IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI CRIMINAL PETITION NO.7027/2019 BETWEEN:
SRI RAKSHIT S/O. LATE B. BASAVARAJU AGED ABOUT 33 YEARS, RESIDENT OF SIDDAIAHNAPURA VILLAGE, KOLLEGAL TALUK-571440 CHAMARAJANAGAR DISTRICT.
(BY SRI. GEORGE LAZARUS R. ADV.,) AND:
STATE OF KARNATAKA BY KOLLEGAL TOWN POLICE STATION, KOLLEGAL TALUK, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BANGALORE-560001.
(BY SRI. R.D. RENUKARADHYA, HCGP.,) … PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 11.09.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN S.C. No.58/2016 DISMISSING THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 311 OF CR.P.C. AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 311 OF CR.P.C. TO RECALL PW-13 AND PW-14 FOR CROSS EXAMINATION AND ETC., THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner has prayed for the following relief:
1. Call for records.
2. Set aside the order dated 11/09/2019 Annexure-A passed by the Hon’ble Principal District and Sessions Judge at Chamarajanagara in S.C. No.58/2016 dismissing the application filed by the petitioner under Section 311 of Cr.P.C. to meet the ends of justice.
3. Allow the application filed by the petitioner under Section 311 of Cr.P.C. to recall PW-13 & PW-14 for cross examination in the interest of justice.
2. Order dated 11.09.2019 in S.C. No.58/2016 on the file of District and Sessions Court, Chamarajanagar reads as under:
Case called out, Accused present, objection to a 311 of Cr.P.C. not filed. Heard on application filed under Section 311 of Cr.P.C. On perusal of the application, absolutely there are no grounds to recall PW-13 and 14. Hence, application is rejected. Reissue NBW to CW-18, and issue NBW to CW-15 on 30.09.2019.
3. Perusal of the order, it is evident there is no application of mind by the Court below. Further, it is to be noted that Section 311 of Cr.P.C. provides for recalling the witness at any given point of time. In the absence of reasons assigned for rejection, it is an unreasoned order.
Section 311 of Cr.P.C. reads as under:
311. Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.
4. The concerned Court is required to comply ingredients of Section 311 of Cr.P.C. Apex Court in the case of Manju Devi Vs. State of Rajasthan and another reported in (2019) 6 SCC 203 held as under:
It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in sofaras the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:-
"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re- examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any Court", "at any stage”, or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”
13. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.
5. Accordingly, order dated 11.09.2019 passed by the Principal District and Sessions Judge, Chamarajanagara in S.C. No.58/2016 is set aside. Petition stands allowed. Court below is hereby directed to consider application under Section 311 of Cr.P.C. afresh.
Petitioner is hereby directed to appear before the Court on 25.11.2019.
Sd/- JUDGE BS