HCMad heard a petition by an accused seeking to recall a minor prosecution witness under Section 311 CrPC. The High Court rejected the plea, finding the request bereft of reasoning and likely aimed at harassing the child witness.
The petition to recall the witness PW.13 was set aside and the Criminal Original Petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.O.P.No.20528 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 14.09.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.20528 of 2023
P.Manikandan .. Petitioner
Vs.
State Rep.by The Inspector of Police, CBI, SCB, Chennai RC.1(S)/2019 ..Respondent
PRAYER : Criminal Original Petition has been filed under section 482 of Criminal Procedure Code to set aside the impugned order dated 23.08.2023 passed by the learned Special Court for the Trial of Cases under POCSO Act, Tiruvannamalai in Crl.M.P.No.1744 of 2023 in Special S.C.No.42 of 2021 and consequently direct to allow the petition to recall the witness PW.13 named Yogesh filed by me under Section 311 of Cr.P.C., in Crl.M.P.No.1744 of 2023 in Special S.C.No.42 of 2021.
For Petitioner : Mr.S.Shankar For Respondent : Mr.K.Srinivasan, Senior Counsel Special Public Prosecutor (CBI)
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ORDER
This Criminal Original Petition is filed by the accused to recall PW.13. This petition before the trial Court for the said purpose was negatived by the trial Court and therefore, by invoking Section 482 of Cr.P.C., the present Criminal Original Petition is filed.
2. The petitioner is the sole accused in Special S.C.No.42 of 2021 pertaining to suspicious death of 4 years old girl child on 13.06.2013. This petitioner, being the suspect, was tried before the Special Court for POCSO Act, case in S.C.No.102 of 2015 for the offence under Sections 364 A and 302 IPC. The trial Court found him guilty and sentenced him to death.
3. When the matter came up for consideration as Referred Trial No.2 of 2018, the Hon'ble Division Bench of this Court set aside the order and remanded the matter back for retrial after de nova investigation by CBI. Accordingly, CBI took up the investigation, filed a final report and same was taken up by the Spl.S.C.No.42 of 2021. PW.13, then a 4 years old boy, who had
seen the accused along with the deceased together on the fateful day was
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examined in this case for the second time on 30.09.2022, on the same day, he was cross examined. After completion of examining the prosecution witnesses, case was posted for questioning the accused under Section 313 of Cr.P.C., regarding incriminating material against him. Thereafter, the present petition filed to recall PW.13. The trial Court after considering the facts and circumstances dismissed the petition for the following reason:
The petition to recall PW.13 filed after completion of the proceedings under Section 313 Cr.P.C., when the matter was listed for furnishing list of defence witnesses. The reason for further examination of PW.13 not been spelt out in the application. There is a direction from the Hon'ble High Court to complete the trial within one month from the date of order (04.07.2023). This application has been taken out by the accused, who is aware of the time frame fixed by the Court and expiry of time frame fixed, with an intention to delay the completion of trial.
4. The trial Court has taken note of the fact that PW.13 been examined on 30.09.2022 to depose about the incident which took place 10
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years ago. Presently he is 16 years old. After one year of completing the cross examination of this witness, the present petition is filed without assigning any satisfactory reason to recall him.
5. The learned counsel for the petitioner submitted that the testimony
of PW.13 earlier in S.C.No.102 of 2015 and the testimony after de nova investigation in Spl.S.C.No.42 of 2021, bristles with contradiction and same was not elucidated in the cross examination of PW.13 and therefore, for unearthing the truth, recalling of this witness is necessary. Further, submit that, though this Court in its order dated 04.07.2023 dismissed the petition, filed by the accused to quash the final report which was taken on file in Spl.S.C.No.42 of 2021, on the ground that the de nova investigation by CBI is not prohibited under Section 300 of Cr.P.C. Against the order, the accused has preferred S.L.P., and pending before the Hon'ble Supreme Court, therefore time limit of 30 days fixed by the Court in that order to complete the trial which is under challenge before the Hon'ble Supreme Court cannot be a valid reason for declining the petitioner/accused exercising his right to recall the witness under Section 311 of Cr.P.C.
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6.
6. This Court, after perusing the records and hearing the learned Special Public Prosecutor for CBI, finds that the petition to recall minor witness after one year of his examination is bereft of reasoning. Minor witness cannot be harassed under the garb of exercising the right of defence. The provisions of Witness Protection Act squarely applies more so, when the offence is committed under the POCSO Act and the witness being a child, the plea to recall P.W.13 is only to harass the witness. Therefore, this Court finds no merit, hence this Criminal Original Petition is dismissed.
14.09.2023
Internet : Yes/No Index : Yes/No rpl
Copy to,
1.The Special Court for the Trial of Cases under POCSO Act, Tiruvannamalai 2.The Inspector of Police, CBI, SCB, Chennai. 3.The Special Pubic Prosecutor (CBI), High Court of Madras, Chennai.
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Crl.O.P.No.20528 of 2023
Dr.G.JAYACHANDRAN, J.
rpl
Crl.O.P.No.20528 of 2023
14.09.2023
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1 issue framed by the court
Whether a Criminal Original Petition to recall a minor prosecution witness examined one year prior can be allowed to unearthing truth.
2 provisions across 1 enactments
P. Manikandan
State Rep.by The Inspector of Police, CBI, SCB, Chennai RC.1(S)/2019
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
