IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 2348/2019 BETWEEN:
1. Lathif Khan s/o Rasheed Khan Aged about 60 years R/at 82, Dayanandanagar Main Road, 1st Block Jayanagar Bengaluru-560 011.
2. Amzad Khan s/o Lathif Khan Aged about 28 years R/at 82, Dayanandanagar Main Road, 1st Block Jayanagar Bengaluru-560 011. ... Petitioners (By Sri Shivaprasad Y S, Advocate) AND:
1. The State of Karnataka By Siddapura P S Represented by SPP High Court Building Bengaluru – 560 001.
2. Zameer s/o late Mohd Gouze Aged 64 years R/at No.168 Mahalingeshwara Extn Audugodi Bengaluru – 560 030. ... Respondents (By Sri I S Pramodchandra, SPP-II) This criminal petition is filed under Section 482 of Cr.PC praying to set aside the order passed by the II ACMM, Bangalore pertaining to an application filed under Section 311 of Cr.PC rejected on 14.3.2019 and direct the Court below to secure the presence of PW1 and PW2 for cross-examination for an offence punishable under Sections 323, 506 read with Section 34 of IPC.
This petition coming on for orders, this day, the Court made the following:
ORDER Learned S.P.P, is directed to take notice for respondent No.1/State.
This petition is filed by the petitioners/accused Nos.1 and 2 under section 482 of Cr.P.C. to set aside the order dated 14/03/2019 passed by the trial Court dismissing the application of the petitioners filed under Section 311 of Cr.P.C.
2. It is the case of the petitioners that a case is registered against the petitioners /accused Nos.1 and 2 in C.C.No.7290/2015 for the offences punishable under Sections. 323, 506 r/w 34 of IPC, on the complaint filed by C.W.1, who is said to be the son-in-law of petitioner No.1. After framing of the charges, the evidence of P.W.1 and P.W.2 is said to be recorded by the trial Court. The trial Court rejected the request of the petitioners/accused for adjournment in order to cross-examine the witnesses and later on the application filed under Section 311 of Cr.P.C. for recalling said witnesses for cross-examination was allowed on 07/12/2018. However, petitioners have not chosen to cross-examine the said witnesses. Thereafter, another application filed by the petitioners was rejected by the trial Court, which is under challenge in this petition.
3. On hearing the learned counsel for the petitioners as well as the learned SPP, the short question that arises for consideration of this Court is as under;
“Whether the order under challenge by the petitioners deserves to be quashed? “ 4. On perusal of the impugned order, it is noticed that the petitioners/accused were facing trial for offences 323, 506 r/w 34 of IPC before the trial Court. Though the trial Court rejected the prayer for adjournment on the first occasion, later the trial Court allowed the application and permitted the petitioners to cross-examine P.W.1 and P.W.2, but they have not chosen to cross-examine them. Subsequent application filed by the petitioners came to be allowed on the ground that the petitioners have not chosen to cross-examine the witnesses.
5. It is submitted by the learned counsel for the petitioners that the petitioners are ready to abide by any conditions which may be imposed by the Court to cross- examine P.W.1 and P.W.2 within ten days without seeking any adjournment and if the trial Court proceeds further, petitioners will be put to great hardship. The same is not disputed by the other side.
6. Though there is mistake on the part of the petitioners in not cross-examining the witnesses, however, in the interest of justice, a fair opportunity is extended to the petitioners to cross-examine the said witnesses.
7. Accordingly, I proceed to pass the following order;
i) The petition is allowed.
ii) The order dated 14/03/2019 passed by the II A.C.M.M., Bengaluru, on an application filed under Section 311 of Cr.P.C., is hereby set aside.
iii) The trial Court is directed to re-consider the matter afresh after giving one more opportunity to the petitioners to cross-examine P.W.1 and P.W.2 by imposing some cost.
iv) Petitioners shall not seek any further adjournment and conclude the cross-examination on the date fixed by the trial Court.
v) The trial Court shall dispose the application and permit the petitioners to cross- examine P.W.1 and P.W.2 within ten days from the date of receipt of a copy of this order.
In view of the disposal of this petition, I.A.1/2019 does not survive for consideration.
Send a copy of this order to the trial Court.
SD/- JUDGE Msu