IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.607 OF 2019 BETWEEN:
1. SRI. C. SHIVALINGE GOWDA, S/O. CHIKKAHAIDE GOWDA, AGED ABOUT 53 YEARS, 2. K.H. PADHMA, W/O. C. SHIVALINGE GOWDA, AGED ABOUT 48 YEARS, SL.NO.1 AND 2 ARE RESIDING AT NO.1604, 1ST STAGE, CHANDRA LAYOUT, BANGALORE-560 040.
[BY SRI. JAYASIMHA K.P., ADVOCATE] AND:
THE STATE OF KARNATAKA REPRESENTED BY SHANKARAPURA P.S. REPRESENTED BY SSP, HIGH COURT BUILDING, BENGALURU-560 001.
[BY SRI. M. DIWAKAR MADDUR, HCGP] … PETITIONERS … RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE INTERIM ORDER PASSED BY THE LEARNED 24TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C. NO.20300/2010 VIDE ORDER DATED 30.03.2019.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER The petitioners are accused Nos.2 and 3 and they are facing trial in C.C.No.20300/2010 on the file of the Court of 24th ACMM, Bengaluru.
2. The present petition is filed seeking to set aside the Order dated 30.03.2019 passed by the Trial Court, thereby dismissing the applications filed by the petitioners under Section 311 of Cr.P.C. to recall PWs 2 to 9 and permit them to cross-examine the said witnesses.
3. I have heard the learned counsel appearing for the petitioners and the learned HCGP.
4. The offences alleged against the petitioners are punishable under Sections 465, 468, 471, 420 read with Section 34 of IPC.
5. It is the submission of the learned counsel for the petitioners that during trail, the witnesses were not regular in attending the Court and therefore, the petitioners have not properly conducted the trial and the previous learned counsel appearing for the petitioners has failed to cross-examine PWs2 to 9. It is submitted that PWs2 to 9 are required to be cross-examined and if an opportunity is not given to cross- examine PWs2 to 9, then a great injustice will be caused to the accused-petitioners.
6. The learned HCGP on the other hand submits that sufficient opportunity was given to cross-examine the witnesses. He further submits that similar application filed by accused Nos.2 and 3 was rejected by the Court below and that was not challenged and the same has attained finality and therefore, he seeks to dismiss the petition. He further contends that the present application is filed to prolong the trial pending before the court below.
7. Perusal of the impugned order dated 30.03.2019 passed in C.C. No.20300/2010 goes to show that the learned Magistrate rejected the application filed under Section 311 of Cr.P.C. to recall PWs2 to 9 for further cross-examination. The learned Magistrate has rejected the prayer of the accused- petitioners on the ground that on an earlier occasion by an order dated 09.01.2019, similar application was rejected on merit and the same has attained finality.
8. The impugned order passed by the learned Magistrate does not disclose as to whether the cross- examination of PWs2 to 9 has been done at all. In case, the accused have not cross-examined the said witnesses, then it will lead to miscarriage of justice. If the accused have already cross-examined any of the witnesses, then the trail court would be justified in rejecting the application. However, if any of the witnesses are not cross examined at all by the defence, then they shall be permitted to be cross examined by giving a reasonable opportunity.
It is further directed that the accused shall not prolong the trial by unnecessarily taking time. The cross-examination if any shall be concluded within a period of two months from the date on which a copy of this order is ready.
With the above observation, the revision petition is disposed off.
Sd/- JUDGE snc