IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.411 OF 2019 Between:
Sri.Devendrappakalli, S/o Lopanna, Aged about 35 years Badge No.569, KSRTC Bus Driver, Nanjangud Depot, Native of Lakmeshwara Town, Shirakatti Taluk, Gadag District-582 101 …Petitioner (By Sri Rudraiah M, Advocate) And:
State of Karnataka By Nanjangud T Police Station, Represented by State Public Prosecutor Bengaluru-560 001 … Respondent This Criminal Petition is filed under Section 482 of Cr.P.C praying to set aside the order passed by the VII Additional Sessions Judge, Mysuru dated 22.12.2018 in S.C.No.149/2017 rejecting the application filed by the petitioner under Section 311 of CR.P.C. and further be pleased to allow the said application and recall the witnesses PWs 1 to 4 and 9 for cross examination.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER Office objections over ruled by accepting reply. The only issue which arises for consideration in this petition is whether trial Court was justified in rejecting the prayer sought for recalling the prosecution witnesses – PWs No.1 to 4 and 9 for cross examination.
2. As could be seen from the impugned order dated 22.12.2018, PW-9 Dr.Neetha was cross examined. She was very much present in the Court and was cross examined, as such, the question of recalling PW-9 for cross examination does not arise. In so far as PWs 1 to 4 are concerned, who is the complainant victim and other witnesses were examined on behalf of the prosecution on 07.05.2018 and 20.06.2018. Learned counsel appearing for the accused, though was present in the Court when they were examined has sought for time and on account of cause shown for adjournment was not satisfactory, trial Court has rejected said prayer.
3. Recalling is not a matter of course and discretion is given to the Court which has to be exercised judicially to prevent failure of justice.
4. Extending an opportunity to the accused to defend himself by cross examining the prosecution witnesses at his/her convenience would definitely cause inconvenience to witnesses and they cannot be made to appear before Court time and again. In instant case offence alleged is under Sections 376 and 417 of IPC alleged which are grave and serious offence. Deposition of the witnesses would disclose they have not been cross-examined at all. Hence, accused has to be extended full opportunity to cross-examine the witnesses. Hence, this Court is of the considered view that by putting petitioner to terms, prayer for recalling the witnesses PWs 1 to 4 deserves to be permitted to cross-examine said witnesses. Hence, the following:
ORDER i) Criminal Petition is allowed.
ii) PWs No.1 to 4 are permitted to be further cross-examined on payment of cost of Rs.1,500/- each, payable by the petitioner to each of the witnesses. Payment of cost shall be a pre-condition for cross examination.
iii) The prosecution shall keep the said witnesses present before the trial Court on next date of hearing or such other date which the trial Court may fix.
SD/- JUDGE ag