IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2040/2019 BETWEEN:
1. KHALEEL S/O. SHAIK MAQBOOL @ MAQBOOL, AGED ABOUT 24 YEARS 2. SHAIK MAQBOOL S/O. GOREA SAB, AGED ABOUT 50 YEARS 3. NASEEMA W/O. SHAIK MAQBOOL, AGEDA BOUT 48 YEARS, ALL ARE R/AT LOKASARA VILLAGE, MANDYA TALUK, MANDYA DIST-571401 ... PETITIONERS (BY SRI.MAHADEVA SWAMY P, ADVOCATE) AND:
STATE OF KARNATAKA REP. BY STATION HOUSE OFFICER, MANDYA RURAL POLICE BY STATE PUBLIC PROSECUTOR, ATTACHED HIGH COURT BUILDING, HIGH COURT OF KARNATAKA AMBEDKAR VEEDI, BANGALORE-01 (BY SRI.S.RACHAIAH, HCGP) ... RESPONDENT THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 11.02.2019 IN C.C.NO.1432/2013 AND TO ALLOW THE APPLICATION DATED 23.01.2019 FILED BY THE PETITIONER U/S 311 OF CR.P.C. AT ANNEXURE-B ON THE FILE OF J.M.F.C. MANDYA.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.Mahadeva Swamy, learned counsel appearing for petitioners and Sri.S.Rachaiah, learned HCGP appearing for respondent-State.
2. Application filed by petitioners herein under Section 311 of Cr.P.C. for recall of P.W.1 to P.W.8 has been dismissed by impugned order dated:11.02.2019, which has since been affirmed by Revisional Court on 22.02.2019 in Crl.R.P.No.25/2019, has been called in question before this Court.
3. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that P.W.1 to P.W.8 have been examined on various dates commencing from 18.08.2015 to 20.08.2018. After filing of complaint by P.W.1 and before examination-in-chief of P.W.1 was conducted namely, during this interregnum period there was said to be reunion of parties namely, first petitioner and defacto complainant, who is examined as P.W.1. This is also evident from order sheet of Criminal Misc.No.355/2012 whereunder P.W-1 has clearly submitted before the Court that she is residing along with first petitioner herein and she was four (4) months pregnant. This would only indicate that there was some sort of settlement between parties. In this background, cross examination is said to have been not conducted. In the application filed for recall of these witnesses, reason assigned is, there was change of counsel and this would not be a ground to recall the witnesses as held by the Hon’ble Apex Court in the case of STATE (NCT OF DELHI) vs. SHIV KUMAR YADAV reported in (2016) 2 SCC 402 vide paragraph 29(vii).
4. In the instant case, interest of justice commands that one opportunity is to be extended to the petitioners particularly in the factual background namely, parties had reconciled and were living together for sometime. However, to ensure that there would be no further delay in the proceedings a conditional order deserves to be passed.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(i) Order dated 11.02.2019 passed in C.C.No.1432/2013 is set aside and application filed under Section 311 of Cr.P.C. is allowed on payment of cost of `1,000/- payable by petitioner to each of the witnesses namely, P.W.1 to P.W.8.
(ii) Prosecution shall make endeavours to keep the witnesses present on the next date of hearing and on no ground Trial Court shall grant any extension of time for cross-examining the witness if they appear before Court.
(iii) Registry is directed to make available copy of this order to learned HCGP and learned counsel appearing for petitioner forthwith free of cost.
SD/- JUDGE DR