IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.1032 of 2017 BETWEEN:
1) REHANA TASNEEM W/O MOHAMMED MUSAVEER AGED ABOUT 29 YEARS 2) MOHAMMED HANEEF S/O ABDUL KHADER AGED ABOUT 77 YEARS 3) MOHAMMED AMJAD S/O MOHAMMED HANEEF AGED ABOUT 40 YEARS ALL ARE RESIDING AT NO.219/17, 6TH MAIN, OFFICIAL COLONY, BYRASANDRA, JAYANAGAR, 1ST BLOCK, BENGALURU-560 011. …PETITIONERS (BY SRI. B. RAVINDRA, ADVOCATE) AND:
MOHAMMED MUSAVEER, S/O LATE MOHAMMED SALEEM, AGED ABOUT 40 YEARS, RESIDING AT NO.8, 4TH CROSS, 5TH MAIN, BYRASANDRA, JAYANAGAR 1ST BLOCK, BENGALURU-560 011. ... RESPONDENT (BY SRI. MANJUNATH. B.R, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 13.01.2017 PASSED IN C.C. NO.25113/2012 BY THE II ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AND DIRECT THE TRAIL COURT TO RECALL THE PW-2 AND PERMIT THE COUNSEL FOR THE PETITIONERS TO CROSS EXAMINE PW-2.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Sri. Manjunath B.R., Advocate, takes notice for the respondent.
2. The counsel for the petitioners is directed to serve the copy of the petition and its enclosures on the learned counsel for the respondent.
3. Heard the learned counsel for the petitioners and the respondent.
4. The petitioners have sought to set aside the order dated 13.01.2017 passed by the II ACMM, Bengaluru in C.C. No.25113/2012, whereunder the application filed by the petitioners under Section 311 of Cr.P.C. to recall PW-2 came to be rejected.
5. In the impugned order, the Trial Court has recorded that “inspite of granting sufficient opportunity the petitioner has failed to cross-examine PW-2 and hence, the cross-examination of PW-2 was taken as nil”.
6. Learned counsel for the petitioners submit that prior to 13.12.2016, PW-2 himself was absent before the Court on four occasions and on 13.12.2016 on account of declaration of holiday to the Courts on account of Id-Milad, the petitioner could not cross examine PW-2. Though the said ground cannot be accepted, yet, having regard to the fact that on the earlier occasions PW-2 himself remained absent, it would serve the ends of justice if an opportunity is granted to the petitioners to cross-examine PW-2. Hence, the petition is allowed and the impugned order dated 13.01.2017 is set aside.
7. The Lower Court shall fix a date for the cross-examination of PW-2 and on that day, the petitioners shall cross-examine PW-2 without seeking any adjournment. Further, on the date of cross- examination of PW-2 the petitioner shall pay a cost of Rs.3,000/- to PW-2. In the event the petitioner fails to cross-examine PW-2 and fails to pay the cost on that day, this order shall become inoperative.
8. In view of the disposal of the main petition, I.A.No.1/17 filed for stay, does not survive for consideration and is accordingly disposed of.
Sd/- Judge BMC/LL