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Kerala HC: Witnesses Should Only Be Recalled Under S.311 CrPC for Strong and Valid Reasons & Not to Prejudice the Accused

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Kerala HC Law Insider

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Published on: 30 August 2023 at 18:05 IST

The Kerala High Court emphasized that the recall of a witness under Section 311 of the Code of Criminal Procedure (CrPC) should be undertaken solely when compelling and substantiated reasons exist.

Justice K Babu articulated that such reasons must be explicitly documented by the competent authority.

Justice K Babu specified that the act of recalling a witness for the purpose of ensuring a just verdict is not a mere procedural formality. He underscored that a potent and legitimate rationale must underpin the exercise of this power, aiming to facilitate a just and equitable conclusion.

Furthermore, the Court cautioned against the arbitrary or capricious application of the power to recall witnesses, particularly when it could potentially prejudice the accused.

Justice Babu stressed that the paramount importance of this matter lies in avoiding any harm to the accused. He noted that a fair and impartial trial is the cornerstone of the criminal procedure, and its fundamental purpose is to safeguard the accused from any prejudicial actions.

The Court elucidated that safeguarding fairness should not be compromised, as it fundamentally safeguards the accused’s interests.

Section 311 of the CrPC authorizes any court, during an inquiry, trial, or other proceedings, to summon or examine witnesses, even those not initially summoned, and to recall and re-examine those already questioned.

The context of this ruling stems from a case wherein the petitioner, the second accused in a robbery case, was identified by the complainant as the eyewitness.

The complainant, who had identified only the first accused and not the petitioner, applied under Section 311 of the CrPC to recall and re-examine her. The Magistrate granted this application, a decision challenged in the High Court.

During proceedings, the petitioner’s counsel argued that Section 311 of the CrPC should not be used to overcome inherent weaknesses in the prosecution’s case, and it should not provide the prosecution an unfair advantage. Conversely, the respondents’ counsel asserted that the Court possesses extensive summoning powers under Section 311 and can summon witnesses for the sake of justice.

Justice Babu’s judgment emphasized that the recall of witnesses should be undertaken judiciously to uncover pertinent and genuine facts necessary for a just case decision.

He stressed that recalling witnesses should not prejudice the accused or compromise the defense’s position.

The Court further noted that additional evidence should not be introduced to essentially redo the trial or alter the case’s nature for either party.

Based on these considerations, the Court concluded that the Magistrate’s decision to allow the recall of the complainant was unfounded.