IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.6207 OF 2017 BETWEEN:
Sandeepa B.D. S/o Dharmappa, Aged about 19 years, R/o Rajev College, Hassan – 573 201.
Permanent Address:
Besuru Village, Kodipete Hobli, Somavarapete Taluk, Kodagu District – 571 236.
(By Sri.Dinesh Kumar, Advocate For Sri. R.B. Deshpande, Advocate) AND:
The State of Karnataka By Arkalgudu Police Station, Hassan District – 573 102.
Represented by State Public Prosecutor, High Court Buildings, Bengaluru – 560 001.
…Petitioner … Respondent (By S. Rachaiah, HCGP) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 21.06.2017 passed by the III Additional District and Sessions Judge, Hassan in S.C. No.72/2015 and allow the application filed by the petitioner under Section 311 of Cr.P.C. for further cross-examination of PWs.1 to 5.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER Heard Sri. Ravindra B. Deshpande, learned counsel appearing for petitioner and learned HCGP appearing for respondent-State and perused the records.
2. Petitioner is seeking for quashing of the order dated 21.06.2017 passed by III Additional District and Sessions Judge, Hassan, in SC No.72/2015 in allowing the application filed under Section 311 of Cr.P.C. where-under, petitioner- accused sought for further cross-examination of PW.1 to PW.5.
3. Having heard the learned advocates appearing for both parties and on perusal of the order under challenge, it would clearly disclose that learned Judge has specifically assigned the reasons for rejecting the application by arriving at a conclusion that there is no strong and valid reason to exercise the power to recall PW.1 to PW.5.
4. Petitioner has been arrayed as accused for the offences punishable under Sections 302, 201 and 392 of IPC in S.C.No.72/2015 and undisputedly, during the course of trial, prosecution witnesses PW.1 to PW.5 have been examined and cross-examined extensively on behalf of petitioner-accused. The reasons assigned for recall of these witnesses as could be seen from the application in question reads as under:
“a) PW.1 sought to be recalled on the ground that he has not furnished any further statement and in his evidence PW.1 has stated which has not been stated in the complaint and as such, that portion of deposition of PW.1 is required to be confronted;
b) PW.2 to PW5 are to be recalled on the ground that certain questions have to be put to them and on account of oversight having been left out.
c) In order to seek or elicit answers from PW5 with regard to entering the house of the deceased on the date of incident which question had been left out while he was in cross-examination, he sought to be recalled.”
5. It is not the case of the petitioner- accused that he was deprived to cross-examine these witnesses. Full opportunity has been extended to the petitioner to cross-examine these witnesses. Fairness of trial has to been seen from the point of view of the accused and also from the point of view of victim and the society. In the name of fair trial and as such, if there is no adequate and cogent reason assigned by the accused to recall prosecution witnesses, it cannot be gain said by the accused that on account of such deprivation his right is infringed. Recall of the witnesses is to be allowed for just and valid reasons and to ensure no injustice is caused to the accused. As rightly held by the trial Court the exercise of jurisdiction to recall is to prevent failure of justice and such discretion is to be exercised cautiously, carefully and if the circumstance warrant exercise of such jurisdiction as otherwise not.
6. Keeping in view the principles laid down by the Hon’ble Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and others reported in 2013, SAR (Criminal) 806 wherein their lordships have held that resort to Section 311 of Cr.P.C can be had to recall the witnesses with an object of finding out of the truth of obtaining proper proof of such facts, which will lead to just and correct decision of the case and exercise of such power cannot be dubbed as filling in lacuna in a prosecution case, unless, the facts disclose that exercise of such power by the Court would result in causing any serious prejudice or in other words the discretionary powers should be exercised judicially and not arbitrarily and this would always depend on facts and circumstances of each case.
7. As already noticed herein above, charge made against petitioner-accused is for the offences punishable under Sections 302, 201 and 392 of IPC and if opportunity is extended to petitioner to cross- examine PW.1 and PW.5 for the reasons as assigned in affidavit, this Court is of the considered view that ends of justice will be met. As such, prayer sought for by petitioner requires to be allowed in part. Hence, the following:
O R D E R i. Criminal Petition is hereby allowed in part.
ii. Order dated 21.06.2017 passed in S.C. No.72/2015 passed by III Additional District and Sessions Judge is partly modified by allowing the application filed by petitioner under Section 311 of Cr.P.C. and petitioner is permitted to further cross-examine PW.1 and PW.5 on the date of hearing which the learned Sessions Judge may fix by securing their presence.
iii. On no grounds learned Sessions Judge shall extend further time to cross- examine PW.1 and PW.5 except on the date when they would present before the Court as may be ordered.
SD/- JUDGE SB