Kerala High Court
Shuhaib Ali K vs State Of Kerala on 1 July, 2025
2025:KER:47998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
CRL.MC NO. 5584 OF 2025
CRIME NO.461/2024 OF KOZHIKODE TOWN POLICE STATION,
KOZHIKODE
IN SC NO.929 OF 2024 OF FAST TRACK SPECIAL COURT, KOZHIKODE
PETITIONER/ACCUSED:
SHUHAIB ALI K
AGED 30 YEARS, S/O ALIKUTTY, AGED 30 YEARS,
RESIDING AT KUNHALAKATH HOUSE, NIRAMARUTHUR P.O.,
UNNIAL, TIRUR TALUK, MALAPPURAM DISTRICT, PIN 676 109
BY ADVS.
SRI.J.R.PREM NAVAZ
SHRI.SUMEEN S.
SHRI.MUHAMMED SWADIQ
SHRI.M.R.ALPHY GEORGE
SHRI.IRSHAD K.K.
SRI.O.MOHAMED BASIL KOYA THANGAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV.
SMT PUSHPALATHA M.K., SR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 01.07.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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G. GIRISH, J.
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Crl.M.C. No.5584 of 2025
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Dated this the 1st day of July, 2025
ORDER
The petitioner is the accused in S.C.No.929 of 2024 on the files
of the Fast Track Special Court, Kozhikode. The offences alleged
against him are under Sections 354 and 354A(1)(i) of the IPC and
Section 9(m) read with Section 10 of the POCSO Act. He is aggrieved
by the order dated 04.06.2025 of the Trial Court in CMP No.533 of
2025, rejecting his request to further cross-examine the victim, who
was already examined as PW1.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
3. It is seen from the records that the victim child was
already examined in detail before the Trial Court as PW1. It is
thereafter, that the petition was filed before the Trial Court stating
that during cross-examination, certain aspects of her testimony,
especially with respect to the identity and contradiction in previous
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statements, were not fully explored. The request in the above regard
has been rejected by the learned Special Judge stating the reason
that it would be against the tenor of Section 33(5) of the POCSO Act
to permit the continued examination of the child victim which may
amount to harassment. There is absolutely no illegality or
impropriety in the aforesaid order passed by the learned Special
Judge.
4. It is also pertinent to note that as per the law laid down
by the Hon’ble Apex Court in A.G v. Shiv Kumar Yadav and
Another [2015 KHC 4602], the failure to conduct effective
cross-examination is not a reason to recall the witness by invoking
the powers under Section 311 Cr.P.C. The incompetence of the
defence counsel to properly conduct cross-examination cannot be
cited as a reason to invoke the powers under Section 311 Cr.P.C.,
which is identical to Section 348 of BNSS.
5. A learned Single Judge of this Court has held in Parkson
Estate & Industries, Cochin and Another v. M/s. Trinity
Trading, Kochi and Another [2016 (1) KHC 278], that the
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omission on the part of the previous counsel to put certain questions
in a cross-examination cannot be cited as a reason to seek further
cross-examination of the witnesses by invoking Section 311 Cr.P.C.
6. Having regard to the above facts and circumstances of
the case, I am of the view that the impugned order passed by the
learned Special Judge warrants no interference in exercise of the
powers under Section 528 of the BNSS.
The petition is accordingly dismissed.
Sd/-
G. GIRISH
JUDGE
ded/01.07.2025
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APPENDIX OF CRL.MC 5584/2025
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF CMP NO. 533 OF 2025 FILED BY
THE PETITIONER UNDER SECTION 348 BNSS DATED
28/5/2025
Annexure A2 A TRUE COPY OF THE ORDER PASSED IN CMP NO. 533
OF 2025 IN SC NO. 929 OF 2024 DATED 4/6/2025