Muniraju @ Somanna vs State Of Karnataka
2022 Latest Caselaw 11295 Kant

                                                      -1-




                                                             CRL.P No. 588 of 2022


                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 8TH DAY OF AUGUST, 2022

                                                BEFORE
                              THE HON'BLE MR JUSTICE M.NAGAPRASANNA


                                CRIMINAL PETITION NO. 588 OF 2022

                       BETWEEN:

                           MUNIRAJU @ SOMANNA
                           S/O GOVINDA
                           AGED ABOUT 34 YEARS,
                           R/AT NO.28/7, 2ND FLOOR
                           GOVINDAPPA BUILDING, 3RD CROSS
                           LIBRARY ROAD, KANAKAPURA MAIN ROAD
                           THALAGHATTAPURA
                           BANGALORE-560109

                                                                       ...PETITIONER
                       (BY SRI. M KRISHNE GOWDA, ADVOCATE)

                       AND:

                           STATE OF KARNATAKA
                           STATE BY THALAGHATTAPURA POLICE
                           HIGH COURT GOVT PLEADER
                           HIGH COURT OF KARNATAKA
                           BANGALORE-560 001

Digitally signed by                                                  ...RESPONDENT
PADMAVATHI B K
Location: HIGH COURT
                       (BY SMT. K.P.YASHODHA, HCGP)
OF KARNATAKA

                            THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE
                       THE ORDER OF RECALLING THE WITNESS PW-1 DATED 10.01.2022
                       AND PW-7 DATED 20.09.2021 PASSED BY THE VIII ADDL. DISTRICT
                       AND SSSIONS JUDGE, BANGALORE RURAL IN S.C.NO.36/2018
                       ARISING OUT OF CR.NO.145/2017 OF THALAGHATTAPURA POLICE.

                             THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
                       DAY, THE COURT MADE THE FOLLOWING:
                                   -2-




                                             CRL.P No. 588 of 2022


                                ORDER

The petitioner is before this Court calling in question an

order dated 10.01.2022 passed by the learned Sessions Judge

in S.C.No.36/2018, declining to accept the application filed

under Section 311 of Cr.P.C., seeking recall of PW.7, while

allowing an application qua other witnesses that were sought to

be recalled.

2. Heard Sri. M.Krishne Gowda, learned counsel

appearing for the petitioner and Smt. K.P.Yashodha, learned

HCGP for the respondent.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as follows:

The complaint is registered on 13.04.2017 alleging

offences punishable under Sections 498A and 302 of IPC. The

issue is not with regard to the merit of the matter. In the

proceedings pending in S.C.No.36/2018, the petitioner files an

application seeking recalling of several witnesses under Section

311 of Cr.P.C. The application of the petitioner insofar as it is

germane for the present lis reads as follows:

CRL.P No. 588 of 2022

"4. The PW 7 who is allegedly the eye witness to the alleged incident was subjected to cross examination on 30/1/2019. He is yet to be questioned pertaining to the structural aspect of the building in which the alleged incidents is said to have been taken place. Further some of the statements deposed by PW 7 is his evidence is not forthcoming in his 161 Crpc Statement and the same was touched in his prior cross examination. It is also vital that the PW 7 has spoken about neighbors who were present at the time of alleged incident. The Accused need to cross examine the PW 7 on some of the most vital aspects in order to establish his defence and the PW 7 being the prime witness as he is portrayed as eye witness by the prosecution. Therefore it is of utmost importance that the PW 7 is recalled for being subjected to cross examination."

4. The application is filed on the score that P.W.7, who

was the only eyewitness to the incident was subjected to

cross-examination on 30.01.2019 and certain questioning with

regard to the incidents that had taken place on 13.04.2017 had

not been made against the said witness. It is also averred in

CRL.P No. 588 of 2022

the application that there were varying statements by PW.7

made before the Police and made before the Court. It is in that

light the application had been filed. The concerned Court by its

order dated 20.09.2021 allows application insofar as recalling

of PWs.12, 13, 17, 20 and 22 but declines the application

insofar as PW.7 is concerned on the score that he had already

been cross-examined and the application is filed only to

protract the proceedings. The reason rendered by the

concerned Court reads as follows:

"5. POINT NO.1: I have perused the chief examination of P.W.7. He examined before the court on 21.01.2019. Thereafter the opportunity was given to the accused to cross-examine P.W.7. Subsequently, on adjourned date, i.e., on 30.01.2019, P.W.1 present before the court and he cross-examined by the counsel for accused. Thereafter the matter continued from 2019 till 2001. The petitioner has not chosen to recall the witness. It shows the present application in so far as P.W.7 is concerned, is filed only with an intention to protect the proceedings. As could be seen from the application dated 23.07.2021, the accused has been filed application to recall P.W.7 and at that time, no attempt was made to recall

CRL.P No. 588 of 2022

P.W.7. The order sheet also reveals that as per application dated 04.03.2021, the accused filed application to recall P.W.1, said application came to be rejected by the court. At that time also no attempt has made to recall P.W.7. If really, accused had grievance in so far as evidence of P.W.7 is concerned, he would have file said application immediately after closing evidence of P.W.7. At the fag end, the attempt is made to recall P.W.7. When the application for recall of other witnesses in earlier occasion was filed, no attempt was made to recall P.W.7 which would clearly shows the intention of the accused. Hence, I feel it is not proper to encourage such kind of attempt by the accused. No prejudice will cause to the accused if prayer to recall P.W.7 is rejected. Because P.W.7 already cross-examined in the year 2919 itself. Under the circumstances, the application filed by the accused to recall P.W.7 is liable to reject with cost of Rs.1,000/-"

The reason so rendered is on the face of it untenable as if

the proceedings are not protracted by allowing application

insofar as other witnesses are concerned, it can be hardly

justified as to how further cross-examination of PW.7 would

protract the proceedings. Be that as it may.

CRL.P No. 588 of 2022

5. The right of the accused who is facing a proceeding

under Section 302 of IPC should also be recognized, which

would be in the realm of fair trial. The Apex Court in the case

of V.N. PATIL V. K. NIRANJAN KUMAR1, has 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

CRL.P No. 588 of 2022

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)

CRL.P No. 588 of 2022

"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

CRL.P No. 588 of 2022

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.

- 10 -

CRL.P No. 588 of 2022

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

- 11 -

CRL.P No. 588 of 2022

circumspection to meet the ends of justice."

(Emphasis supplied)

6. In the light of the judgment of the Apex Court in

the case of V.N.Patil (Supra) and also the fact that the

petitioner is facing charges for offences punishable under

Sections 302 read with Section 498A of IPC, one more

opportunity to cross-examine the only eyewitness to the

incident i.e., PW.7 in the considered view of this Court is

required to be permitted, and is permitted. This shall be the

last of the opportunity that the petitioner would get seeking

further cross-examination of PW.7.

7. Learned counsel for the petitioner submits that the

ensuing date for further proceedings before the concerned

Court is 12.08.2022. Therefore, the concerned Court shall on

12.08.2022 determine the date on which PW.7 is to be recalled

for cross-examination and pass an appropriate orders in

accordance with law.

- 12 -

CRL.P No. 588 of 2022

8. For the aforesaid reasons, the following:

ORDER

i. The Criminal Petition is allowed.

ii. The order dated 10.01.2022, passed by the VIII Additional District and Sessions Judge, Bengaluru Rural in S.C.No.36/2018, insofar as it rejects recalling of PW.7 for further cross-examination, is quashed.

iii. The application so filed by the petitioner is allowed in its entirety.

iv. The concerned Court is directed to fix a date for further cross-examination of PW.7 and the said date will be the only opportunity to the petitioner to cross-examine PW.7.

v. It is made clear, no further application under Section 311 of the Cr.P.C. would be permitted to cross-examine PW.7, yet again.

Sd/-

JUDGE

KG