IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION No.8900/2017 Between :
Pradeep S/o Nagabhushan, Aged about 25 years, Occ: Labourer, r/o.5/6/735, Model Colony, Hindupur, Ananthapura District, Andhra Pradesh State-515 201. .. Petitioner ( By Sri Dineshkumar K. Rao, Advocate For Sri R.B.Deshapande, Advocate ) And :
The State of Karnataka By Harihara Town Police Station, Davanagere District – 577 601. .. Respondent ( By Sri Sandesh J. Chouta, SPP-II) This Criminal Petition is filed under Section 482 Cr.P.C. praying to set aside the order dated 21.08.2017, passed by the II Addl.District and Sessions Judge and Special Judge, at Davanagere, in S.C.No.39/2015.
This Criminal Petition coming on for Admission this day, the Court made the following :
ORDER Heard the learned counsel for the petitioner and the learned State Public Prosecutor for the respondent State. Perused the order challenged in the petition.
2. The petitioner has filed an application under Section 311 of Cr.P.C. in S.C.No.39/2015, on the file of II Addl.District & Sessions Judge & Special Judge, Davanagere, for the purpose of recalling PW-2 for cross- examination on the ground that the accused has changed his advocate and the advocate had no sufficient instructions to cross-examine PW-2. The said application came to be filed when the matter was posted for recording of the statement of the accused under Section 313 of Cr.P.C. Finding fault with the conduct of the petitioner, the learned Sessions Judge passed a detailed order and rejected the said application mainly on the ground that the conduct of the petitioner is only to drag on the proceedings without there being any intention to really cross-examine PW-2. Added to that, the advocate later appeared and who has taken over the charge and came on record, also kept silent for more than one year and thereafter, when the matter was reached for recording the statement of the accused, he filed an application. By relying upon the ruling of the Supreme Court that unnecessarily opportunity should not be given to drag on the proceedings, the trial Court has dismissed the application.
3. I do not find any lacuna in the orders passed by the trial Court considering the conduct of the accused and his advocate. But, it should be borne in mind that PW-2 is a star and material witness who implicated the accused to the crime. If there are any consequences of relying upon examination-in-chief alone in disposal of the matter, it would virtually amount to closing the doors of the Court permanently so far as accused is concerned. The criminal jurisprudence says that an opportunity should be granted to the accused as far as possible by the trial Court itself.
Therefore, in order to avoid multiplicity of proceedings and also providing a final opportunity to the accused, the trial Court ought to have considered the application on terms.
4. It is seen from the records and as stated by the learned counsel for the petitioner that PW-2 was not at all cross-examined by the petitioner. I can understand, if PW-2 was also cross-examined to certain extent and for the purpose of elucidating favourable answers in favour of the accused, a witness was called upon for further evidence, in such an event, the Court has to take a harsh view. Otherwise, always the Court has to take some lenient view in allowing the parties to agitate their rights before the trial Court itself.
5. Under the above said facts and circumstances, though I am not fully satisfied by the submission made by the learned counsel for the petitioner, however, in order to give one more opportunity to the petitioner, I feel it just and necessary to allow the application on terms. Hence, with these observations, the following order is passed :-
ORDER The Petition is allowed. Consequently, the order dated 21.8.2017, passed by the learned II Addl.District & Sessions Judge & Special Judge, Davanagere, in S.C.No.39/2015, is hereby set aside. Consequently, the application filed under Section 311 of Cr.P.C., filed by the petitioner to recall PW-2 for cross-examination, is hereby allowed, on cost of Rs.2,000/-. The said amount has to be deposited before the trial Court and the same has to be adjusted by the trial Court towards litigation expenses of the Court. PW-2 shall be recalled before the Court by providing an opportunity to cross-examine PW-2 by the petitioner. It is made clear that on the date fixed by the trial Court, without asking further time, the petitioner has to cross-examine PW-2.
Sd/- JUDGE *bk/-