Sri R Srinivasa Raju vs The State Of Karnataka
2021 Latest Caselaw 3078 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31st DAY OF JULY, 2021

                            BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION No.5515 of 2021
BETWEEN

SRI R. SRINIVASA RAJU
S/O LATE V RANGARAJU
AGED ABOUT 55 YEARS
SENIOR ASSITANT PUBLIC PROSECUTOR
ACMM COURT COMPLEX, 3RD FLOOR
NRUPATHUNGA ROAD, BENGALURU
RESIDENT OF VAPASANDRA VILLAGE
MANCHINABELE ROAD
CHIKKABALLAPUR DISTRICT
KARNATAKA 571 124
                                                 ...PETITIONER
(BY SRI VIVEK S., ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      BY POLICE INSPECTOR
      KARNATAKA LOKAYUKTHA
      BENGALURU CITY DIVISION
      BENGALURU-560 001

2.    SRI SUBRMANI V
      S/O LATE VENKATAPPA
      AGED ABOUT 50 YEARS
      RESIDING AT NO.39
      THOBARAHALLI, WHITEFIELD POST
      BENGALURU EAST TALUK
      BENGALURU 560 066
                                                  ...RESPONDENTS
(BY SRI B.S. PRASAD, ADVOCATE FOR R.1
Notice to R.2 is dispensed with v/o dated 31.07.2021)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 13.07.2021 PASSED BY THE XXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGMENT AND SPECIAL
JUDGE FOR PREVENTION OF CORRUPTION ACT, BANGALORE IN
SPL.C.C. NO.76/2017 REJECTING THE APPLICATION FILED BY THE
PETITIONER UNDER SECTION 311 OF Cr.P.C. (PRODUCED AS
ANNXURE-A) AND ALLOW THIS CRIMINAL PETITION.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION
along with I.A.No.1/2021, THIS DAY THE COURT MADE THE
FOLLOWING:

                            ORDER

Sri B.S. Prasad, learned Special Counsel takes notice

for the respondent-State.

Notice to respondent No.2 is dispensed with.

Though the matter is listed before the Court for hearing

on I.A.No.1/2021 for stay, with the consent of learned

counsel on both sides, the matter is heard and disposed of

finally.

2. The petitioner/accused has filed this petition under

Section 482 of Cr.P.C. challenging the order passed by the

Special Court, XXIII Additional City Civil Sessions Judge and

Special Judge, (hereinafter referred to as 'Trial Court') in

Special CC No.76/2017 dated 13.07.2021, dismissing the

application filed by him under Section 311 of Cr.P.C. for

recalling PW.1 for further cross-examination.

3. The case of the prosecution is that the Lokayuktha

Police registered a case against the petitioner/accused for the

offences punishable under Sections 7, 13(i)(d) read with

13(2) of the Prevention of Corruption Act. After filing of the

charge sheet, taking cognizance, the Trial Court proceeded

with the trial and the petitioner denied the charges. The

prosecution in order to prove the case, examined PW.1, who

is said to be the sanctioning authority and the cross-

examination was also completed. Subsequently, other

witnesses were also examined. During that time, the

petitioner filed an application through his counsel for recalling

PW.1. The same was allowed and cross-examination was

done and subsequently once-again, the petitioner filed

another I.A. for recalling PW.1, which came to be dismissed

by the impugned order. The same is under challenge.

4. Learned counsel for the petitioner/accused contended

that the application filed by the petitioner came to be

dismissed without giving an opportunity to the petitioner and

learned counsel for the petitioner was not able to appear

before the Court on the date given by the Trial Court i.e. on

09.07.2021. Therefore, the matter was posted for orders

and accordingly the order has been passed. Passing the

order without giving an opportunity to petitioner is against

the principles of natural justice and amounts to violation of

fundamental rights guaranteed under Article 21 of the

Constitution of India for fair trial. Therefore, prayed for

allowing the petition and setting aside of the order under

challenge.

5. Per contra, learned Special counsel objected the

petition and contended that the petitioner/accused has

extensively cross-examined PW.1 at length and subsequently

he has filed one more application under Section 311 of

Cr.P.C. for recalling PW.1, which was also allowed with costs.

Then PW.1 appeared for cross-examination on 31.01.2018.

Subsequently, the other witnesses were also examined. In

order to fill-up the lacunae in the cross-examination, the

petitioner has filed the application, which is not permissible.

However, the learned counsel fairly submits that on the

ground that sufficient opportunity is not accorded, the matter

can be remanded for the purpose of hearing the petitioner,

but the learned counsel also submits that the order passed is

on merits. Hence, prayed for dismissing the petition.

6. Upon hearing the arguments and on perusal of the

record, admittedly, the petitioner is facing trial before the

Court below and the evidence of PW.1 has been completed

on 31.07.2017 more than four years back. The petitioner's

counsel cross-examined the witnesses after taking

permission. The further cross-examination was conducted on

23.07.2018. A lengthy cross-examination was made and

then the case was adjourned. Further cross-examination was

conducted on 16.09.2017. There are more than 10 pages of

cross-examination done by learned counsel for the petitioner.

After completion of the cross-examination and re-

examination, again the petitioner has filed one more

application under Section 311 of Cr.P.C., which came to be

allowed on 13.12.2017 with costs of Rs.500/-. On

31.01.2018, PW.1 has been recalled and further cross-

examination was done by learned counsel for the petitioner

and the cross-examination runs to more than two pages.

Thereafter, the Trial Court proceeded to examine other

witnesses. On perusal of the evidence on record, more than

12 pages of examination has been recorded by learned

counsel for the petitioner/accused and after completing 3½

years of further cross-examination, the present application

came to be filed. Of course, the order sheet of the Trial

Court reveals that on the date fixed by the Court i.e., on

09.07.2021 for hearing on I.A., learned counsel for the

petitioner and the petitioner both remained absent. Then

the case was called at 3.40 p.m., again learned counsel for

the petitioner counsel remained absent. The Trial Court after

hearing the prosecutor, posted the matter for orders on

13.07.2021. Learned counsel for the petitioner did not

choose to appear before the Court and argue the matter prior

to passing of the order and he kept quiet and subsequently,

the order came to be passed on 13.07.2021. The order of

the Trial Court reveals that considering the prayer made by

the petitioner in the application, the order has been passed

on merits. It is not a cryptic order. However, except that

opportunity was not afforded to the petitioner, there is no

infirmity in the order. As stated by learned Special counsel

for the respondent-State only for the purpose of giving an

opportunity to learned counsel for the petitioner to argue the

matter on I.A., the matter requires to be remanded for fresh

consideration of the application under Section 311 of Cr.P.C.

Hence, the following:

Criminal Petition is allowed.

The order under challenge dated 13.07.2021 is hereby

set aside. The application under Section 311 of Cr.P.C. is

restored to the file of the Trial Court. The Trial Court is

directed to afford an opportunity to the counsel for learned

counsel for the petitioner/accused to argue on the application

under Section 311 of Cr.P.C. and then proceed to pass the

order, in accordance with law. However, it is noted that the

matter is pending for more than five years. The entire

examination is completed and the case is at the stage of final

arguments. In case, the Trial Court rejects the application of

the petitioner, the petitioner can take up the ground in the

appeal. Learned counsel for the petitioner shall not seek any

adjournment and appear before the Trial Court on the date

fixed by the Trial Court.

Send a copy of this order immediately to the Trial

Court.

Sd/-

JUDGE

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