Kerala High Court Rejects Recall of Rape Survivor in POCSO Trial | Terms Attempt a ‘Ploy to Subvert Justice’ | Says Courts Must Not ‘Be Privy to Witness Manipulation’
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice G. Girish dismissed a plea seeking to recall a rape survivor for further cross-examination on the basis of a compromise reached during trial. The Court held that the invocation of powers under Section 311 Cr.P.C. (Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023) to allow the victim to retract her earlier testimony, which was given under oath and after cross-examination, would compromise the judicial process. The Court directed that such attempts to subvert justice and alter sworn testimonies based on alleged settlements are impermissible.
The matter arose from the prosecution of a man accused of committing penetrative sexual assault on a minor girl. According to the prosecution, the accused allegedly committed the offence at a hotel room in Thrissur while returning from a film shoot in the early hours of January 18, 2023. The case was registered as Crime No.2268/2023 of Town East Police Station, Thrissur, and trial commenced in S.C No.517/2024 before the Fast Track Special Court-II, Thrissur. The petitioner faced charges under Sections 376, 323, and 506 of the Indian Penal Code and Sections 4 r/w 3(a) and 7 r/w 8 of the Protection of Children from Sexual Offences Act, 2012.
During the trial, 28 witnesses were examined, including the victim who was listed as PW1. She gave her testimony and was subjected to detailed cross-examination. After the prosecution's examination was near conclusion with only the Investigating Officers left to be examined, the accused reportedly reached a settlement with the victim. Subsequently, an affidavit purportedly signed by the victim, stating she had no subsisting grievance, was submitted before the High Court in Crl.M.C No.9553/2024, seeking to quash the proceedings.
Relying on the alleged compromise, the accused filed an application (Annexure A1) before the trial court under Section 311 Cr.P.C. seeking to recall PW1 for further cross-examination. The Special Judge, by an order dated November 27, 2024, dismissed the application, observing that no compelling circumstances had been established to show that recalling PW1 was essential for a just decision. The Special Judge also noted that the quash petition before the High Court was still pending.
Aggrieved by the order, the accused filed a fresh petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, before the Kerala High Court.
The Court analysed the statutory framework under Section 311 Cr.P.C., noting “Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
The judgment elaborated that the provision has two parts—the first discretionary, and the second mandatory if the evidence is essential. The Court stated “While it is optional for the Court under the first portion of the said Section to summon and examine any witness or recall and re-examine any witness already examined, the second portion is somewhat mandatory in nature since it is incumbent upon the court to examine or recall and re-examine such persons if his evidence appears to be essential for the just decision of the case.”
Justice Girish stated the need for caution, stating “It is well settled that the powers under Section 311 Cr.P.C cannot be exercised for every drop of the hat. Unless there are valid and sufficient grounds for ordering the examination or recall and re-examination of the witnesses concerned, the Courts shall be loath in resorting to the aforesaid procedure.”
Stating the factual context, the Court recorded that the victim had already been subjected to extensive examination and cross-examination and had reiterated her allegations both before the Magistrate and in court. The Court opined “Now the effort being made by the petitioner/accused is to persuade the survivor to confess before the Trial Court that she had launched false prosecution and gave false evidence about the penetrative sexual assault perpetrated upon her by the accused/petitioner.”
The Court denounced the attempt as a subversion of justice, stating “The endeavour of the petitioner in the above regard would definitely amount to degrading the sanctity and credibility of judicial proceedings.”
In support of its reasoning, the Court relied on Mishrilal and Others v. State of M.P and Others [(2005) 10 SCC 701], where the Supreme Court had held that once a witness is examined and cross-examined, they should not be recalled merely to retract prior evidence. The judgment quoted the Apex Court: “Such witness should not have been recalled and re-examined to deny the evidence he had already given before the court... The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court.”
Further, reference was made to Rama Paswan and Others v. State of Jharkhand [(2007) 11 SCC 191], where the Apex Court disallowed further cross-examination of a rape victim on the basis of a compromise, affirming that such offences are not compoundable.
The High Court also cited its earlier judgement in Bineesh G v. State of Kerala and Another [2019 KHC 363], observing “Such exercise would not only be illegal but also perverse.”
The Court concluded that the impugned order of the Fast Track Special Court-II, Thrissur, was not legally erroneous. It held, “In the light of the settled principles of law evolved out of the aforesaid decisions of the Apex Court and this Court, the impugned order... disallowing the petition filed by the petitioner under Section 311 Cr.P.C cannot be found to be erroneous.”
Accordingly, the petition was dismissed with the statement: “Needless to say that the present petition is devoid of merits. The petition is accordingly dismissed.”
Advocates Representing the Parties:
For the Petitioners: Shri. Rebin Vincent Gralan, Shri. Dinesh G. Warrier
For the Respondents: Shri. G. Sudheer, Public Prosecutor
Case Title: XXX v. State of Kerala
Neutral Citation: 2025: KER:55609
Case Number: Crl.M.C.No.6477/2025
Bench: Justice G. Girish
