IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE P. S. DINESH KUMAR Criminal Petition No.1494 of 2019 BETWEEN 1. SHIVALINGANAIKA S/O. MARANAIKA AGED ABOUT 35 YEARS 2. SOMANAIKA S/O. PUTTABHUDDINAIKA AGED ABOUT 40 YEARS 3. MAHADEVSWAMY S/O. SUBBANAIKA @ KARINAIKA AGED ABOUT 28 YEARS ALL ARE R/AT SINDHUVALLI VILLAGE NANJANGUD TALUK MYSURU DISTRICT – 571 122 ... PETITIONERS (BY SRI. VEERABHADRA SWAMY H.P. ADVOCATE FOR SRI. JAGADEESH C.M., ADVOCATE) AND 1. STATE BY NANJANGUD RURAL POLICE MYSURU DISTRICT, REPRESENTED BY: PUBLIC PROSECUTOR STATE OF KARNATAKA HIGH COURT BUILDING BENGALURU – 560 001 2. MAHESH S/O. SIDDEGOWDA AGED ABOUT: 38 YEARS KURIBARABEEDI STREET T. NARASIPURA MYSORE – 570 031 (BY SMT. K.P. YASHODHA, HCGP FOR R1 ... RESPONDENTS R-2 IS DELETED V/O DTD:29.08.2019) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 29.01.2019, PASSED BY THE VII ADDITIONAL DISTRICT AND SESSION JUDGE AT MYSURU IN S.C.NO.147/2017, REJECTING THE APPLICATION FILED BY THE PETITIONERS U/S.311 OF CR.P.C. FOR RECALL OF PW-8, 9 AND 15 FOR CROSS EXAMINATION AND ALLOW THE SAID APPLICATIONS DIRECTIONS DIRECTING THE TRIAL COURT TO RECALL THE PW-8, 9 AND 15 FOR CROSS EXAMINATION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER All four accused in S.C.No.147/2017 filed applications to recall P.Ws.8,9 and 15 to cross-examine them. It is stated in the applications filed on behalf of accused Nos.1 and 2 that the said witnesses could not be cross-examined due to ill-health of their respective advocates. It is stated in the common application filed on behalf of accused Nos.3 and 4 that cross-examination could not be conducted as they had not given necessary instructions to their advocate. The learned trial Judge by the impugned order has dismissed the said applications. Hence, this petition.
2. Sri.Veerabhadra Swamy, learned advocate for the petitioners submitted that accused are facing trial for offences punishable under Sections 302 and 201 of IPC.
P.W.8 is wife of deceased, P.W.9 is brother of deceased and P.W.15 is an independent witness. They are stationed in T. Narasipura, which is about 40 Kms. from Mysuru. Since petitioners are facing charge of grave offences and cross-examination could not be conducted due to bonafide reasons, one more opportunity may be given to them.
3. Learned HCGP argued opposing the petition and submitted that applications moved on behalf of petitioners do not contain any valid reasons.
4. I have carefully considered rival contentions and perused the records.
5. In the order sheet dated 11.9.2018 the learned trial Judge has recorded that prayer for adjournment to cross-examine the witnesses was rejected as no valid grounds were urged. It is stated in the applications moved on behalf of accused Nos.1 and 2 that their advocates were unwell.
6. Admittedly, petitioners are facing charge for commission of offences punishable under Sections 302 and 201 of IPC, which are grave in nature. Dismissal of the applications deprives them of an opportunity to cross- examine the witnesses.
7. Keeping in view the gravity of offences and the dates of examination-in-chief, this Court is the view that one more opportunity may be granted on strict terms. Hence, the following:
ORDER (i) The petition is allowed.
(ii) The impugned order dated 29.01.2019 passed by the VII Additional Sessions Judge at Mysuru in S.C.No.147/2017 is set aside;
(iii) the applications moved by accused No.2 on 3.12.2018 is allowed;
(iv) common application dated 07.12.2018 moved by respondent No.3 & respondent No.4 is allowed so far as respondent No.3 is concerned; and (v) the learned trial Judge shall permit petitioners to cross-examine P.Ws.8,9 and 15 on any one date as may be fixed by him upon payment of costs of Rs.30,000/- to witnesses.
Sd/- JUDGE alb/-.