IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI Crl.P. No.1618/2019 BETWEEN:
Mahesha @ Cable Mahesha s/o Moganna, Aged about years r/a Chikkabeechanhalli village Hunsuru Taluk, Mysuru District. … Petitioner (By Sri N Kumar, Advocate) AND:
State of Karnataka By Bilikere Police Station Mysuru District, now Reptd. by S.P.P High Court Building Bengaluru-560001. ... Respondent (By Smt.K P Yashodha, HCGP) This petition is filed under Section 482 of Cr.PC praying to set aside the order dated 25.01.2019 in S.C.No.357/2017 passed by VII Additional Sessions Judge, Mysuru and allow the application filed by the petitioner U/S 311 of Cr.PC.
This petition is coming on for admission this day, the Court made the following:-
ORDER Learned State Counsel accepts notice for the respondent.
2. In the instant petition, petitioner has assailed the order dated 25.1.2019 in SC No.357/2017 passed by VII Additional Sessions Judge, Mysuru, whereby petitioner’s application filed under Section 311 of Cr.PC for recalling PWs.1, 5, 6, 10, 11 and 12 for cross-examination has been rejected. Court below has rejected for the reason stated as under:
“12. It is painful to note that it has also become a trend that in cases where the victims/witnesses support the prosecution case, invariably adjournments are sought when the victim and witnesses are examined by the prosecution by giving one or the other excuse and at the fag end of the trial, application U/s.311 Cr.P.C. would be filed to recall the witnesses just to harass them. In the case on hand the reasons stated in the application that the counsel was not in station and the counsel representing the other accused had recently filed Vakalath for Accused No.1 are not sufficient grounds or reasons to allow the application. Moreover, the reasons that are mentioned in the application are totally unacceptable. Since valid and acceptable reasons are not assigned seeking recall of the witnesses for their cross examination, I answer point for consideration in the Negative.”
3. It is to be noted that offences faced by the petitioner are under Section 376, 302, 201 read with Section 34 of IPC, which are relating to heinous crime. Due to default on the part of petitioner’s counsel, petitioner shall not be penalized. Therefore, it is necessary to interfere with the order dated 25.1.2019. The object and reasons for recalling the witnesses are to be taken note with reference to Section 311 of Cr.PC. Object of Section 311 of Cr.PC is to give ample opportunity. Section 311 of Cr.PC reads as under:
“311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.”
4. Supreme Court in the case of U.T. of Dadra & Nagar Haveli and another –vs- Fatehsinh Mohansinh Chauhan reported in (2006) 7 SCC 529 held as under:
“12. In Jamatraj Kewalji Govani v. State of Maharashtra after analysis of the provision of the section it was held as under in AIR para 10 of the Report: (SCR p. 420 B-E) “Section 540 is intended to be wide as the repeated use of the word ‘any’ throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word ‘may’ in the first part and of the word ‘shall’ in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the second stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.”
5. Having regard to the fact that petitioner has suffered an opportunity with reference to Application under Section 311 of Cr.PC and due to non-appearance of petitioner’s counsel, petitioner shall not be penalized. In view of all these facts and circumstances, reasoning stated in para-12 of the order dated 25.1.2019 by the Court below would be contrary to object of Section 311 of Cr.PC. Accordingly, order dated 25.1.2019 passed in SC No.357/2017 by VII Additional Sessions Judge, Mysuru is hereby set aside. Application filed by the petitioner under Section 311 of Cr.PC stands allowed.
Parties are hereby directed to appear before Court below on 25.11.2019 for further proceedings. Parties are hereby directed to co-operate in deciding SC No.357/2017 on the file of the VII Additional Sessions Judge, Mysuru.
Accordingly, petition stands allowed.
Sd/- JUDGE Bkm