Karnataka High Court

H.B. Deepak S/O. Sri H L ... vs State Of Karnataka on 25 January, 2022

Bench: M.Nagaprasannapresided Bymnpj

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 25TH DAY OF JANUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

              CRIMINAL PETITION NO.102400/2021

BETWEEN:

H.B. DEEPAK
S/O. SRI H L BASAVARAJAPPA
AGED ABOUT 44 YEARS,
RESIDING AT 'CHAITRA NILAYA'
CHENNABASAPPA KRUPA
3RD CROSS, 1ST STAGE
60 FT MAIN ROAD, VINOBANAGARA
34TH WARD, SHIVAMOGGA-577201

                                                 ...PETITIONER.

(BY SHRI VINAY S KOUJALAGI, ADVOCATE.)


AND:

STATE OF KARNATAKA
REP. BY ITS POLICE SUB INSPECTOR
HOSAPETE RURAL POLICE
STATION, HOSAPETE,
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF BUILDING
DHARWAD BENCH, DHARWAD-580001

                                                 ...RESPONDENT.

(BY SHRI RAMESH CHIGARI, HCGP.)
                                 2




      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 27.11.2021 ON THE APPLICATION UNDER
SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HOSAPETE C/C AND ALLOW THE APPLICATION UNDER SECTION 311
OF   CR.P.C.,  FOR     CROSS  EXAMINATION   OF   PW.10  IN
C.C.NO.104/2014, ETC.,.

      THIS PETITION COMING ON FOR DICTATING ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:


                             ORDER

The petitioner is before this Court calling in question the

rejection of the application filed by the petitioner under section

311 of the Code of Criminal Procedure, 1973, seeking recalling

of prosecution witness no.10 (PW.10) in C.C.No.104/2014, on

the file of Prl. Senior Civil Judge and JMFC, Hosapete C/C, for

the purpose of further cross-examination.

2. Heard Shri Vinay S. Koujalagi, the learned counsel

appearing for the petitioner and Shri Ramesh Chigari, the

learned HCGP appearing for the respondent State.

3. Shorn of unnecessary details, facts in brief are as

follows:

The petitioner is facing trial in C.C.No.104/2014 for the

offences punishable under Sections 406, 468, 471, 420 of the

Indian Penal Code, 1860. On 29.10.2021, the petitioner files an

application invoking section 311 of the Cr.P.C. seeking recalling

of prosecution witness no.10. The trial Court by order dated

27.11.2021, rejects the application filed by the petitioner on the

score that the petitioner has been given ample opportunity to

cross-examine the witness and on the ground that certain

important questions have been omitted, the witness cannot be

recalled. It is this order that is called in question in the subject

petition.

4. The learned counsel appearing for the petitioner

submits that recalling of the prosecution witness no.10 is

imperative as it is his evidence that would go to the root of the

allegations against the petitioner. The petitioner did not have

complete opportunity of cross examining the witness as he was

cross-examined during the period in which the petitioner had

suffered COVID and could not completely instruct the counsel to

cross-examine the prosecution witness no.10 and would seek

for an opportunity to recall the witness at the cost that would be

imposed by this Court.

5. I have given my anxious consideration to the

submission made and have perused the material on record.

6. The ground urged in the application seeking

recalling of the witness is that the petitioner had suffered COVID

and was not in a position to instruct the counsel due to the lock

down clamped in the State, in view of the prevailing situation of

COVID-2019 and also has submitted that in view of the shortfall

in instructions, important questions that ought to have been

put, have been omitted. Though it can hardly be said to be a

circumstance that would convince this Court to order recall of

the prosecution witness no.10, I deem it appropriate to grant

one opportunity for recalling and cross-examination of PW.10

only on the ground that at the time when the cross-examination

done, the City or the State had been engulfed with COVID-19.

7. Section 311 of the Cr.P.C. would indicate that at any

stage in the proceedings the witness may be recalled. The

words 'at any stage' assumes greater significance as

examination or cross-examination and the defence of the

accused should not be crippled in any manner.

8. This is the law laid down by the Apex Court in the

case of Manju Devi vs. State of Rajasthan and another,

reported in (2019) 6 SCC 203, wherein the Apex Court holds

as follows:

10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, (2013) 5 SCC 741, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:-

"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-

examine any person who has already been examined if his evidence appears

to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

*** *** ***

15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair

advantage to the opposite party.

Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any Court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

15. In the given set of facts and circumstances, we are clearly of the view that the Trial Court disposed of the application under Section 311 CrPC on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction under Section 482 CrPC while overlooking and ignoring the material and

relevant aspects of the case. In our view, the said application under Section 311 CrPC deserves to be allowed.

9. In the light of the law laid down by the Apex Court,

mere delay or protraction of the proceedings should not be the

ground on which the application under section 311 should be

considered or rejected by the Court before whom the application

is so filed. On the touchstone of the principles laid down by the

Apex court in the aforesaid judgment if the impugned order is

considered, it would fall foul of what is ordered by the Apex

Court in the aforesaid cases. Therefore, I deem it appropriate to

grant the petitioner another opportunity to cross examine

PW.10 on imposition of costs.

10. For the aforesaid reason, the following: