Karnataka High Court

Smt Akkamma G vs Sri Hemanth Kumar Yadhav H on 4 April, 2022

Bench: M.Nagaprasanna

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 04TH DAY OF APRIL, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.1362 OF 2022

BETWEEN:

SMT.AKKAMMA G.,
W/O NAGARAJ
AGED ABOUT 62 YEARS,
R/AT NO.42, MATHRUSHREE KRUPA
2ND FLOOR, 6TH MAIN ROAD,
MEENAKSHI NAGARA
BASAVESHWARA NAGAR
BENGALURU - 560 079.
                                                 ... PETITIONER
(BY SRI GANESH G., ADVOCATE)

AND:

SRI HEMANTH KUMAR YADHAV H.,
S/O HANUMANTHARAYAPPA
AGED ABOUT 28 YEARS,
R/AT NO.74, PANWAR NIWAS
2ND MAIN, 10TH CROSS,
HOYSALANAGAR
SUNKADAKATTE
BENGALURU - 560 001.
                                             ... RESPONDENT
(RESPONDENT SERVED)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 03.01.2022 IN
C.C.NO.15205/2019, PENDING ON THE FILE OF THE XII A.C.M.M
AT BENGALURU, AND PERMIT THE PETITIONER TO CROSS
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EXAMINE PW-1 TO ARRIVE AT A JUST CONCLUSION AT THE CASE
BY ALLOWING THE CRL.P.


     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The Petitioner is before this Court calling in question the

order dated 3.1.2022 passed in C.C.No.15205/2019 pending

before the XII Additional Chief Metropolitan Magistrate,

Bengaluru, whereby the learned Magistrate rejected the

application filed by the petitioner under Section 311 of the

Cr.P.C. seeking further cross-examination of P.W.1.

2. Heard Sri.Ganesha.G., learned counsel appearing for

petitioner.

3. Facts in brief are as follows:

Petitioner and respondent were in a transaction pursuant

to which, the petitioner had issued a cheque in the name of the

respondent. The said instrument having been presented for its

realization was returned for want of sufficient funds. Legal

proceedings were initiated by the respondent against the

petitioner and when the amount was not realized, proceedings

for offences punishable under Section 131 of the N.I.Act, 1881

were initiated by the respondent against the petitoner. IN the

said proceeding the petitioner files an application under Section

311 Cr.P.C. seeking recalling of P.W.1 for further cross-

examination. This application came to be rejected by the trial

Judge on the score, inter alia, that the application is filed only to

drag the proceedings further. It is challenging this order of

rejection, the petitioner is before this Court in the subject

petition.

4. This Court, by its order dated 10.03.2022, granted an

interim order of stay of further proceedings and directed

issuance of emergent notice to the respondent returnable by this

date.

5. The respondent is served and remained unrepresented.

6. The application is filed by the petitioner seeking further

cross-examination of P.W.1 as he was partly cross-examined by

D.W.1 counsel on 12.11.2021. On 12.11.2021 the case was

adjourned, but the cross-examination of P.W.1 by D.W.1 stood

closed. It is at that juncture the petitioner files an application

under Section 311 of the Cr.P.C. This is rejected by the learned

Magistrate, the rejection of which, is called in question in the

subject petition.

7. The petitioner had tendered cogent reasons seeking

recalling of P.W.1 for further cross-examination. Rejection of the

application by the learned trial Judge runs counter to the

judgment rendered by the Apex Court in the case of V.N.PATIL

v. K.NIRANJAN KUMAR1 wherein it is held as follows:

"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:

"311. Power to summon material witness, or examine person present.--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."

(2021)3 SCC 661

14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".

15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17)

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State

of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11)

"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or

(iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court

is of the view that the application has been filed as an abuse of the process of law."

17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."

(Emphasis supplied)

In the light of the law laid down by the Apex Court and the facts

obtaining in the case at hand, I deem it appropriate to grant one

final opportunity to the petitioner to further cross-examine

P.W.1, as it is a facet of fair trial that the parties to the lis have

to be given all adequate opportunity in the trial, more so, if the

party seeking such opportunity is the accused. The grant of

said opportunity will be on imposition of cost.

8. The learned counsel appearing for the petitioner

submits that the next date of hearing is on 19.04.2022 and he

would complete the cross-examination on that day itself. The

submission sounds acceptance.