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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
2
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/-