IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4709/2017 BETWEEN:
Shri.H.N.Somashekar Reddy, S/o. Late Narashimaiah, Aged about 46 years, Lakshmikantha Nagar, Hebbal, 1st Stage, Mysore-570-001. …Petitioner (By Sri.B.Basavaraju, Advocate) AND:
State by Vijayanagar Police, Represented by Public Prosecutor, High Court Building Complex, Bangalore-560-001. ... Respondent (By Sri.Rachaiah, HCGP) This Criminal Petition is filed U/s. 397 R/W 401 Cr.P.C. praying to set aside the order dated 13.04.2017 and allow the application and permit the petitioner to cross examine PW-1 and 3 to arrive at a just conclusion at the case by allowing this petition.
This Criminal Petition is coming on for preliminary hearing this day, the Court made the following:
O R D E R Heard learned counsel appearing for the petitioner accused. Perused the records. An application filed under Section 311 Cr.P.C. to recall PW.1 and PW.3 for the purpose of their cross examination being rejected by order dated 13.4.2017 has been called in question in this petition.
2. It is the contention of Sri.B.Basavaraju, learned counsel for the petitioner that trial court has committed a serious error in rejecting the application filed for recalling PWs. 1 and 3 for cross examination, and it would amount to denial of opportunity to the accused. He would also submit that an application was filed under Section 231(2) Cr.P.C. seeking permission to cross examine CWs.1, 5 and 6 after completion of their examination-in-chief, as such trial court was not justified in insisting the petitioner / accused to proceed with cross examination of PWs.1 and 3 by not extending the time to cross examine these two witnesses after examination–in–chief of CW.6. Hence he contends that the trial court was not justified in rejecting the application for recall of PW.1 and PW.3 as same would be in violation of principles of natural justice. He would also submit that said witnesses being interested witnesses their evidence could not be used against the petitioner / accused if not tested in cross-examination and as such their evidence could not be taken into consideration at all. On these grounds, he would submit that petition may be allowed and the impugned order rejecting the application filed under Section 311 Cr.P.C. be set aside and prays for allowing the application.
3. Per contra, learned High Court Government Pleader would support the impugned order.
4. Having heard the learned counsel for the parties and on perusal of the impugned order as well as application filed by the petitioner, it would disclose that the trail was commenced on 12.8.2016. Prosecution witnesses could not be secured by the prosecution and as such trial was re-fixed for the second time on 18.10.2016. Even on said date, prosecution did not secure its witnesses. For the third time trial came to be fixed on 4.1.2017 and non-bailable warrants came to be issued to the prosecution witnesses to secure their presence. However, same could not be executed. Again, non-bailable warrants which were reissued on 27.2.2017 came to be executed and CWs.1, 2 were secured and examined as PWs.1 and 2 on 20.3.2017 and CW.5 was examined as PW.3 on the next date i.e., 21.3.2017. On 20.3.2017 when CW.1 was examined as PW.1, counsel for the accused sought time to cross examine PW.1 and PW.3 after the completion of examination-in-chief of CW.5 (PW.3) on the ground they were husband and wife, he would cross examine them at the same time. The trial court on noticing that PW.1 is aged about 51 years and was a resident of Kantharahalli, Gowribidanur Taluk carrying on avocation of agriculture and difficulty being expressed by the prosecution to secure his presence, adjourned the matter on payment of cost. Neither the cost was paid nor PW.1 cross examined. As such, trial court held that right to cross examine PW.1 is forfeited.
5. As already noticed hereinabove, on 21.3.2017, CW.5 was examined as PW.3 and counsel appearing for the accused did not chose to cross examine her on the ground that he is yet to cross examine PW.1. The trial court refused to grant time for cross examining PW.3 and taking into consideration age of PW.3 and the distance she has to travel, her (PW.3) cross- examination was taken as ‘nil’. Trial court, on considering the material available on record, opined that cross examination of PW.3 did not depend upon any facts stated/deposed by PW.1 and as such it saw no reason to defer cross examination of PW.3. As rightly opined by the trial court, nothing prevented counsel appearing for the accused to approach the Court at the first instance itself stating that PWs.1 and 3 being husband and wife, should be cross examined on the same day. However, the exercise was not undertaken by accused. Hence taking note of the judgment of the Apex Court in the case of Vinod Kumar reported in (2015) 2 SCC 226, deferring the cross-examination of PW.1 or PW.3 was not in the interest of conducting speedy trial and it came to be held that these two witnesses were secured by the prosecution after a long lapse of time that too after issuance of non-bailable warrants and dilatory tactics was adopted by the accused to protract the proceedings to his advantage and as such it came to be held that unwarranted time sought for by the petitioner / accused to cross-examine PW.1 and PW.3 should not be granted and annulling of application filed under Section 311 Cr.P.C. came to be rejected.
However it is made clear that dismissal of this petition as well as the application filed by the petitioner under Section 311 of Cr.P.C. which has since been rejected by the trial court would not come in the way of petitioner filing fresh application, if so advised, making at a ground for recall PWs.1 and 3. In the event, such an application being filed, trial court shall consider the same on merits and in accordance with law without being influenced by this order and its earlier order.
Subject to above observation, Criminal petition is hereby dismissed.
SD/- JUDGE RS/* ct: rg