Shri Basavraj vs State Of Karnataka
2022 Latest Caselaw 9292 Kant

                               1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 22ND DAY OF JUNE, 2022

                       BEFORE

   THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          CRIMINAL PETITION No.45 OF 2020


BETWEEN

SHRI BASAVRAJ
SON OF LINGARAJU,
AGED 26 YEARS,
R/AT: DASARAHALLI
CHENNARAYAPATTANA TALUK,
HIRESAVE HOBLI,
HASSAN - 573 124
AND ALSO AT
NO.11/1,
OPPOSITE MOHAN BAR
AVALAHALLI
BANGALORE - 560 026
                                     ... PETITIONER

[BY SRI. GURU PRASANNA S., ADV.]

AND

STATE OF KARNATAKA
REPRESENTED BY
KG NAGAR POLICE STATION
560 019
                                    ... RESPONDENT

[BY SRI.K.S. ABHIJITH, HCGP]
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 27.06.2019 (ANNEXURE-A) PASSED BY
LEARNED LIII ADDITIONAL CITY CIVIL JUDGE IN
SPL.C.C.NO.139/2015 AND TO PASS AN ORDER
RECALLING PW4 - SOUBHAGYA, PW3 - SIDDARAJU,
PW6 - H.S. RAMAKRISHNA AND PW7 - SMT.SUMA AND
PERMIT THEM TO CROSS- EXAMINE BY ACCUSED NO.2/
PETITIONER.

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

                        ORDER

The petitioner is before this Court calling in

question an order dated 27.06.2019 passed by the

LIII Additional City Civil and Sessions Judge, Bangalore

in Spl.C.C.No.139/2015, rejecting an application filed

by the petitioner seeking recall of the prosecution

witnesses - PWs.3, 4, 6 and 7.

2. Heard Sri.Guru Prasanna S., learned counsel

appearing for the petitioner and Sri. K.S. Abhijith,

learned HCGP for the respondent.

3. The petitioner is accused No.2 in a proceeding

instituted for offences punishable under Sections 363,

366A, 376, 342 and 506 of IPC and Section 5(C) read

with Section 6 of Protection of the Children from Sexual

Offences Act, 2012 (for short 'POCSO Act'). On

06.05.2015, charges were framed against the accused

and on 27.08.2018, the present accused No.2 files an

application seeking recall of PWs.3, 4, 6 and 7 for

further cross-examination, notwithstanding the fact

that they were already cross-examined on 09.12.2015.

The said application is taken up by the Special Court in

the year 2019 only to decline the request of the

petitioner for recalling on the ground that earlier

opportunity that was granted had not been utilized by

the petitioner to cross-examine witnesses. It is this

order that drives the petitioner to this Court in the

subject petition.

4. Learned counsel for the petitioner submits

that further cross-examination of these witnesses is

imperative, in the light of the fact that the petitioner is

facing offences which could result in punishment of

imprisonment which could be 7 years and more and the

reason rendered by the Court for rejecting the

application runs counter to the order sheet, as the

petitioner was present at the time when the opportunity

of cross-examination was sought to be given to the

petitioner.

5. Learned HCGP would however refute the

submissions to contend that it would delay the

proceedings, if such applications are repeatedly filed

and be granted and further contends that the victim

should not be recalled time and again, as there is a

specific bar under Section 33(5) of the POCSO Act and

would seek dismissal of the petition.

6. I have given my anxious consideration to the

contentions of respective learned counsel and have

perused the material on record.

7. It is not in dispute that the petitioner is

accused No.2 and is facing trial for the offences

punishable as afore-quoted. An application is filed by

the petitioner on the ground that there has been short

cross-examination of the aforesaid witnesses and if they

would require further cross-examination.

8. The learned Special Judge by his order dated

27.06.2019 rejects the application on the following

ground:

"8. Points No.1 & 2: The Accused No.1 sought for recall of PWs 2 and 4 for further cross-examination, who are examined before this Court on 7.11.2015 and 9.12.2015 respectively. PW-2 Siddaraju who is examined on 9.12.2015 and PW-4 Sowbhagya, On the same day, both of them were cross-examined in detail on behalf of

Accused No.1. The cross-examination on behalf of Accused No.2 was taken as nil as the Counsel was not represented, inspite of giving opportunity to cross-examine both of them. However, Accused No.2 sought for recall of PWs 3, 4, 6 and 7, but after giving opportunity to the Counsel, their cross-examination also taken as nil. At present, I do not find any sufficient grounds to allow the applications and to recall PWs 2 to 4, 6 and 7 respectively as prayed by Accused No.1 and 2. Hence, in the absence of bonafide reasons, I am of the opinion that, the applications are deserves to be rejected and I answer points No.1 and 2 in the Negative.

9. Point No.3:- In the result, I proceed to pass the following:

ORDER

The applications filed u/S 311 of Cr.P.C on behalf of the Accused No.1 and 2 are hereby dismissed. "

9. The cross-examination of PWs.3, 4, 6 and 7

were taken as nil, is what is indicated in the order. The

order sheet maintained for the particular date reads as

follows:

"09.12.2015:

Accused No. 1 & 2 present. Advocates for the accused present.

Cws 1 & 2 examined as pw 3 & 4. Time granted for cross examination on cost of Rs.500/-

Exhibit P6 & 7 marked.

Advocate for the accused has filed application u/s 231{2} of crpc and 311 of crpc.

Objections by PP and Cross examination of PW 3 & 4 by 26-12 2015

26.12.2015:

Accused No. 1 & 2 present Advocates for the accused present. PW 3 & 4 present.b/o PP is on leave.

witness prays time.

Objections and Cross of PWs 3 & 4 returnable by 7-1-2016"

Accused Nos.1 and 2 were present and the

counsel representing them were also present. Therefore,

the reason rendered by the learned Special Judge inter

alia is erroneous.

10. The spirit of Section 311 of Cr.P.C., is to

afford all opportunity to the accused or the prosecution

to discover at the truth of the matter. Therefore, such

applications if not repeatedly filed only to drag the

proceedings should ordinarily be permitted. This is the

interpretation of the said provision of law by the Apex

Court 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, by filing repeated applications.

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."

11. The other circumstance which according to

the learned HCGP is on the ground that the victim

should not be repeatedly called for cross-examination,

as it would be contrary to Section 33(5) of the POCSO

Act.

12. The age of the victim at the time when the

incident happened was 15 years in 2015, this was 7

years ago. Today, the victim has crossed the age of 18

years and rigor under Section 33(5) of the POCSO Act

gets diluted once the victim crosses the age of 18 years.

13. Therefore, the said submission is also

unacceptable. The petitioner shall be permitted to

further cross-examine witnesses - PWs.3, 4, 6 and 7 on

a particular date that is to be fixed by the learned

Special Judge and that shall be only opportunity to the

petitioner to further cross-examine the witnesses and

the petitioner shall not seek any adjournment on the

date fixed by the learned Special Judge for further

cross- examining the aforesaid witnesses.

14. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. The impugned order dated 27.06.2019 passed by the LIII Additional City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.139/2015, stand quashed.

iii. The learned Special Judge shall fix the date of the cross-examination of the witnesses PWs.3, 4, 6 and 7 and the petitioner will bear the cost of travel of those witnesses by depositing the same before the Court.

In view of the disposal of the main petition,

I.A.No.2/2019 also stands disposed.

Sd/-

JUDGE

KG