IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI CRIMINAL PETITION NO.7072 OF 2019 BETWEEN:
SYED NAVED SON OF SYED SAEER BABU AGED ABOUT 21 YEARS RESIDING AT NO.11, KRISHNANDA NAGARA NANDINI LAYOUT BENGALURU-560 096 (BY SRI.GURUSWAMY B.S., ADV.) AND:
STATE BY HAL POLICE STATION REPRESENTED BY S.P.P.
HIGH COURT BUILDING BANGALORE-560 001 (BY SRI.R.D.RENUKARADHYA, HCGP) … PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C., TO SET ASIDE THE ORDER DATED: 19.09.2019 PASSED IN SPL.C.C.NO.185/2014 ON THE FILE OF THE HON’BLE LITI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT) AT BENGALURU PASSED ON AN APPLICATION U/S. 311 OF CR.P.C. BY ALLOWING THIS CRIMINAL PETITION (ANNEXURE-A1) AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In the instant petition, petitioner has assailed the order dated 19.09.2019 by which petitioner’s application under Section 311 of Cr.P.C. to recall PW.9 has been rejected.
2. Even though there are no errors as is evident from the reasons stated in para No.7 of the order that petitioner was given sufficient opportunity for cross examination of PW.9 and it was not availed. Ingredients of Section 311 of Cr.P.C. provides to give an opportunity so as to meet the justice.
3. Apex Court in the case of Manju Devi Vs.
State of Rajasthan and another reported in (2019) 6 SCC 203 held as under:
9. 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.
Supreme Court in the case of U.T. Dadra and Nagar Haveli and another Vs. Fathehsinh Mohansinh Chauhan reported in (2006) 7 SCC 529 held as under:
16. The charge-sheet submitted by the police under Section 173 Cr.P.C. after completion of investigation contains the statements of the witnesses as recorded under Section 161 Cr.P.C. and in a case exclusively triable by the court of Sessions there is a duty enjoined on a magistrate to furnish to the accused, free of cost, a copy of the police report including a copy of the FIR, statement of the witnesses under Section 161 Cr.P.C. and other documents as mentioned in Section 207 Cr.P.C. It is on the basis of the charge-sheet that the Magistrate takes cognizance of the offence under Section 190(1)(b) Cr.P.C. Normally, the investigating agency cannot visualize at that stage what will be the nature of defence which an accused will take in his statement under Section 313 Cr.P.C. as the said stage comes after the entire prosecution evidence has been recorded. The prosecution is only required to establish its case by leading oral and documentary evidence in support thereof. While leading evidence the prosecution may not be in a position to anticipate or foresee the nature of defence which may be taken by the accused and evidence which he may lead to substantiate the same. Therefore, it is neither expected to lead negative evidence nor it is possible for it to lead such evidence so as to demolish the plea which may possibly be taken by the accused in his defence. This being the normal situation, an application moved by the prosecution for summoning a witness under Section 311 Cr.P.C., after the defence evidence has been recorded, should not be branded as "an attempt by the prosecution to fill in a lacuna".
4. Having regard to the facts and circumstances r/w Section 311 of Cr.P.C. order dated 19.09.2019 is set aside. Petitioner is permitted to appear on 11.11.2019 for the purpose of cross examination of PW.9. Further, such proceedings be completed within two short dates. Petitioner and other parties are hereby directed co-operate in the matter for early disposal of the main matter. Thus, application of the petitioner under Section 311 of Cr.P.C. stands allowed subject to payment of cost of Rs.5,000/-(rupees five thousand only). Cost shall be paid to the Legal Service Authority, Bengaluru District within a period of four weeks from today.
Sd/- JUDGE BS