Sri Bheemanna vs State By Karnataka By
2022 Latest Caselaw 9541 Kant

                           1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF JUNE, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.5162/2022

BETWEEN

SRI. BHEEMANNA,
S/O SUBBANNA,
AGED ABOUT 24 YEARS,
R/AT KAKKESAGERA,
SHAHAPURA TALUK,
YADHAGIRI DISTRICT,
KARNANATAKA - 585 201
                                              ... PETITIONER

[BY SRI.CHETHAN BABU D., ADVOCATE]

AND

1.    STATE OF KARNATAKA BY
      KAGGALIPURA POLICE STATION,
      BENGALURU RURAL.
      REPRESENTED BY
      STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      BANGALORE - 560 001.

2.    SMT. GEETHA,
      W/O BASAVARAJU,
      AGED ABOUT 36 YEARS,
      R/AT K. GOLLAHALLI VILLAGE,
      KENGERI HOBLI,
      BENGALURU SOUTH TALUK,
      BENGALURU CITY,
                              2



     KARNATAKA - 560 060.
                                               ... RESPONDENTS

[BY SRI.K.S.ABHIJITH, HCGP FOR R1]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO a. SET ASIDE THE ORDER ON U/S 311 OF
CRPC     APPLICATION    ORDER     DATED    01.06.2022  IN
SPL.C.C.NO.168/2020 OF KAGGALIPURA P.S PASSED BY THE
HONBLE ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-1,
BANGALORE RURAL; AND b. PASS AN ORDER RECALLING THE
WITHNESS PW-1, 2, 3, 6, 7, 8 AND PERMIT THE PETITIONER
COUNSEL TO LEAD THE CROSS EXAMINATION OF THE SAID
WITNESSES IN SPL.C.C.NO.168/2020 OF KAGGALIPURA P.S.

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

                             ORDER

The petitioner calls in question an order dated 01.06.2022

passed by the Additional District and Sessions Judge, FTSC-1,

Bengaluru Rural, Bengaluru in Spl.C.C.No.168/2020 under

Section 311 of the Cr.P.C.

2. The petitioner an accused facing trial for offence

punishable under Section 8 and 12 of the Protection of Children

from Sexual Offences Act, 2012 and Section 366(A) of the IPC.

3. Heard Sri. Chethan Babu D., learned counsel

appearing for the petitioner, Sri. K.S. Abhijith, learned HCGP

appearing for respondent No.1 and have perused the material on

record.

4. The issue in the case at hand is not with regard to

the merit of the matter, but an application being filed by the

petitioner seeking recall of the several witnesses for

cross-examination. The application filed by the petitioner reads

as follows:

"The Accused humbly begs to submits as follows: The Accused person submits that, in the above case CW-1, 2, 3, 5, 7, 8, 9, 12 and 13 has been examined and examination in chief is done in different dates and his counsel was very much present before the court and prayed time for cross examination of witnesses, but the Hon'ble court has rejected the prayer of his counsel and cross examination of witnesses has been taken as nil. Hence this application to Recall the CW-1, 2, 3, 5, 7, 8, 9, 12 and 13 for cross examination.

2. The Accused person submits that, CW-1, 2, 3, 5, 7, 8, 9, 12 and 13 are the main witness to this case and the entire case stands only on these witnesses. hence the cross-examination of CW-1, 2, 3, 5, 7, 8, 9, 12 and 13 is very much necessary to prove the defense of the Accused person and as such the Hon'ble court be pleased to permit the Accused person to cross examine the said witnesses.

3. The Accused person submits that, due to health issues he couldn't come and give proper instruction to his counsel for cross examination of witnesses, hence his counsel has prayed time to cross examine the witnesses, but the Hon'ble court has rejected the prayer of their counsel and the cross examination of witnesses has taken as nil. The Accused further submits that there was no intention to delay the proceeding, but only for the bonafide reasons his counsel has prayed for time to cross examine the witnesses.

4. If the cross-examination of CW-1, 2, 3, 5, 7, 8, 9, 12 AND 13 is not allowed the Accused will suffer irreparable, loss, damage and injury and no hardship or inconvenience is going to cause to other side.

5. The Accused person submits that, he have a good defense and he shall disprove the claim of the complainant. That, he have a documentary as well as other evidence to show that he is innocent.

6. The Accused person submits that, if this application is not allowed the Accused person will suffer immensely. That, the Accused person has made out a good cause to cross examination of CW-1, 2, 3, 5, 7, 8, 9, 12 and 13 and to permit to lead his evidence for fair trial.

Wherefore, the Accused person humbly prays before this Hon'ble court to be pleased to, Recall the witnesses and to permit the Accused persons to lead cross-examination of CW-,1, 2, 3, 5, 7, 8, 9, 12 and 13 in the above case to meet the ends of justice."

5. Learned Sessions Judge taking up the application for

its consideration rejects the same on the following ground:

"24.05.2022: Accused present. Statement recorded. Counsel for the accused Counsel for the accused filed application U/s.311 of

Cr.P.C. Postedt o objection to I.A. and for arguments on merits.

Call On: 01.06.2022 Sd/-

Addl. District & Sessions Judge, FTSC-1

1-6-2022: Accused absent. E.P. filed.

Accused is exempted for the day.

Learned SPP filed objection to the application filed U/s.311 of Cr.P.C. On perusal of the application the accused sought recall of C.W.3, 8, 9 for cross-

examination. However, prosecution has not at all examine C.W.3, 8, 9. This attitude of the accused shows just to drag on the proceedings he has been filing the application. Further I do not find any merits in the application.

Accordingly, application is rejected.

Posted to arguments on merits.

Call On: 02.06.2022.

Sd/-

Addl. District & Sessions Judge, FTSC-1"

6. The reason rendered by the learned Sessions Judge

to reject the application under Section 311 of the Cr.P.C. is that,

CWs.3, 8 and 9 are not even examined by the prosecution. For

grant of an opportunity for cross-examination. The application

was in specific and was not restricted to CWs.3, 8 and 9, but

was sought recalling of CWs.1, 2, 3, 5, 7, 8, 9, 12 and 13.

7. The learned Sessions Judge without looking into the

application rejects the entire application on the score that only

CWs-3, 8 and 9 have not been examined, thus, there is no

opportunity for cross-examination. On the face of it, the order of

the learned Sessions judge is illegal and contrary to what was

sought. The spirit of Section 311 of the Cr.P.C. ought not to have

been forgotten by the learned Sessions Judge, as it is an

opportunity to cross-examination by recalling the witnesses for

cross-examination and ultimate discovery of the truth. This is

the purport of the said Section as is held by the Apex court in

the case of V.N. PATIL V. K. NIRANJAN KUMAR1, wherein the

Apex Court holds 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."

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

(2021) 3 SCC 661

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 judgment rendered by the Apex Court

supra, the application ought to have been given consideration

atleast for the witnesses that have already been examined and

permit them to be cross-examined.

8. Therefore, it is the trial Court shall fix a date for

cross-examination of those witnesses, who have already been

examined by the prosecution and the petitioner shall

cross-examine those witnesses on that particular date as fixed

by the learned Sessions Judge.

9. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. The application filed by the prosecution stands allowed.

iii. The prosecution is permitted to cross-examine CWs.1, 2, 3, 5, 7, 8, 9, 12 and 13 on a particular date fixed by the learned Sessions Judge. iv. It is made clear that the petitioner would not have any further opportunity of filing applications and delaying the proceedings.

Ordered accordingly.

I.A.No.1/2022 is disposed, as a consequence.

Sd/-

JUDGE

SJK