IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.6746 OF 2018 BETWEEN:
STATE BY LOKAYUKTA POLICE REPRESENTED BY INSPECTOR KOLAR KOLAR DISTRICT – 563 101 ... PETITIONER (BY SRI. MADHUSUDHAN R. NAIK, SENIOR COUNSEL FOR SRI. PRASAD B.S., ADVOCATE ) AND:
V. NARAYANASWAMY S/O. LATE VENKATAPPA AGED 59 YEARS EXCISE HEAD GUARD OFFICE OF DEPUTY SUPERINTENDENT OF EXCISE, CHINTHAMANI NOW WORKING AT CHIKKABALLAPUR – 563 125 R/O. BYRANDAHALLI VILLAGE VEMGAL HOBLI CHANNASANDRA GRAMA PANCHAYATH KOLAR TALUK – 563 101 … RESPONDENT [BY SRI. SHARATH S. GOWDA, ADVOCATE] THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. TO SET ASIDE THE ORDER ONLY IN SO FAR AS REJECTION OF PRAYER OF THE PROSECUTION OF EXAMINATION AND RE-EXAMINATION OF PROSECUTION WITNESSES I.E., PW.2 TO 14 DATED 09.08.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR IN SPL. C. [CORRUPTION] NO.11/2012 AND FURTHER BE PLEASED TO ALLOW THE APPLICATION FILED U/S. 311 OF CR.PC TO RECALL THE WITNESSES EXCEPT PW.1 FOR EXAMINATION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The issue involved in the present petition revolves around an application filed under section 311 of Cr.PC by prosecution for recalling of the prosecution witnesses except PW.1, which has been allowed in part.
2. I have heard arguments of Sri. Madhusudhan R. Naik, learned senior counsel appearing for petitioner and Sri. Sharath S. Gowda, learned counsel appearing for respondent.
3. Petitioner registered a case against respondent in Crime No.4/2011 for the offences punishable under section 13[1][e] read with section 13[2] of Prevention of Corruption Act, 1988 [for short ‘PC Act’]. After investigation, charge sheet has been filed and learned trial Judge has taken cognizance of the said offence and has framed charge and trial has commenced.
Prosecution in the charge sheet had cited 56 witnesses. However, only 14 witnesses were examined and as against 49 documents produced, 26 documents were got marked. At that stage, an application under section 311 of Cr.PC was filed seeking recall of all witnesses except PW.1 as noted hereinabove. This was opposed to by learned counsel for the respondent. The learned trial Judge, by the impugned order, has allowed application in part, namely, has permitted the prosecution to examine these witnesses who had been given up by the prosecution and has permitted to summon them and to that extent only application came to be allowed. Being aggrieved by not permitting recall of PW.2 to PW.14 and permission having been refused to mark documents which were already on record, prosecution is before this Court.
4. It is the contention of learned senior counsel appearing for the petitioner that one of the reasons assigned was change of the Prosecutor to examine the witnesses tendered on behalf of the prosecution by putting forth those questions which were relevant had not been done and that apart, records which were already available on record, produced along with charge sheet material has not been got marked which is lack of management of prosecution case and as such trial court ought to have allowed the application in entirety and not declined to allow the same on the ground of filling up of lacuna. He would also elaborate his submission by contending that documents which have been produced along with charge sheet material has a direct bearing and impact on the case of prosecution as well as charge framed by the court below. If documents are not allowed to be marked, by default the benefit would go to accused and same ought not to be allowed and prays for permission to be extended to the prosecution to tender further evidence.
5. Per contra, Sri. Sharath S. Gowda, learned counsel appearing for respondent would support the impugned order by contending that change of counsel or change of prosecutor cannot be a ground on which application for re-examination or recall can be sought for. It is also submitted by learned counsel for the respondent that he would have no objection for marking of documents which are already on record. To that extent, submission made by learned counsel for respondent is placed on record.
6. Hence, by relying upon following Judgments, he prays for dismissal of the petition.
[a] ‘STATE [NCT OF DELHI] vs. SHIV KUMAR YADAV AND ANOTHER’ reported in [2016] 2 SCC 402 [b] ‘STATE OF HARYANA vs. RAM MEHAR AND OTHERS’ reported in AIR 2016 SC 3942 7. Having heard learned counsel appearing for the parties and on perusal of record, it is apt to note at this juncture that this court by order of even date, has held that application under Section 311 of Cr.PC can be considered at any stage of the proceedings in the matter of ‘SMT ANJANA A SHANTHAVEER vs. SRI. BABU RAO CHINCHANSUR’ of Criminal Petition No.5330/2018 and it has been held to the following effect:
“Sri C.V.Nagesh, xxxx xxxx circumspection. The power of recalling a witness vested in a Court under Section 311 of Cr.P.C. is very wide and could be exercised at any stage. However, it would not be exercised mechanically and without just and adequate grounds or reasons assigned thereof. Hon’ble Apex Court in State (NCT of Delhi) v. Shiv Kumar yadav reported in 2016(2) SCC 402 has held that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. There cannot be any two opinions with regard to the fact that advancement of justice would remain the prime object of law and it cannot be understood to mean that application for recall is to be allowed for mere asking or reasons which are not commensurate to the principle of fair trial. Often quoted reasons for recalling of the witnesses, who have already been examined is “change of counsel”. It is to be normally presumed that counsel who conducted the case was competent particularly, when such counsel was appointed by the choice of the accused himself. Hence, if such reason were to be accepted then there would be no end for grant of such prayer, which may have to be extended to each and every case and thereby resulting in retrial and consequently putting the criminal justice system in jeopardy. That apart, witnesses who have already been examined cannot be ordered to undergo the ordeal of reappearing before Court for tendering themselves to further cross-examination, only because there was a change of counsel. With regard to the reason of change of counsel would not be a ground to seek for recall of the witness. This view which is also supported by the judgment of Hon’ble Apex Court in the case of State of Haryana v. Ram Mehar reported in AIR 2016 SC 3942 vide paragraph 37. It is in this background, the circumstance explained in the application seeking for recalling or summoning the witnesses by the prosecution/ complainant will have to be examined namely, as to whether it would be necessary to recall the witnesses for fair trial and to arrive at a just decision. It all depends upon facts and circumstance of each case. There cannot be any straight jacket formula prescribed in this regard.”
8. In the light of the said finding arrived at by this Court, after noticing catena of Judgments of the Hon’ble Apex Court, it would not be necessary in this petition to dwell upon the Judgments relied upon by both parties. Suffice to say that prayer for recall of witnesses will have to be examined in the factual matrix of each case and in the instant case such an exercise has been undertaken.
9. Sri. Madhusudhan R. Naik, learned senior counsel, during the course of his submission, has submitted that though all witnesses are required to be examined afresh, he would submit that prosecution may be permitted to further re-examine PW Nos.6, 8, 10, 12 and 14 at least.
10. As could be seen from records, PW.2 has been examined and he has deposed that he constructed the house over the property owned by wife of the accused and had received a consideration amount of Rs.8,75,000/-. It is the grievance of prosecution that to extract evidence of PW.5 [G. Ganesh Rao], Assistant Engineer, Lokayukta, evidence of PW.2 has been relied upon by the accused. If the report of PW.5 is available on record, it is always open to the prosecution to demonstrate as to how said report deserves to be accepted or evidence of PW.2 is to be discarded. In that view of the matter, recalling of PW.2 does not arise.
11. PW.6 [CW.34] was working as Joint Director of Sericulture from 2010 to 2013 at Kolar. He has submitted a report with regard to sericulture income of the accused as per Exhibit.P5. According to prosecution, said statement relates to brothers of the accused and it is contended that it is contrary to documentary evidence submitted by PW-6. It is needless to state that contents of a document speaks for itself. If there is any inconsistency in the document, it is always open to the prosecution to establish the same by canvassing their contention in that regard and it is always open to the prosecution to demonstrate as to how reliance cannot be placed on Exhibit.P5 as it does not relate to the accused.
In that view of the matter, recalling of PW.6 would also not arise.
12. As could be seen from deposition copy of PW.8 which has been made available, it would disclose that Exhibit.P7 was marked through him. Question of re- examining said witness would not arise and it does not serve any purpose.
13. Insofar as PW.10 is concerned, he is the RTO Inspector, who has been examined by the prosecution to establish the ownership of the vehicle bearing registration No.KA-02-N-7927 said to be belonging to Smt. Bhagyamma who is none other than wife of the accused. In fact, report of RTO has been marked as per Exhibit.P9. The prosecution can as well demonstrate as to how contents of Exhibit.P9 is to be accepted. No reasons whatsoever has been assigned in the application for recalling of said witness. Hence, prayer for recalling of PW.10 does not appear to be just and reasonable and it stands rejected.
14. PW.12 who is the Village Accountant of Vemgal Circle, through whom mahazar Exhibit.P11 has been marked, has been examined by prosecution to establish ownership of 4 acres 4 guntas of land and income derived thereof. However, surprisingly, said witness has stated facts relating to income from dairy farming, that too in the cross-examination without any material being available in that regard. Hence, recall of PW.12 sought for deserves to be granted and to that extent, prayer of prosecution deserves to be accepted.
15. Insofar as PW.14 [CW.65] is concerned, he is the Police Inspector who was the Investigating Officer at the relevant point of time, through whom mahazar Exhibit.P11 relating to raid conducted came to be marked and summoning of said witness for tendering further evidence is not only for said purpose, but also for the purposes of marking of other documents which are already on record for which concession has been made by the learned counsel appearing for the respondent and as such prayer for recall of said witness deserves to be accepted. In other words, application filed by the prosecution to the extent of permitting recall of PW.12 and PW.14 only deserves to be allowed.
Hence, the following:
ORDER [i] Criminal Petition is allowed in part.
[ii] Application filed under section 311 of Cr.PC is allowed in part and PW.12 and PW.14 are hereby recalled.
SD/- JUDGE AN/-