IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9391 OF 2018 BETWEEN:
SMT. KAVITHA W/O PRAVEENA AGED ABOUT 34 YEARS ASSISTANT TEACHER GHPS MATHIGAHATTA VILLAGE POST HIRISAVE HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573124. ... PETITIONER (BY SRI.VEERABHADRAIAH.M.C., ADV.) AND:
SRI. K.B.MADHU S/O K.M. BHADREGOWDA AGED ABOUT 40 YEARS RESIDING AT CO1, 17TH F CROSS, BMTC STAFF QUARTERS CMH ROAD, INDRANAGAR BENGALURU-560038. ….RESPONDENT (BY SMT.LEELA DEVADIGA, ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 10.12.2018 PASSED BY THE LVII A.C.M.M., BANGALORE IN C.C.NO.57683/2016 U/S 311 OF CRIMINAL PROCEDURE CODE AND PERMIT THE PETITIONER TO FURTHER CROSS EXAMINATION OF P.W.1, VIDE ANNEXURE-D.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. Veerabhadraiah M.C., learned counsel appearing for the petitioner and Smt. Leela Devadiga, learned counsel appearing for the respondent.
2. Application filed by petitioner-accused under section 311 of Cr.PC for recalling of PW.1 and to further cross examine PW.1 was rejected on the ground that sufficient opportunity though granted to petitioner- accused, same had not been utilized and there is no justifiable reason to grant further opportunity.
3. Having heard learned Advocates appearing for parties and on perusal of impugned order, it would disclose that reasons assigned in the application for recall of PW.1 was that on 13.11.2018, learned Advocate appearing for the accused did not appear as his close relative had been hospitalized. Trial court has held that no medical records were produced in that regard. However, along with this petition, medical records has been produced which would indicate that close relative of petitioner’s counsel had been hospitalized and was inpatient from 25.10.2018 to 15.11.2018. Hence, in the interest of justice, application ought to be allowed. However, on account of inordinate delay in concluding cross examination of PW.1, petitioner-accused deserves to be mulcted with costs.
Hence, the following:
ORDER [i] Criminal Petition is hereby allowed.
[ii] Interlocutory application filed under Section 311 of Cr.PC to recall PW.1 is allowed on payment of cost of Rs.10,000/- payable by petitioner-accused to respondent-complainant.
[iii] It is made clear that petitioner shall proceed with cross examination of PW.1 on the next date of hearing without fail. Payment of cost shall be condition precedent for petitioner to cross examine PW.1.
Smt. Leela Devadiga, learned counsel for respondent permitted to file vakalathnama for the respondent within four weeks from today.
SD/- JUDGE AN/-