Order Allowing Application U/S 311 CrPC Must Detail Necessity for Recalling Witnesses: Kerala HC

The Court was hearing a Criminal Miscellaneous Case filed under Section 482 of the CrPC to quash the common order seeking the recalling of witnesses.

The bench of Justice A. Badharudeen observed, “an order allowing application under Section 311 of Cr.P.C. should have specific reasons explaining how re-calling and re-examination of the witnesses are necessary for the just decision of the case and a cryptic non speaking order would not suffice.”

Advocate Rojo Joseph appeared for the Appellant and Senior PP Renjit George appeared for the Respondent.

Brief Facts-

It is the case of the prosecution that the accused Hena Khatoon forcefully hit a three-year-old boy's head against a wall, causing internal bleeding and the child's death, leading to charges under Sections 302, 201 read with 34 of the IPC and Section 75 of the Juvenile Justice Act. Another accused, Shahajadha Khan, is charged with providing false information to protect Ms Khatoon. After examining witnesses and marking exhibits, the prosecution filed three petitions to recall a witness and produce the deceased child's treatment records. The petitioners objected, arguing the prosecution aimed to fill gaps in evidence. The trial court, allowed the petitions, noting that the recall and additional witness were essential for a just decision and would not prejudice the accused.

The Court while noting that as regards the power of the Court under Section 311 of Cr.P.C. is concerned, the law is well settled and mentioned the decision in the case of Xxxx v. State of Kerala [2024 (3) KHC 15: 2024 KHC OnLine 295: 2024 KER 25575: 2024 KLT OnLine 1399] and quoted, “the power under Section 311 CrPC should be invoked by the Court only in the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. The Court has wide power under S.311 CrPC to recall witnesses for re - examination or further examination, if it is necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case.”

The Court observed, “the additional evidence must not be received as a disguise for a retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.”

According to the Court, the very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of Section 311 CrPC have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way.

There is thus as per the Court no escape if the fresh evidence to be obtained is essential to the just decision of the case. According to the Court, the determinative factor is whether the summoning/recalling of witnesses is essential to the just decision of the case.

Accordingly, the Court was of the view that it could not be said that the order suffers any illegality and that the attempt of the prosecution is merely to fill up the lacuna in evidence.

Finally, the Court said that the challenge against the order would not succeed and dismissed the Petition.

Cause Title: Hena Khatoon v. State of Kerala (Neutral Citation: 2024/KER/43611)

Appearance:

Appellant: Adv. Rojo Joseph, Adv. A. Saint Paul, Adv. P.R. Shibu, Adv. P.C. Thomas, Adv. P.T. Judy and Adv. Navia Sebastian

Respondent: Sr. PP Renjit George

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