IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.69/2019 BETWEEN:
MAHADEVASWAMY @ PRASANNA S/O MAHADEVAIAH AGED ABOUT 23 YEARS R/AT KARGALLI VILLAGE SOSALE HOBLI T. NARASIPURA TALUK MYSORE DISTRICT - 570 101.
... PETITIONER (BY SRI. MAHADEVA SWAMY P., ADVOCATE) AND:
STATE OF KARNATAKA REPRESENTED BY STATION HOUSE OFFICER, BELAKAVADI POLICE STATION, BY STATE PUBLIC PROSECUTOR ATTACHED HIGH COURT BUILDING AMBEDKAR VEEDI BANGALORE - 01.
... RESPONDENT (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:05.12.2018 IN SPL.C.NO.93/2016 AND TO ALLOW THE APPLICATION DATED:23.10.2018 FILED BY THE PETITIONER UNDER SECTION 311 OF CR.P.C AT ANNEXURE A AND B ON THE FILE OF THE I ADDITIONAL DISTRICT AND SPECIAL JUDGE AT MANDYA.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is before this Court challenging order dated 05.12.2018 passed by I Additional District and Special Judge, Mandya in Special Case No.93/2016 whereunder application filed by the petitioner – accused under Section 311 Cr.P.C. has been rejected.
2. Having heard Sri. P.Mahadeva Swamy, learned Advocate appearing for petitioner and Sri. S. Rachaiah, learned HCGP appearing for State and on perusal of application filed before trial Court by accused under Section 311 Cr.P.C for recalling of P.Ws, 1, to 3, P.W.10, P.W.11 and P.W.19, this Court is of the considered view that impugned order does not suffer from any infirmity either on facts or in law calling for interference. As rightly observed by the trial Court, the witnesses to whom petitioner-accused intends to recall have been extensively cross- examined and alleged omissions and contradictions have been elicited in their cross examination, inasmuch as, perusal of the depositions of these witnesses would suggest the same. However, this Court would not express any opinion on merits of the case. The only reason which was assigned by the petitioner to seek recall is “change of counsel”.
3. The Hon’ble Apex Court in the case of STATE (NCT OF DELHI) vs. SHIV KUMAR YADAV AND ANOTHER reported in (2016)2 SCC 402 has delineated the contours for non consideration of application for recall illustratively at paragraph 29 (vii) and has held that “mere change of counsel cannot be a ground to recall the witness”. Even otherwise, if the interest of justice demands and commands, recall would be permitted and it would depend upon facts and circumstances of each case. In the instant case, previous counsel appearing for petitioner-accused has cross-examined all these witnesses extensively and as such recalling said witnesses would not arise. By rejection of said application by trial Court, no injustice has been caused to the petitioner-accused. No good ground is made out to entertain this petition. Hence, criminal petition stands rejected.
SD/- JUDGE RU