delay in filing the application.

The Bench observed from a plain reading of Section 311 CrPC that “any Court may, at any stage of inquiry, trial, or other proceedings under the CrPC, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the matter.”

The Bench highlighted that the Court has very wide power to examine any witness it likes for a just decision in the case.

However, the Bench cautioned that said discretionary power upon the Court in this respect is to be exercised judicially and not arbitrarily.

Therefore, finding that the Magistrate was not justified in allowing the application to recall the witness, the High Court dismissed the application seeking for recalling of the witness.

Cause Tittle: Karthik S. Nair v. State of Kerala [Neutral Citation: 2023: KER: 51956]

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