Karnataka High Court

Smt.Saroja H vs Sri.C.H.Krishnappa on 15 March, 2022

Bench: M.Nagaprasanna

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF MARCH, 2022

                             BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.1452 OF 2022
BETWEEN:

SMT. SAROJA H.,
W/O NATARAJA I.M.,
AGED ABOUT 41 YEARS
PROPRIETOR
M/S PEACOCK TRENDS
R/AT NO. 30/22,
22ND MAIN, SRINIVASANAGAR
NANDINI LAYOUT, BENGALURU - 560 029.

NOW RESIDING AT:
OPPOSITE SBI BANK,
GOWRIBIDANUR ROAD,
MADHUGIRI TOWN AND TALUK,
TUMAKURU DISTRICT - 572 132.
                                                  ... PETITIONER
(BY SRI RAMACHANDRA R.NAIK, ADVOCATE)

AND:

SRI.C.H.KRISHNAPPA
S/O LATE. HANUMAIAH
AGED ABOUT 66 YEARS
R/AT NO. 239, B.D.A. LINE,
3RD CROSS, 34TH MAIN,
NARASHIMSWAMY LAYOUT,
NANDINI LAYOUT,
BENGALURU - 560 096.
                                             ... RESPONDENT
(BY SRI GIRISH M.K., ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. SET ASIDE THE JUDGMENT AND ORDER
DATED 01.09.2021 PASSED BY THE LEARNED XIII ACMM,
BANGALORE ON APPLICATION U/S 311 OF CRPC IN
C.C.NO.23401/2016; B. TO ALLOW THE APPLICATION U/S 311 OF
THE CRIMINAL PROCEDURE CODE FILED BY THE PETITIONER TO
RE-CALL THE PW.1 FOR FURTHER CROSS EXAMINATION ON THE
FILE   OF   THE    LEARNED    XIII ACMM,  BANGALORE    IN
C.C.NO.23401/2016.


     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 01.09.2021, in C.C.No.23401/2016, passed by the

XIII Additional Chief Metropolitan Magistrate, Bengaluru,

rejecting the application filed under Section 311 of Cr.P.C..

2. Heard Sri Ramachandra R. Naik, learned counsel for the

petitioner, Sri Girish M.K., learned counsel for the respondent

and perused the material on record.

3. Sans details, facts in brief are as follows:

The respondent is the complainant and the petitioner is

the accused, in the proceedings instituted under Section 138 of

the Negotiable Instruments Act, 1881 (for short 'N.I.Act'). The

trial was set for examination and cross-examination. A perusal

of the order sheet, depicts that the cross-examination of PW.1

was complete on 25.03.2021, after completion, the petitioner

comes to know that PW.1 was not cross-examined completely

and therefore, files an application under Section 311 of the

Cr.P.C. seeking recall of PW.1 for further cross-examination.

This application having been turned down has driven the

petitioner to this Court in the subject petition.

4. The primary reason rendered by the Court to reject the

application inter alia is that, the granting of permission for

further cross-examination of PW.1 would further delay the

process and there is no explanation in the application submitted

as to why complete cross-examination could not be done at the

outset.

5. Learned counsel for the petitioner submits that further

cross-examination of PW.1 is an imperative in the light of the

fact that he was not fully cross-examined due to the learned

counsel suffering from COVID - 19 and the entire deposition was

not available at the hands of the learned counsel who cross-

examined PW.1.

6. The reasoning rendered by the Court to reject the

application would fall foul of the judgment of the Apex Court in

the case of V.N. PATIL Vs. K. NIRANJAN KUMAR & ORS.

reported in (2021) 3 SCC 661, 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."

(Emphasis supplied)

In the afore-extracted judgment, the Apex Court has held

that mere delay alone should not be a driving factor to decline

the application submitted under Section 311 of Cr.P.C. The aim

of the Court is to discover the truth. Power under Section 311 of

the Cr.P.C. should be exercised for strong and valid reasons,

which I do find in the case at hand as mere delay in concluding

the proceedings has driven the learned Magistrate to dismiss the

said application.

7. In the light of the facts obtaining in the case at hand

and the judgment rendered by the Apex Court (supra), I deem it

appropriate to accord one opportunity to the petitioner to further