IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.988/2019 BETWEEN:
1. R. BABU S/O B. RAMAIAH AGED 44 YEARS R/AT NO.1025 RAGHAVENDRA BLOCK NEAR CANARA BANK AVALAHALLI MAIN ROAD, SRINAGAR BANGALORE – 560 050.
2. R. RAVI KUMAR S/O B. RAMAIAH AGED 53 YEARS R/AT NO.155, 1ST FLOOR 10TH MAIN, KALAPPA BLOCK, SRINAGARA BANGALORE – 560 050.
(BY SRI. MANJUNATH B.R., ADVOCATE) AND:
STATE OF KARNATAKA JAYANAGAR POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... PETITIONERS ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:24.01.2019, PASSED ON APPLICATION FILED U/S 311 OF CR.PC AND ALLOW THE APPLICATION IN C.C.NO.2987/2008 OF JAYANAGAR POLICE STATION, PENDING ON THE FILE OF THE II A.C.M.M., AT BANGALORE REGISTERED FOR THE OFFENCE P/U/S 120B AND 420 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who are accused Nos.3 & 4 in C.C.No.2987/2008 are calling in question order dated 24.01.2019 passed by learned trial Judge dismissing the application filed under Section 311 Cr.P.C. for recall of P.W.8. Learned trial Judge has rejected said application on the ground that matter is of the year 2008 and there are no good grounds to recall P.W.8 (C.W.20).
2. A bare perusal of the application would disclose that learned counsel for accused appeared before the Court below on the same day and sought for a pass over that too, after partially cross examining P.W.8. On the ground that his senior counsel was held up in the High Court and could not reach the trial Court on time. However, this has not been accepted and as such P.W.8 came to be discharged. I do not find any good ground to disbelieve the statement made by the learned Advocate appearing for petitioner. Taking into consideration that offence alleged against petitioner is punishable under Section 120B read with Section 420 IPC, full opportunity deserves to be granted to petitioner – accused to defend himself by granting a last opportunity. In that view of the matter, impugned order cannot be sustained.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Order dated 24.1.2019 passed by II Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.2987/2008 is set aside.
(iii) Application filed by petitioner-accused under Section 311 Cr.P.C. is allowed.
(iv) Prosecution is directed to keep P.W.8 (C.W.20) present on the next date of hearing or immediately after 25.04.2019 and on said date cross-examination of P.W.8 shall be concluded positively.
SD/-
JUDGE *sp