Kerala High Court: In a plea filed by the accused challenging the order of the Trial Court allowing a petition under Section 311 of the Code of Criminal Procedure, 1973 (‘CrPC’) filed by the prosecution for recall and reexamination of witness, A. Badharudeen, J., while dismissing the petition held that Section 311 CrPC empowered the Court to recall and examine any witness so required to meet the ends of justice and the determinative factor should be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
Background
The prosecution has alleged that the accused forcefully hit a three-year-old on the head, resulting in internal bleeding, and ultimately causing his death, thereby committing offences punishable under Sections 302, 201 read with 34 of IPC as well as under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’).
The allegation against accused 2 herein is that he gave false information about the crime to save accused 1 from facing punishment before the law, thereby committing offences punishable under Sections 118, 201 read with 34 of IPC as well as Section 75 of the JJ Act.
When the matter was being proceeded with by the Trial Court, after completion of witness examination and marking if exhibits, the prosecution filed three petitions- a petition under Section 311 of the CrPC for recalling a witness, application under Section 230 of the CrPC for issuance of summons to the doctor, and a petition under Section 91 of the CrPC for issuance of summons to the first witness for production of treatment records of the child.
The accused had filed objections before the Trial Court against these aforementioned petitions, accusing the prosecution of trying to fill up lacunae in the evidence, however, the Trial Court allowed the said petitions holding that the trial had not crossed the stage of prosecution evidence and that it was settled law that a witness could be examined by the Court invoking Section 311 even without his previous statement. Therefore, the accused have filed the present petition challenging the order of the Trial Court.
The accused contended that the prosecution had filed such petitions before the Court at a belated stage and was trying to fill up lacunae in his evidence.
The prosecution submitted that the petitions were filed much before the completion of prosecution evidence and that power under Section 311 of the CrPC could be exercised by the Court if such an action was necessary to meet the ends of justice. It was further submitted by the prosecution that , in this matter, the specific contention raised by the accused during trial was that the reason for the cause of death of the child was medical negligence and the prosecution wanted to examine the doctors with the support of the entire medical documents including the doctor, who was excluded from the list of witnesses by the prosecution, to prove the truth of the allegations and in such view of the matter no prejudice would be caused as far as the accused were concerned, therefore, the impugned order was perfectly justified and interference thereof was unwarranted.
Decision and Analysis
The Court noted that the law regarding the power of the Court was well settled and referred to the decision in Xxxx v. State of Kerala 2024 (3) KHC 15, wherein it was held that Section 311 of the CrPC imposed a mandatory obligation upon the Court to summon and examine or recall or re-examine any person if his evidence appeared to be essential in the just decision of the case.
While dealing with the prayers of the accused in the present petition the Court observed that the prosecution wanted to recall and examine a witness and wanted documents to be produced specifically on the ground that the original treatment records of the deceased from the hospital where he was treated, could not be collected during the course of investigation and production and marking of the treatment records of the deceased in evidence before the Court were highly necessary for the just decision of the case.
The Court noted that additional evidence must not be received as a disguise for a re-trial, or to change the nature of the case against either of the parties, but such power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. The Court further noted that the power conferred under Section 311 CrPC must 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.
The Court noted that in the present case it was being alleged by the accused that the death of the child was due to medical negligence and the prosecution’s case was that the death was not due to medical negligence and hence wanted to examine and recall the medical practitioner, therefore, it was essential to allow the examination of the said witness to mete out justice between the parties.
The Court, therefore, upheld the order of the Trial Court and dismissed the petition.
[Hena Khatoon v. State of Kerala, 2024 SCC OnLine Ker 3166, decided on 21-06-2024]
Advocates who appeared in this case:
Advocates for the petitioner: Rojo Joseph, A.Sain Paul, P.R.Shibu, P.C.Thomas, P.T.Judy, Navia Sebastian, Advocates
Advocate for the State: Renjit George, Sr Public Prosecutor, State Public Prosecutor, Advocates