Kerala High Court
Xaviour vs State Of Kerala on 3 January, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 3RD DAY OF JANUARY 2022/13TH POUSHA, 1943
OP(CRL.)NO.182 OF 2020
AGAINST THE ORDERS IN CRL.M.P.Nos.765/2020, 947/2020 &
965/2020 IN SC 611/2017 ON THE FILE OF THE ADDITIONAL
SESSIONS COURT-I, ALAPPUZHA (IN THE SPECIAL COURT FOR
TRIAL OF OFFENCES UNDER POCSO ACT & CHILDRENS' COURT,
ALAPPUZHA)
PETITIONER:
XAVIOUR,
AGED 56 YEARS,
S/O.PRAKASAN,THATTEKKADU HOUSE,
PURAKKAD PANCHAYAT WARD-12,THOTTAPPALLY.P.O,
ALAPPUZHA-688561.
BY ADV.SRI.ARAVIND GHOSH
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY HOME SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
SRI.M.P.PRASHANT-PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(Crl.).No.182 of 2020
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JUDGMENT
Exts.P7, P12 and P13 orders passed by the court below are under challenge in this original petition.
2. The petitioner is the sole accused who faces trial at the court below in S.C.No.611/2017 for the offences punishable under Sections 341, 323 and 506(i) of the IPC and under Section 3(a) read with Section 4 and Section 7 read with Section 8 of PoCSO Act.
3. After the completion of the examination of all the witnesses Special Public Prosecutor filed a petition as Crl.M.P.No.765/2020 invoking Section 216 of the Cr.P.C. to add charge under Section 5(k) of PoCSO Act and Section 377 of the IPC. The court below after hearing both sides allowed the said petition as per Ext.P7 order. Thereafter the petitioner filed two petitions at the court below as Crl.M.P.No.947 of 2020 (Ext.P10) and Crl.M.P.No.965/2020 (Ext.P11) to recall certain witnesses already examined in the light of the adding of charge. Those petitions were also dismissed by the court below as per Exts.P12 and P13 orders. All these three orders are under challenge in this original petition.
O.P.(Crl.).No.182 of 2020
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4. Heard Sri.Aravind Ghosh, the learned counsel for the petitioner and Sri.M.P.Prashant, the learned Public Prosecutor for the respondent.
5. A perusal of the evidences adduced by the victim and other witnesses would show that there are materials to suggest that the offences under Section 377 of the IPC as well as under Section 5(k) of PoCSO Act is involved. Therefore, I see no reason to upset Ext.P7 order in exercise of the jurisdiction under Article 227 of the Constitution of India.
6. As per Section 217 of the Cr.P.C., whenever a charge is altered or added to by the court after the commencement of the trial, the Prosecutor or the accused, as the case may be, shall be allowed to recall and examine the witnesses with reference to such alteration or addition. However, the court is empowered to reject the said prayer if it is found that the recalling or re-examination would delay or defeat the ends of justice. A perusal of Exts.P12 and P13 orders would show that no reason has been shown by the court below to reject the prayer for recalling or re-examination of the witnesses. When two more Sections are added, the accused has every right to O.P.(Crl.).No.182 of 2020 ..4..
cross-examine the witnesses already examined with reference to such addition. Considering the entire facts and circumstances of the case, I am of the view that, the court below was not justified in rejecting the prayer for recalling the witnesses. Hence, Exts.P12 and P13 orders are liable to be set aside.
7. In the result, this Original Petition (Crl.) is disposed of as follows:-
Ext.P7 order is confirmed. Exts.P12 and P13 orders are set aside. Exts.P10 and P11 petitions stand allowed. After the completion of the prosecution evidence, the court below shall consider the request of the petitioner to examine the defence witnesses.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE skj O.P.(Crl.).No.182 of 2020 ..5..
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF FINAL REPORT IN CRIME N0.675/2017 OF THE AMBALAPUZHA POLICE STATION.
EXHIBIT P2 TRUE COPY OF FIR IN CRIME NO.675/2017 OF AMBALAPUZHA POLICE STATION. EXHIBIT P3 TRUE COPY OF FIS IN CRIME NO.675/2017 OF AMBALAPUZHA POLICE STATION. EXHIBIT P4 TRUE COPY OF DISABILITY CERTIFICATE OF THE PW3 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT- 1,ALAPPUZHA.
EXHIBIT P5 TRUE COPY OF THE CRL.M.P.NO.765/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA DATED 15/02/2020. EXHIBIT P6 TRUE COPY OF OBJECTION IN CRL.M.P.NO.765/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P7 THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.765/2020 DATED 15/02/2020 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P8 THE TRUE COPY OF THE DEPOSITION OF PW20 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA EXHIBIT P9 THE TRUE COPY OF THE STATEMENT OF PW3 RECORDED BY THE JUDICIAL FIRST CLASS MAGISTRATE UNDER SECTION 164 CRPC EXHIBIT P10 TRUE COPY OF CRL.M.P.NO.947/2020 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA DATED 18/02/2020 EXHIBIT P11 TRUE COPY OF CRL.M.P.NO.965/2020 IN SC NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA DATED 19/02/2020 O.P.(Crl.).No.182 of 2020 ..6..
EXHIBIT P12 THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.947/2020 IN S.C.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT- 1,ALAPPUZHA DATED 19/02/2020 EXHIBIT P13 THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.965/2020 IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA DATED 19/02/2020 EXHIBIT P14 THE TRUE COPY OF THE WITNESS SCHEDULE AND PETITION FILED BY THE ACCUSED DATED 28/02/2020 EXHIBIT P15 THE TRUE COPY OF THE PROCEEDINGS PAPER IN SC.NO.611/2017 ON THE FILE OF ADDITIONAL SESSIONS COURT-1,ALAPPUZHA.