2023 (8) TMI 1447 - HC - Indian Laws

Application to recall witness under Section 311 Cr.P.C. dismissed for lack of adequate justification in gold chain robbery case

The Kerala HC dismissed an application under Section 311 Cr.P.C. seeking to recall a witness in a robbery case involving snatching of a 16-gram gold ... Robbery - snatching away a gold chain weighing 16 grams belonging to PW1 - seeking to recall application under Section 311 of Cr.P.C - whether there was any chance of identification which is essential for the just decision of the case? - HELD THAT:- Section 311 Cr.P.C provides that any Court may, at any stage of inquiry, trial, or other proceedings under the Cr.P.C., 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 aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or to give an unfair advantage to the rival side and further, the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties - 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. The application under Section 311 of Cr.P.C was filed at the very fag end of the trial. The prosecution had enough opportunity earlier. The delay in filing the application is one of the most important factors that has to be explained in the application. This Court is of the view that the learned Magistrate was not justified in allowing the application to recall the witness - The application seeking the recalling of witness stands dismissed. Issues involved:The challenge to the order dated 16.2.2023 in Crl.M.P. No. 958/2023 in C.C. No. 438/2019 on the file of the Judicial First Class Magistrate Court, Chalakudy.Issue 1: Identification of Accused No. 2The petitioner, accused No. 2, faced a charge under Section 392 r/w Section 34 of IPC for allegedly committing robbery along with another accused. The prosecution sought to recall PW1, the defacto complainant, under Section 311 of Cr.P.C. to identify accused No. 2, as she had failed to do so during the initial examination. The defence argued against the recall, citing prejudice to accused No. 2 due to the delay in filing the application and the potential for unfair advantage to the prosecution.Decision: The Court considered the provisions of Section 311 Cr.P.C., emphasizing that the power to summon or recall witnesses should be used judiciously for a just decision. It noted that recalling a witness solely for identification could lead to prejudice and unfair advantage. Referring to precedents, the Court highlighted the importance of preventing failure of justice and ensuring a fair trial without causing undue prejudice to the accused. Ultimately, the Court set aside the order allowing the recall of the witness, dismissing the application seeking her recall.Issue 2: Delay in Filing ApplicationAnother crucial aspect was the delay in filing the application under Section 311 of Cr.P.C. The prosecution filed the application towards the end of the trial without providing a satisfactory explanation for the delay. Precedents were cited to underscore the significance of timely applications and the potential implications of delayed requests for recalling witnesses.Decision: The Court emphasized the importance of explaining delays in filing such applications, citing a precedent where a delayed application was dismissed due to suspicions of witness tampering. In this case, the Court found the delay significant and considered it a relevant factor in its decision to set aside the order allowing the witness recall.This judgment from the Kerala High Court addressed the challenges related to recalling a witness for identification in a criminal case, highlighting the need for judicious exercise of power under Section 311 of Cr.P.C. to ensure a fair trial and prevent prejudice to the accused. The Court's decision focused on upholding the principles of justice and fairness while considering the specific circumstances and implications of the case at hand.