Karnataka High Court

Muthuraju vs State Of Karnataka on 30 June, 2022

Bench: M.Nagaprasanna

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 30TH DAY OF JUNE, 2022

                      BEFORE

   THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        CRIMINAL PETITION No.5819 OF 2022

BETWEEN

MUTHURAJU
S/O NAGARAJU
AGED ABOUT 26 YEARS,
R/AT KADANURU VILLAGE
MADURE HOBLI
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT
PIN NO.
                                      ... PETITIONER

[BY SRI. A.N.RADHAKRISHNA, ADV.]

AND

STATE OF KARNATAKA
BY WOMEN POLICE
DODDABALLAPURA
REP BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU
                                     ... RESPONDENT

[BY SMT. K.P.YASHODHA, HCGP]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED    20.06.2022  IN  SPL.C.C.NO.252/2021  NOW
PENDING ON THE FILE OF LEARNED ADDITIONAL
                                     2



DISTRICT AND SESSIONS JUDGE, FTSC-I, BENGALURU BY
AND ALLOW THE APPLICAITON FILED BY THE PETITIONER
U/S 311 FO CR.P.C. TO RECALL THE PW-1,2 AND 17 AND
PERMIT THE PETITIONER - ACCUSED TO CROSS EXAMINE
THEM.

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

                            ORDER

Heard the learned Sri.A.N.Radhakrishna,

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

learned HCGP for the respondent -State.

2. The petitioner is before this Court calling in

question the order dated 20.06.2022 by which an

application filed by the petitioner under Section 311 of

Cr.P.C for recalling of PWs.1, 2, 8 and 17 is turned

down.

3. The brief facts as projected by the

prosecution are as follows:

The petitioner is the accused facing charges for

the offence punishable under Section 12 of the

Protection of Children from Sexual Offences Act, 2012

(for short 'the Act') before the Special Court. The

petitioner files an application seeking to recall

prosecution witnesses 1, 2, 8 and 17. This is rejected

by the learned Special Judge on 20.06.2022 by the

following order:

"Accused has filed application u/s 311 of Cr.P.C. to recall P.W.1, 2, 8 and 17 for the purpose of cross examination. Learned SPP filed objections and opposed the IA. I have heard the arguments and perused the records.

P.W.1 is the complainant and father of the victim girl. He was examined before the court on 17.12.2021. Learned counsel for the accused cross examined him also.

P.W.2 is the victim girl. She was examined on 17.12.2021. Learned counsel for accused has cross examined P.W.2 on the same date.

P.W.8 is the Mahazar witnesses. However he turned hostile. Learned counsel for the accused submits no cross examination.

P.W.17 is the Investigation Officer. He was examined on 20.04.2022. On that date counsel for accused prays time for cross examination. Since no grounds were made out the time was rejected.

Absolutely there are no grounds mentioned in the application why witnesses have to be recalled. It is well settled that the victim girl shall not be called repeatedly to testify. Further P.W.1 had already been cross examined and no grounds stated in the application to recall P.W.1.

As stated earlier P.W.8 turned hostile and the counsel for the accused has categorically stated that he has no cross examination of P.W.8. Hence question of recalling P.W.8 does not arise.

P.W.17 is the IO. On the day of his examination the counsel for the accused could have cross examined him. However there was no reason for non cross examination of P.W.17. Even in the application also the counsel has not stated any reasons whey he could not cross examine P.W.17 when he was examined before the court. Though P.W.17 had examined on

20.04.2022, the accused has filed application after conclusion of the trial. The accused just to drag the proceedings has filed the above application. There are no merits in the application. Hence, I proceed to pass the following:

ORDER Application filed by the accused u/s 311 of Cr.P.C. to call P.W.1, 2, 8 and 17 is rejected.

Posted to 313 statement. Call on 29.06.2022".

4. A perusal of the order would indicate that

PW.1 is the complainant - father of the victim girl. PW.2

is the victim girl. PW.8 is the mahazar witness was

turned hostile. PW.17 is the Investigating Officer. Out of

the four, PW.8 would not be necessary for

cross-examination, as he has already turned hostile.

PW.2 is the victim girl, who has already been

cross-examined on 17.12.2021. Looking at the age of

the victim girl, further cross-examination cannot be

permitted in light of Section 33(5) of the Act. Insofar as

the other two are concerned i.e., PW.1 - father of the

victim girl and the PW.17 - Investigating Officer, the

matter merits consideration.

5. The learned counsel for the petitioner

submits that the case, is writing of letters to the victim

girl, which has been brought under the ambit of POCSO

Act and is a case and counter case, as the petitioner has

complained against the father of the victim girl.

Therefore, this circumstance would be necessary to be

put across to the prosecution witness, the father of the

victim girl.

6. Insofar as PW.17 - Investigation Officer, he is

never permitted to be cross-examined and the

examination is closed. Therefore, it is a case, where the

Investigation Officer has not even

cross-examined by the accused. Therefore, the

petitioner is entitled for an opportunity to further

cross-examine PW.1 and cross examine PW.17, failing

which, it would defeat very spirit of Section 311 of

Cr.P.C. as interpreted in the judgment rendered by the

Apex Court interpreting Section 311 of Cr.P.C in the

case of V.N.Patil vs. K. Niranjan Kumar reported in

(2021) 3 SCC 661, wherein the Apex Court has

delineated the importance of Section 311 of Cr.P.C., qua

the offences that are alleged, unless it becomes an

abuse of process of law. The Apex Court has held as

follows:

"13. After going through the rival submissions and perusal of the record of the case with reference to the law applicable, in our considered view, the judgment impugned before us is unsustainable in law, and we find it difficult to approve it.

14. 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 presentAny 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."

15. 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.

16. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC 136:

"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."

17. This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another 2014(13)

SCC 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation 2019(14) SCC 328. The relevant paras of Swapan Kumar Chatterjee(supra) are as under:−

"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."

In the light of the facts obtaining in the case at

hand and the judgment rendered by the Apex Court,

I pass the following:

ORDER

i) The criminal petition is allowed.

ii) The order dated 20.06.2022 in

Spl.C.C.No.252/2021 pending on the file of the

learned Additional District and Sessions Judge,

FTSC-I, Bengaluru stand quashed.

iii) The petitioner is permitted to further

cross-examine PW.1 and cross-examine PW.17

on the date on which the learned Sessions