Karnataka High Court

Mr. Thotappa vs The State Of Karnataka on 17 March, 2022

Bench: M.Nagaprasanna

                           1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF MARCH, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.2251 OF 2022

BETWEEN

MR. THOTAPPA,
AGED ABOUT 27 YEARS,
S/O DHANPAL,
R/AT MULLUKERE,
SEETHA RAMAPURA VILLAGE,
BHADRAVATHI TALUK,
SHIVAMOGGA-577301.                       ... PETITIONER

[BY SRI RAJARAMA S, ADVOCATE]

AND

  1. THE STATE OF KARNATAKA,
     BHADRAVATHI RURAL POLICE STATION,
     REPRESENTED BY SPP
     HIGH COURT BUILDING,
     BENGALURU-560001.

  2. SMT RADHA,
     AGED ABOUT 43 YEARS,
     W/O ABHIMANYU,
     KULLUKERE SEETHARAMPURA VILLAGE,
     BHADRAVATHI TALUK,
     SHIVAMOGGA-577301.                    ... RESPONDENTS

[BY SRI B.J.ROHITH, HCGP FOR R1]
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 22.09.2021 ON
APPLICATION FILED BY ACCUSED NO.1 U/S 311 OF CR.P.C. IN
SPL.C.NO.13/2019     IN     CR.NO.232/2017     REGISTERED          BY
BHADRAVATHI RURAL POLICE STATION, FOR THE OFFENCE P/U/S
366, 344, 506, 212, 376(2)(i)(n) OF IPC AND SECTION 5(i)(ii), 5(L), 6,
17 OF POCSO ACT AND SECTION 9 AND 10 OF PROHIBITION OF
CHILD MARRIAGE ACT, PENDING ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, FTSC-1 (POCSO), SHIVAMOGGA.

     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 22.09.2021 rejecting the application filed under

Section 311 of the Cr.P.C.

2. Heard Shri Rajarama S, learned counsel for the

petitioner.

3. Brief facts leading to the filing of the present petition as

borne out from the pleadings, are as follows:

A complaint is registered on 12.06.2017 by the mother of

the complainant with regard to certain offences which would be

the ones punishable under the POCSO Act, 2012 apart from

Section 363 of the IPC. After registration of the said offences,

the petitioner and the second respondent got married and have

also a child and the proceedings are continued. In the

proceedings, the petitioners files an application seeking recalling

of PWs 1 and 2 for further cross-examination under Section 311

of the Cr.P.C. This is rejected by the court, by the following

order:

"5. As could be seen from the contentions urged in the application in question, the learned defence counsel has come up with the present application seeking to recall PW1 and PW2 for further cross- examination on the sole ground that some important questions were left out in the cross-examination of PW1 and PW2. If the evidence of PW1 and PW2 is looked into, it should be found that PW1 and PW2 have been cross-examined at length by the defence counsel, therefore question of recalling PW1 and PW2 for further cross-examination does not arise. Hence, in the said circumstances, I am of the view that the accused has not made out any tenable grounds to allow the application in question. Accordingly, the point under consideration is answered in the Negative and proceed to pass the following:

ORDER The Application filed by the counsel for the accused No.1 under Section 311 of Cr.P.C. is rejected."

4. A perusal of the order rejecting the application supra

would indicate blatant non-application of mind to the facts and

circumstances under which the application is actually sought by

the petitioner. The petitioner seeks to further cross-examine

PWs 1 and 2 and rest his case as they are now married and are

husband and wife and have a child as well. Since the

proceedings are of the year 2017, the court has rejected the

same on the ground that it would cause delay in conclusion of

the proceedings. The petitioner is an accused in the proceedings

and for an accused to get over the sword of conviction that

would hang on his head, albeit, prima facie, all opportunity

should be afforded. That is the purport of Section 311 of the

Cr.P.C. except in exceptional circumstances, depending upon

the stage at which the application is so preferred. This is the

law laid down by the Apex Court in the case of THE STATE

REPRESENTED BY THE DEPUTY SUPERINTENDENT OF

POLICE VS. N. SEENIVASAGAN reported in AIR 2021 SC

2441, wherein paragraphs 13 to 17 reads as follows:

"13. In our view, having due regard to the nature and ambit of Section 311 of the Code of Criminal Procedure, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the Code of Criminal Procedure, 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". The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.

14. In Manju Devi v. State of Rajasthan MANU/SC/0551/2019 : (2019) 6 SCC 203, a two- Judge bench of this Court noted that an application Under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that "the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness". Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:

"10. It needs hardly any emphasis that the discretionary powers like those Under Section 311 Code of Criminal Procedure 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 Code of Criminal Procedure and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [Vide Mohanlal Shamji Soni v. Union of India, MANU/SC/0318/1991 : 1991 Supp (1) SCC 271 : 1991 SCC (Cri.) 595; Zahira Habibulla H. Sheikh v. State of Gujarat, MANU/SC/0322/2004 : (2004) 4 SCC 158 :

2004 SCC (Cri.) 999; Mina Lalita Baruwa v. State of Orissa, MANU/SC/1265/2013 : (2013) 16 SCC 173 : (2014) 6 SCC (Cri.) 218; Rajaram Prasad Yadav v. State of Bihar, MANU/SC/0663/2013 : (2013) 14 SCC 461 : (2014) 4 SCC (Cri.) 256 and Natasha Singh v. CBI, MANU/SC/0483/2013 : (2013) 5 SCC 741 : (2013) 4 SCC (Cri.) 828]. In Natasha Singh v. CBI [Natasha Singh v. CBI, MANU/SC/0483/2013 : (2013) 5 SCC 741 : (2013) 4 SCC (Cri.) 828], 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: (SCC pp. 746 & 748-49, paras 8 &15)

"8. Section 311 Code of Criminal Procedure 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 Code of Criminal Procedure, 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, Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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."

(emphasis in original)

15. In the present case, the prosecution has sought to produce a copy of the relevant document

pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the Respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Board's approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecution's application are reproduced below:

It is submitted that the case was conducted by Additional Legal Adviser Tr. T. Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr. Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case.

.....

It is submitted that the Exhibit. P1, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction.

It is submitted that at the time of filing the charge sheet the Investigation Officer has

obtained the Approval Order of the Board and not submitted it before this Hon'ble Court.

It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Hon'ble Court for just decision of the case that the sanction was accorded in accordance with law and Rules and Regulations stated in the TANGEDCO.

....

It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Hon'ble Court for arriving just decision of the case.

16. Undoubtedly, we note that the Respondent must have an opportunity to cross-examine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the Respondent by Mr. Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall Under Section 311 was not in order. We accordingly allow the appeals and set aside the impugned judgment and order of the High Court dated 24 June 2019. The applications filed by the prosecution for recall of PWs 1 and 11 shall accordingly stand allowed. The Respondent would also be at liberty to cross-examine these witnesses.

17. Having regard to the pendency of the trial for a long period of time, we order and direct that the trial be completed by 31 July 2021."

Mere delay in conclusion of the proceedings should not be

the reason for rejection of an application under Section 311

Cr.P.C., is what is held by the Apex Court. The primary reason

for the impugned order is delay.

5. For the aforesaid reasons, the following:

ORDER

i) The petition is allowed.

ii) The order passed by the Addl. District & Sessions

Judge, FTSC-I (POCSO), Shivamogga in

Spl.C.No.13/2019 dated 22.09.2021 on an application

filed by the petitioner / Accused No.1 under Section