IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI CRIMINAL PETITION NO.4942/2019 BETWEEN:
MR B R SATYANARAYANA SON OF SRI B RANGANNA AGED ABOUT 83 YEARS RESIDING AT:
NO.1, FLAT NO.A-4 2ND MAIN ROAD 3RD BLOCK, THYAGARAJANAGAR BANGALORE – 560028 REPRESENTED BY HIS GPA HOLDER SRI B R SURESH. … PETITIONER (BY SRI.BALAKRISHNA M R, ADV.) AND:
1. M/S PIONEER DEVELOPERS A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT: NO.85, FLAT NO.2 & 2A GROUND FLOOR, “VAIBHAV APARTMENT” GANDHI BAZAAR ROAD BASAVANAGUDI BANGALORE – 56004.
2. V RAGHAVENDRA MANAGING PARTNER NO.85, FLAT NO.2 & 2A GROUND FLOOR “VAIBHAV APARTMENT” GANDHI BAZAAR ROAD BASAVANAGUDI BANGALORE – 560 004. ... RESPONDENTS (BY SRI. RAMESH P KULKARNI, ADV. FOR R.1 & 2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. LPRAYING TO SET ASIDE THE ORDER DATED 12.04.2019 IN C.C.NO.5673/2018 ON THE FILE OF THE XVI ACMM, BENGALURU AND PLEASED TO ALLOW THE APPLICATION FILED UNDER SECTION 311 OF CR.P.C. FILED BY THE PETITIONER IN THE ABOVE CASE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In the instant petition, petitioner has assailed the order dated 12.04.2019 passed in C.C.No.5673/2018 on the file of the XVI ACMM, Bengaluru on the petitioner’s application filed under Section 311 Cr.P.C whereby learned Magistrate has rejected the application.
2. Learned counsel for the petitioner submitted that in his application under Section 311 Cr.P.C., reliefs sought are in two fold viz.,:
(i) for production of certain documents like agreement of undertaking for clearing the amount and (ii) for recalling PW1 for further chief examination.
3. In support of his grievance, he has cited decision in ZAHIRA BAHIHULLAH SHEIKH (5) AND ANOTHER vs STATE OF GUJARAT AND OTHERS reported in (2006)3 SCC 374 (para.27) 4. On the other hand, learned counsel for the respondents resisted the petitioner’s contention and submitted that for production of document like agreement of undertaking for clearing the amount, application under Section 311 of Cr.P.C. is not maintainable. Further, there is no infirmity in the impugned order dated 12.04.2019. Learned counsel relied on a decision of the Supreme Court in RATANLAL vs PRAHLAD JAT AND OTHERS reported in (2017)9 SCC 340 (para.17).
5. Heard learned counsel for the parties.
6. The Crux of the matter in the present petition is, “Whether petitioner’s application under Section 311 of Cr.P.C. in C.C.No.5673/2018 is maintainable or not?”
7. Section 311 of Cr.P.C. reads as under:
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.
8. Petitioner’s grievance in application under Section 311 of Cr.P.C. are in two folds viz., for production of documents viz., agreement of undertaking for collecting of the amount and for recalling PW1 for further chief examination.
9. Perusal of Section 311 of Cr.P.C. it is crystal clear that title of the Section itself is for power to summon material witnesses or examining person present. Thus, it is evident that Section 311 of Cr.P.C. do not provide for production of document. Trial Court has failed to apprise in respect of issue relating to recalling of PW1 for further chief examination even though petitioner has not specified for what purpose he intends to further chief examine PW1. At the same time, one cannot ignore Section 311 of Cr.P.C. which empowers that at any stage of enquiry, trial or other proceedings, witness can be summoned. Having regard to the language employed in Section 311 of Cr.P.C., trial Court formally should have permitted the petitioner to recall PW1 for further chief examination. To that extent, there is error in the impugned order. The cited decisions may not assist the parties. Having regard to the provision itself ultimately the interest of justice is prime for deciding whether provision of Section 311 of Cr.P.C. is to be invoked or not. It is neither for the benefit of accused nor for the benefit of prosecution, but only for the Court and to decide with all the complete evidence before it.
10. Accordingly, the order dated 12.04.2019 in C.C.No.5673/2018 on the file of the XVI ACMM, Bengaluru is set-aside. Trial Court is hereby directed to consider the application of the petitioner filed under Section 311 Cr.P.C. afresh only in respect of recall of PW1 for further chief examination. Parties are hereby directed to appear on the next date of hearing.
11. On 05.08.2019, conditional interim order was granted to the extent of depositing cost of Rs.10,000/-. Petitioner is stated to have complied in depositing sum of Rs.10,000/-.
Registry is directed to apportion the cost of Rs.10,000/- viz., Rs.5000/- shall be paid to the respondents and remaining Rs.5000/- shall be paid to the High Court Legal Services Committee, Bengaluru.
Sd/-
JUDGE Brn