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Judgment
Dr Kauser Edappagath, J
Annexure A2 order passed by the Enquiry Commissioner and Special Judge, Thrissur (for short, 'the court below') dismissing an application to recall PW1 and PW13 is under challenge.
The petitioner is the accused. He faces trial for the offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The examination of the prosecution witness is over. PW1 is the defacto complainant. PW13 is the investigating officer. The petitioner filed Crl.M.A. No.499/2023 to recall PW1 and PW13 on the ground that he omitted to put question regarding certain omissions in the statement of PW1 recorded under section 161 of Cr.P.C while he was examined. It is for that limited purpose, the recalling of PW1 as well as PW13 was sought. The court below after hearing both sides dismissed the same as per Annexure A2 order.
I heard the learned counsel for the petitioner as well as the learned Senior Public Prosecutor.
Section 311 of Cr.P.C gives power to the Magistrate/Court to recall any witness or to summon any additional witness at any time, provided, it is necessary for the just decision of the case. However, it is settled that section 311 of Cr.P.C cannot be invoked to fill up a lacuna. The impugned order would show that PW1 was extensively cross-examined by the learned counsel for the petitioner. According to the petitioner, he omitted to put question regarding the omission in the 161 statement of PW1. It is nothing but to fill up the lacuna. That apart, in the impugned order, it is clearly stated that the alleged omission was put to PW1 and his answer was also recorded. It is true, it was not marked. The marking of the statement is only a procedural formality. For the said purpose alone witness need not be recalled. I do not find any illegality or impropriety in the order. Accordingly, the Crl.M.C is dismissed.