IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.5571/2019 BETWEEN:
MR. UDAYA, S/O SATHYA NARAYANA, AGED ABOUT 31 YEARS, THORANADINNIU CAMP, MANVI TQ, RAICHUR DISTRICT.
... PETITIONER (BY SRI PHANIRAJ KASHYAP, ADVOCATE) AND:
THE STATE OF KARNATAKA, BY WOMEN"S POLICE STATION, DEVANAGERE, REP BY SPP, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BANGALORE-01.
... RESPONDENT (BY SRI S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 12.07.2019 PASSED IN S.C.NO.179/2017, PENDING ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS AND SPECIAL JUDGE, DAVANAGERE VIDE ANNEXURE-A; CONSEQUENTLY ALLOW THE RECALL APPLICATION FOR RECALL OF PW 24 AND PW 25 FOR CROSS EXAMINATION BY ACCUSED VIDE ANNEXURE-C.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is accused of the offences punishable under Sections 506, 363, 376 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012. Petitioner is in judicial custody. Petitioner has taken exception to the order dated 12.7.2019 dismissing his application filed under Section 311 of Cr.P.C. to recall PW- 24 and PW-25.
2. Learned advocate for the petitioner submitted that the prosecution in all has examined 26 witnesses and recording of evidence on behalf of prosecution is complete. Petitioner is a poor man. On 1.6.2019 when PW-24 and PW-25 were examined, petitioner’s lawyer was not present in the Court, as he was attending some other matter in Special Court dealing Lokayuktha cases. Petitioner is not conversant with the legal aspects. The learned Trial Judge has recorded that it was stated by the petitioner that no cross-examination would be conducted on behalf of the petitioner. Subsequently, petitioner has filed an application under Section 311 of Cr.P.C. on 17.6.2019 with a prayer to permit the petitioner to recall PW-24 and PW-25 for cross- examination. The said application has been dismissed by the learned Sessions Judge. The learned advocate further submitted that offences are serious in nature and petitioner is in judicial custody. Therefore, one opportunity may be given to cross-examine the doctor and the police officer.
3. Sri S. Rachaiah, learned High Court Government Pleader appearing for the respondent opposing the petition and adverting to the impugned order pointed out that petitioner has changed his advocates on five occasions and delaying the trial.
4. I have carefully considered rival contentions and perused the records.
5. In the impugned order, the learned Trial Judge has recorded the dates and events in extenso. He has also recorded that the petitioner has changed five advocates and he has filed multiple applications under Section 311 of Cr.P.C. to recall the witnesses and the Court has granted all applications.
6. Though a careful reading of the impugned order shows that petitioner has been indulging in acts which cannot be approved of, the fact remains that he is alleged of serious offences mentioned above and he is in judicial custody. PW-24 is a medical doctor in Government service and PW-25 is a police officer. As stated by learned advocate for petitioner, the said witnesses are stationed in Davanagere itself. The said witnesses were examined on 1.6.2019. Thus, about 2½ months have elapsed from the date of their examination-in-chief.
7. Keeping in view the gravity of the offences and the fact that petitioner is in judicial custody, in the opinion of this Court, only one opportunity must be granted to the petitioner by putting him on terms. Hence the following order:
(i) The order dated 12.7.2019 is set aside.
(ii) The application filed under Section 311 of Cr.P.C. dated 17.6.2019 is allowed.
(iii) The learned Trial Judge shall permit the petitioner to examine PW-24 and PW-25 on the next hearing date or on any other date as may be convenient to the Trial Court on a cost of Rs.5,000/- payable to the State exchequer by the petitioner.
Petition is accordingly disposed of.
In view of disposal of the petition, I.A.No.1/2019 does not survive for consideration and the same is also disposed of.
Sd/- JUDGE MD