1. This Criminal Miscellaneous Case has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, challenging Annexure.A2 order dated 13.08.2024 in C.M.P. No.2021 of 2024 in S.C. No.1002/2020 on the files of the Special Court for the trial of offences under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], Thiruvananthapuram and to allow Annexure.A1 petition to recall and re-examine PW3. The petitioner herein is the accused in the above case.

2. Heard the learned counsel for the petitioner and the Public Prosecutor, on admission. Perused the order impugned and relevant materials available.

3. Here, the prosecution alleges commission of offences punishable under Sections 4 read with 3(a) and 8 read with 7 of the POCSO Act and under Section 376 of IPC. In this matter, the trial court proceeded with trial as per law.

PW1 to PW12 examined and Exts.P1 to P26 marked on the side of prosecution. Thereafter, the accused was questioned under Section 313(1)(b) of Cr.P.C. Hearing under Section 232 of Cr.P.C. also was finished on the finding that the acquittal of the accused under Section 232 of Cr.P.C. did not arise. Then, the accused was called upon to enter upon his defense and to adduce defense evidence. It is at this stage, petition under Section 311 of Cr.P.C. was moved to recall PW3, initially. Although the same was dismissed earlier, again the present petition under Section 311 of Cr.P.C. has been filed, mainly contending that some questions omitted to be asked to PW3, when she was cross-examined initially

4. The learned counsel for the petitioner reiterated the contentions while attempting to upset the order impugned and the learned Public Prosecutor zealously opposed the same.

5. The order impugned would show that the learned Special Judge addressed the matter with reference to Section 33(5) of the POCSO Act and finally dismissed the petition as discussed in paragraph Nos. 12, 13 and 14 of the impugned order. The same are as under:

"12. Section 33(5) of the act, specifically states that special court shall ensure that the child is not called repeatedly to testify in the court. Therefore, it is clear that as far as possible the evidence of the child has to be completed on the same day, in a child friendly atmosphere and that is the reason why such a provision has been incorporated in the Act. So, the intention of the legislature is to avoid the stress and strain that will caused to a child by calling him/her to testify in the court about the trauma faced, repeatedly. Needless to say, recalling a child victim to testify repeatedly about the incident has to be discouraged, either by the prosecution or by the defence. (Sivakumar v. State of Kerala 2021 (4) KLT 685).

13. Section 311 of Cr.P.C gives vide discretionary power to the court to summon any witness or recall and re-examine any witness already examined for the just decision of the case. But, the present petition is filed only to fill up the lacuna of the defence case and also for delaying the proceedings of this court. The recalling of the survivor, PW3, is not at all necessary in this case. Apart from this PW3 was elaborately cross examined by the defence counsel.

14. The petitioner herein filed the very same petition to re-call PW3 before this court as CMP 1739/2023 and after detailed hearing the said application was dismissed by this court on 11/07/2023. Against the said order, the petitioner herein approached Hon'ble High Court to quash the entire proceedings as Crl MC No.5742/2023 and the proceedings of this court was stayed till 24/07/2024. On 24/07/2024 when the Hon'ble High Court about to dismiss the said application, the petitioner withdrawn the application."

6. In paragraph No.14 of the impugned order, the learned Special Judge reiterated filing of C.M.P. No.1739/2023 earlier by the petitioner to recall PW3 and dismissal of the same as per order dated 11.07.2023. It is also stated that, after dismissal of the said petition, the petitioner herein filed Crl.M.C. No.5742/2023 before this Court to quash the criminal proceedings and the same was withdrawn, when this Court was about to dismiss the petition on 24.07.2024. Hence, the purpose of recalling of PW3 is to put questions which were omitted to ask during the first opportunity and the same is not a ground to recall PW3. Therefore, I am of the view that the learned Special Judge dismissed the petition for justifiable grounds and said finding of the Special Judge need not be interfered. Holding so, this petition deserves dismissal and accordingly, the same stands dismissed.

7. Since this is the second petition filed by the petitioner to recall PW3 before the Special Court, that too, after dismissal of his petition for quashing the proceedings, the attitude of the petitioner is nothing, but to drag the proceedings and the same, no doubt, is an abuse of process of the court, for which imposition of cost is inevitable. However, I am of the view that, heavy cost can be dispensed with, by imposing cost of Rs.5,000/- (Rupees Five Thousand Only) to be paid before the District Legal Services Authority, Thiruvananthapuram, within a period of two weeks from today. On failure to effect payment, the learned Special Judge is directed to proceed as per law to realize the amount from the petitioner, without fail.

8. Since it is noticed that petitioner has been playing dilatory tactics, there shall be a direction to the Special Judge to expedite the trial in S.C. No.1002/2020 and finish the same, at the earliest, at any rate, within a period of eight weeks from the date of receipt of copy of this order.

9. Registry shall forward a copy of this order to the Special Court forthwith for information and further action.