Manjunath vs The State Of Karnataka on 12 June, 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12TH DAY OF JUNE, 2017

BEFORE

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

CRL.P NO.4521 OF 2017

BETWEEN:

1. MANJUNATH
S/O G.J. KRISHNAYYA @ KRISHNAPPA
AGED ABOUT 34 YEARS
R/AT DOOR NO.409
27TH ROAD, CHANNAPATANA
KHB LAYOUT
NEAR NEW BUS STAND
HASSAN-573 201.

2. G.J. KRISHNAYYA @ KRISHNAPPA
S/O JAVARASHETTY
AGED ABOUT 60 YEARS
R/AT DOOR NO.409
27TH ROAD, CHANNAPATANA
KHB LAYOUT
NEAR NEW BUS STAND
HASSAN-573 201.

3. SMT. B. VARALAXMI
W/O G.J. KRISHNAYYA @ KRISHNAPPA
AGED ABOUT 56 YEARS
R/AT DOOR NO.409
27TH ROAD, CHANNAPATANA
KHB LAYOUT
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NEAR NEW BUS STAND
HASSAN-573 201.
…PETITIONERS
(BY SRI: R.B. DESHPANDE, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY SURATHKAL POLICE STATION
MANGALURU-D.K-575 014.

(REPTD. BY STATE PUBLIC PROSECUTOR
HIGH COURT, BUILDINGS
BENGALURU-560 001)
…RESPONDENT

(BY SRI: S. RACHAIAH, HCGP)

THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED 17.05.2017 PASSED
BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN S.C. NO.75/2015 AND ALLOW THE APPLICATION
FILED U/S 311 CR.P.C. TO RECALLING P.W 6, 7 AND 11 FOR
FURTHER CROSS-EXAMINATION.

THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:

ORDER

Heard the learned Counsel for the petitioners and perused

the order impugned in the petition.

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2. The petitioners have called in question the order

passed by the Trial Court on the application filed by them under

Section 311 of Cr.P.C. seeking permission of the Court to further

cross examine PWs.6, 7 and 11 in SC No.75/2015. The said

application came to be dismissed on 17.05.2017. It is

undisputed fact that originally the Court has framed charges

against the petitioners for the offence under Sections 498A and

304B read with Section 34 of IPC. It is also not in dispute that

subsequently the Court has altered the charges under Section

306 IPC in addition to the charges already framed. Thereafter,

the case has been set down for arguments. At the time of

arguments, it is observed by the Trial Court that the advocate

appearing for the accused stated that he has no further

evidence. The learned Public Prosecutor has also stated that he

has no further evidence. Therefore, the matter was set down for

arguments.

3. After completion of the entire evidence, the Court

recorded the statement under Section 313 Cr.P.C. and posted

the case for arguments. Thereafter, the learned Counsel for the
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accused filed an application under Section 311 Cr.P.C. seeking

indulgence of the Court to permit him to further cross examine

PWs.6, 7 and 11. In the application, it is categorically stated

that as the charges have been further framed under Section 306

IPC, petitioner’s Counsel further wants to cross examine the said

witnesses. The said application was contested by the learned

Public Prosecutor stating that the evidence already recorded is

sufficient as the evidence of PWs.6, 7 and 11 were cross

examined at length. Just for the sake to fill up the gaps, an

opportunity was sought for, by the petitioners, therefore, the

application is not maintainable.

4. The Trial Court solely relying upon the words used

under Section 311 Cr.P.C stating that it is the discretionary

power of the Court to either allow or reject the said application,

on exercising such discretion has rejected the application. It is

observed at page 4 relying on the evidence already recorded,

the Court has almost gone to the extent of appreciating the

evidence on record and came to the conclusion that further cross

examination of those witnesses is not necessary.
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5. As already argued by the learned Counsel for the

petitioners, the Court has no jurisdiction to deal with the

appreciation of evidence at that particular point of time. It is a

matter of right that the accused is entitled to cross examine the

witnesses, when charges are altered. The Court has only

bestowed its attention to Section 311 of Cr.P.C. and not to

Section 217 of Cr.P.C., where it says whenever a charge is

altered or added to by the Court after commencement of the

trial, the prosecutor and the accused shall be allowed to recall or

re-summon, and examine with reference to such alteration or

addition, any witness who may have been examined, unless the

Court, for reasons to be recorded in writing, considers that the

prosecutor or the accused, as the case may be, desires to recall

or re-examine such witness for the purpose of vexation or delay

or for defeating the ends of justice. Therefore, it is only

incumbent upon the Court to reject the said application by giving

finding stating that the same has been filed to delay the

proceedings or to defeat the ends of justice. If these aspects are

not available and no findings have been given by the Trial Court,
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then the Trial Court is bound to give an opportunity to the

accused to recall or re-summon any of the witnesses already

examined by the parties for further examination and for cross

examination.

6. Section 311 of Cr.P.C. though gives a discretion to

the Court, but Section 217 of Cr.P.C. is mandatory in nature.

But depending upon the facts and circumstances under peculiar

or special reasons to be recorded, the Court can still reject the

said application. Of course, there is some observation made by

the Trial Court that after framing of additional charges, when the

matter has again posted for arguments, the learned Counsel has

submitted that he has no further evidence. However, it is not

forthcoming as to under what circumstances, the Counsel has

stated in the said manner. It is submitted by the learned

Counsel before this Court that the person who actually

conducted trial was not present and his junior counsel has

submitted the same and subsequently senior counsel came to

know about the same and then he requested to recall the
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witnesses and without any unnecessary delay, he has filed an

application to recall the witnesses.

7. On perusal of the above said facts and

circumstances, it is borne in mind that the matter is still before

the Trial Court and I deem it appropriate that an opportunity

should be given to both the parties so as to avoid future

complication and multiplicity of proceedings. Therefore, I am of

the opinion that the order passed by the Trial Court deserves to

be set aside by allowing the application filed under Section 311

Cr.P.C. by the accused.

8. Hence, the following:

ORDER

The petition is allowed. The order dated 17.05.2017

passed in SC No.75/2015 by the IV Addl. District and Sessions

Judge, DK, Mangaluru on the application filed under Section 311

Cr.P.C. is hereby set aside.

Consequently, the said application is allowed and the Trial

Court is hereby directed to provide an opportunity to the
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accused to recall PWs.6, 7 and 11 and to cross examine them on

the altered charges.

Sd/-

JUDGE

*bgn/-

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