Kerala High Court: Dismissal of Recall Petition Violates Fair Trial, Upholds Importance of Cross-Examination
Pranav B Prem
"...it appears that, if the evidence as such of PWs 1 to 4 and PWs 8 to 10 is allowed to be considered by the trial court, without giving another opportunity to the petitioner to cross-examine them, the same is not fair trial, even though reluctance on the part of the petitioner in cross-examining them could be gathered, prima facie." held the Kerala High Court
Facts of the Case
The petitioner, Suresh Ram, was accused of committing offenses under Sections 498(A), 420, 494, and 354A(i)(iii) of the Indian Penal Code, related to domestic violence and fraud. During the trial, key prosecution witnesses (PW1 to PW4 and PW8 to PW10) were examined on different dates between 2018 and 2023. Despite an earlier application in 2018 to recall PW1 to PW4 for cross-examination, the petitioner failed to pay the costs imposed by the court, resulting in his inability to cross-examine them.
In 2024, the petitioner filed another application to recall the same witnesses [Section 311 CrPC], along with PW8 to PW10, arguing that their cross-examination was essential for his defense. The trial court dismissed the application, citing the petitioner’s failure to utilize earlier opportunities and the delay caused by his actions. Aggrieved by this decision, the petitioner moved the Kerala High Court, asserting that the dismissal violated his right to a fair trial.
High Court's Observations
A single-judge bench of Justice A. Badharudeen, acknowledged the petitioner’s repeated failure to utilize earlier opportunities to cross-examine the witnesses. However, the Court noted that denying the petitioner another chance to cross-examine these witnesses would amount to a violation of the right to a fair trial.
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The Court emphasized that cross-examination is fundamental to testing the veracity and reliability of witness testimony. If a trial court considers the evidence of witnesses without allowing the accused an opportunity to challenge it through cross-examination, it undermines the fairness of the trial.
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While the petitioner exhibited reluctance and delay in fulfilling procedural obligations, the Court balanced this against the larger interest of justice, recognizing that the accused’s right to defend themselves must be prioritized over procedural lapses.
Judgment
The High Court allowed the petitioner another opportunity to cross-examine the witnesses, subject to the payment of Rs. 3,500 to each witness as a cost. The trial court was directed to ensure the cross-examinations were completed within four weeks, with strict instructions to the petitioner to comply. Failure to do so would result in the forfeiture of the right to cross-examine, and the trial court could proceed to dispose of the case.
Cause Title: Suresh Ram v. State of Kerala
Case No: CRL.MC NO. 9667 OF 2024
Date: November-25-2024
Bench: Justice A. Badharudeen
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