Introduction:

In the landmark case of Shiju Krishnan v. State of Kerala [Crl.M.C. No. 6477 of 2025; 2025 LiveLaw (Ker) 472], the Kerala High Court, through a judgment authored by Justice G. Girish, decisively ruled that the discretionary power under Section 311 of the Criminal Procedure Code (CrPC)—and its corresponding provision under Section 348 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—cannot be misused to recall a victim of rape or a POCSO (Protection of Children from Sexual Offences) survivor for the purpose of altering the evidence already rendered during the trial. The Court held that any such attempt to compel the victim to retract her testimony and state that the incident of sexual assault did not occur, especially after a supposed out-of-court compromise, undermines the credibility and sanctity of the judicial process. The case was brought before the Court by the petitioner-accused who stands charged under Sections 376, 323, and 506 of the Indian Penal Code (IPC), as well as Sections 3(a), 4, 7, and 8 of the POCSO Act. After the prosecution had already examined the survivor (PW1)—a minor girl—and 27 other witnesses, the accused, allegedly after entering into a private compromise with the victim, approached the High Court to quash the criminal proceedings. In parallel, he also filed an application before the Special Court under Section 311 CrPC to recall the victim for further cross-examination, with the specific aim of bringing on record a revised version of the incident, presumably influenced by the settlement. The Trial Court dismissed the application and the High Court, affirming this decision, categorically refused to grant the prayer for recalling the survivor, citing that it was nothing short of an attempt to manipulate the course of justice.

Arguments from the Petitioner’s Side:

The petitioner, who faces grave charges including penetrative sexual assault under the POCSO Act and rape under Section 376 IPC, submitted that the initial testimony given by the survivor was not voluntary and had been delivered under undue influence. It was contended that the girl, during her initial statements to the investigating officer, the Magistrate, and even under cross-examination, had adhered to one version of events. However, post that phase of the trial, the petitioner claimed to have reached a compromise with the victim and her family, resulting in the victim now being willing to change her statement and support the accused. It was argued that this new development, which indicates a possibility of false implication in the original version, necessitated recalling her for further cross-examination in the interest of justice and fairness. The counsel stressed that the fundamental purpose of Section 311 CrPC is to empower courts to summon or recall any person if their evidence appears essential for just decision-making. By this logic, the counsel asserted, the willingness of the victim to now recant her earlier statement could provide exculpatory evidence crucial for the accused’s defense. It was also pointed out that the trial was still ongoing and that the recalling of witnesses is a procedural remedy available in the course of criminal trials to ensure full disclosure and clarity. The accused’s legal team emphasized that disallowing such a recall would deny him a fair trial and infringe upon his constitutional rights under Article 21. Further, the petitioner submitted that the intent was not to harass or intimidate the survivor, but merely to present a new, truthful version in court, which could exonerate the accused.

Arguments from the Respondent’s Side:

The Public Prosecutor, appearing on behalf of the State of Kerala, strongly opposed the petition and dismissed the suggestion that the initial testimony of the victim was anything other than voluntary and truthful. It was pointed out that the survivor, a minor girl, had unwaveringly maintained her statement throughout the investigation, before the Magistrate under Section 164 CrPC, and during her deposition in court as PW1. The State argued that the accused’s current move to recall the witness stemmed from a post-facto compromise which had no place in serious offences such as rape and child sexual abuse, which are crimes not just against the individual but against society at large. The respondent submitted that allowing the accused to recall the victim solely to change her version would send a dangerous signal that witness testimonies can be manipulated or bought, undermining the very foundation of the criminal justice system. The Public Prosecutor emphasized that the power under Section 311 CrPC is not a tool for the accused to exploit at will, but a safeguard reserved for situations where the court is convinced that additional evidence is vital for a just verdict. The State stressed that in this case, no such condition was met, and the application was merely a disguised attempt to pressure or coerce the survivor into a retraction. The respondent further argued that such an exercise would not only retraumatize the victim but also delegitimize her earlier testimony which was made in the presence of a judicial magistrate and sustained under cross-examination. Therefore, the request to recall the survivor amounted to nothing more than a cynical abuse of process aimed at facilitating the accused’s acquittal through extra-judicial means.

Court’s Judgment:

The Kerala High Court, in its well-reasoned order, rejected the petitioner’s plea with strong judicial disapproval of the practice of recalling witnesses, particularly victims of heinous offences, to change their prior testimony due to private compromises. Justice G. Girish began by reiterating the well-established legal principle that the power under Section 311 CrPC (and now Section 348 of the BNSS) is a discretionary and extraordinary remedy that cannot be exercised in a mechanical or routine manner. The judge clarified that this provision exists to aid the court in arriving at a just decision and should not be wielded to subvert the course of justice. The Court observed that the survivor in the case had, without wavering, given a consistent version of events to the police, the magistrate, and under cross-examination, confirming the occurrence of penetrative sexual assault by the accused. Thereafter, the accused sought to take advantage of a purported “compromise” to have the girl recall her version and disown her own testimony, essentially to secure an acquittal. The Court was categorical in stating that permitting such a recall for the specific purpose of retracting already sworn testimony would amount to “degrading the sanctity and credibility of judicial proceedings.” Justice Girish condemned the attempt, terming it as one aimed at manipulating the court to serve a private settlement in a criminal matter that involved a child victim. The Court further remarked, “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. No doubt, the above venture of the petitioner/accused cannot be given the stamp of approval of this Court, since the attempt of the petitioner in this regard is to subvert the due process of law.” The Court therefore dismissed the petition in entirety and upheld the order of the Special Court rejecting the recall application. Through this verdict, the Kerala High Court reinforced the crucial principle that judicial forums cannot be instruments for validating post-trial manipulations or compromises in serious offences such as rape or those under the POCSO Act. The decision sends a strong message that victims, especially minors, cannot be summoned back to court merely to facilitate exoneration based on external pressures, and that the integrity of sworn testimony must be preserved to uphold the rule of law.