IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.4479 OF 2019 BETWEEN:
SRI. NARASIMMAPPA. K.N. @ K.N.NARASIMHAPPA S/O GUDISI NARAYANAPPA AGED ABOIUT 45 YEARS R/AT KORENAHALLI VILLAGE GUDIBANDE TALUK CHICKBALLAPURA - 562 103 ... PETITIONER (BY SHRI. T. PRAKASH, ADVOCATE) AND:
STATE OF KARNATAKA BY CHIKKABALLAPUR CEN CRIME POLICE STATION CHIKKABALLAPUR DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU - 560 001 ... RESPONDENT (BY SHRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 30.04.2019 VIDE ANNEXURE-A REJECTING THE I.A. FILED U/S 311 OF CR.PC FILED BY THE COUNSEL FOR THE ACCUSED NO.1 TO RECALL P.W.1 TO 3 FOR CROSS EXAMINATION AND CONSEQUENTLY TO ALLOW THIS CRL.P. AND ETC., THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This petition is filed by accused No.1 challenging order dated 30.04.2019 in SPL.C.No.185/2018 passed by the learned Principal District & Sessions Judge, Chikkaballapura, rejecting his application filed under Section 311 of Cr.P.C., to recall PWs.1, 2 & 3 for cross-examination.
2. Shri T. Prakash, learned advocate for the petitioner submitted that petitioner is accused No.1 and his advocate was not present on 20.02.2019 on which date, PWs.1, 2 & 3 were cross-examined by the learned advocate for accused No.2 to 4. Immediately, petitioner obtained no objection from his advocate and on the very next date, he appointed another advocate one S.V. Ramamoorthy to conduct his case. On the immediate next date of hearing on 30.04.2019, learned advocate for the petitioner has filed the instant application under Section 311 of Cr.P.C., seeking to recall PWs.1, 2 & 3. On the very same day, without recording any reasons, learned Sessions Judge has rejected the application with a direction to adopt the cross-examination of the said witnesses conducted on behalf of accused Nos.2 to 4.
3. He further submitted that petitioner is facing trial for the offences punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short) and therefore, it is just and appropriate to allow this petition.
4. Shri S. Rachaiah, learned HCGP submitted that no valid grounds are forthcoming in the application under Section 311 of Cr.P.C., to allow the said application. Accordingly, he argued for dismissal of this petition.
5. I have carefully considered the submissions of the learned advocate for the petitioner, learned HCGP and perused the records.
6. Admittedly, petitioner is facing the prosecution for the offences punishable under NDPS Act.
7. Learned Trial Judge has rejected the application by recording thus, “Accused 1 to 4 present. Application filed for recalling PW1 to 3 and request is rejected and to adopt the cross. Reissue BW to CW14, 15, 17. R/by 20.06.2019.
Prl. District & Sessions Judge, Chikkaballapura.”
8. The record of proceedings annexed to this petition shows that the petitioner has appointed a new advocate on 29.03.2019 and on the immediate next date namely, 30.03.2019, the said advocate has filed the instant application. In the circumstances, this Court is of the view that one opportunity is to be given to the petitioner to cross-examine PWs.1, 2 & 3 on terms. Hence, the following;
ORDER (i) Order dated 30.04.2019 in SPL.C.No.185/2018 passed by Principal District & Sessions Judge, Chikkaballapura, is set-aside; and (ii) Application dated 30.04.2019 is allowed.
Petitioner’s advocate shall be permitted to cross-examine PWs.1, 2 & 3 on any one date as fixed by the learned Trial Judge upon payment of cost of Rs.5,000/- payable to the State Exchequer.
9. Petition is disposed of accordingly.
10. In view of disposal of the petition, I.A.No.1/2019 does not survive for consideration and the same stands disposed of.
No costs.
Sd/- JUDGE AV