Karnataka High Court
Sri K Basvaraju @ Basava @ Gaja vs The State Of Karnataka on 26 September, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8091 OF 2013
BETWEEN:
Sri. K. Basavaraju @ Basava
@ Gaja S/o Late Sri. Kenchappa S.,
Aged about 24 years,
R/at Kallodu Village, Kasaba
Hobli, Hosadurga Taluk,
Chitradurga District-577 527. ...Petitioner
(By Sri. L.S. Chikkanagoudar, Advocate)
AND:
1. The State of Karnataka,
Represented by its
Police Inspector,
Malleshwaram Police Station,
Bengaluru-560 020.
2. Sri. Kalleshappa S/o Huchappa,
Aged 54 years,
R/at 3/7, 2nd Floor, 1st Main Road,
Nehrunagar, Seshadripuram,
Bengaluru-560 020. ...Respondents
(By Sri. Vijayakumar Majage, Addl. SPP for R-1;
Sri. S.B. Pavin, Advocate for R-2)
2
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to set aside/quash the impugned order
Annexure-A, dated 18.09.2013 passed in S.C.No.1405/2011
by the LII Additional City Civil and S.J., Bengaluru City,
(CCH No.53) and may further be pleased to allow the
application Annexure-F filed by the petitioner u/S. 217(a)
IPC.
This Criminal Petition coming on for Hearing, this day,
the Court made the following:
ORDER
Petitioner is aggrieved by the order dated 18.09.2013 passed by the LII Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.1405/2011, whereby the application filed by the petitioner (hereinafter referred to as the accused) under Section 217(a) of the Code of Criminal Procedure has been dismissed.
2. The essential facts necessary for disposal of the petition are as follows:
Prosecution laid a charge sheet against the petitioner for the offence punishable under Section 366A of Indian Penal Code. On 11.04.2012, additional 3 charges were framed against the accused under Sections 328, 344, 506 and 376 of Indian Penal Code. Based on these charges, prosecution examined its witnesses including the prosecutrix, who was examined as PW.7. Thereafter, the accused was examined under Section 313 of the Code of Criminal Procedure. After conclusion of the arguments of the accused, the prosecution moved an application under Section 216 of the Code of Criminal Procedure, seeking to alter the charge by incorporating the charge under Section 366 of Indian Penal Code. After hearing, this application was allowed by the trial Court by its order dated 20.04.2013. Pursuant to this order, petitioner herein/accused moved an application under Section 217(a) of the Code of Criminal Procedure, seeking to recall CW.2 Smt. Jyothi (PW.7) for further cross-examination. In para No.4 of the said petition it was averred as under:
"The Accused submits that in view of the modification of the charge for offence punishable U/Sec.366 IPC, the Accused intents to examine 4 CW.2 Smt. Jyothi who has been already examined in the case by the prosecution as PW.7, on the aforesaid charge and as well to elicit the subsequent events that have taken place, which have great bearing on the matter.
This application was opposed by the prosecution and after hearing the parties, by order dated 18.09.2013, learned Sessions Judge dismissed the application.
3. Learned Sessions Judge has assigned two reasons to dismiss the application. First, the prosecution has not brought on record any new facts of evidence after recasting the charge/issues and therefore, there is no necessity to recall PW.7. Second, that the application was filed for the purpose of vexation and for defeating the ends of justice and hence, the accused is not entitled to recall PW.7.
4. Both the above reasonings, in my view cannot be countenanced. Section 217 of the Code of 5 Criminal Procedure, confers an indefeasible right on the accused to recall or re-summon and examine any witnesses, who may have been examined by the prosecution, whenever a charge is altered or added to by the Court, after commencement of the trial. The expression "shall" used in the Section leaves no manner of discretion to the Court when the accused seeks to recall the witnesses for the purpose of cross examination, except in cases where on scrutinizing the material, the Court considers that the application is filed for the purpose of vexation or for delay or for defeating the ends of justice. Therefore, the first reason assigned by the learned Sessions Judge that the prosecution has not brought on record any new facts and therefore, the accused is not entitled to recall the prosecution witnesses being contrary to Section 217 of the Code of Criminal Procedure, cannot be accepted. Needless to say that only because there was sufficient material constituting the charge under Section 366 of 6 Indian Penal Code, the prosecution was driven to file an application seeking alteration of the charge. Under the said circumstances, there was no scope to reject the application on the ground that the prosecution has not brought on record any new facts. Even if this evidence was let in by the prosecution during the examination of PW.7 at the first instance, yet, in the absence of any charge under Section 366 of Indian Penal Code, the accused was not expected to cross examine the witnesses on that charge. In that view of the matter, the first reasoning assigned by the learned Sessions Judge being contrary to the provisions of Section 217 of the Code of the Criminal Procedure and contrary to the material on record, is liable to be set aside.
5. Coming to the second reason assigned by the trial Court that the application was filed with an intent to delay and protract the proceedings and application was vexatious is concerned, this view does not find 7 support from the material on record. As already stated above, initially the charge sheet was filed only under Section 366A of Indian Penal Code and amidst the trial, prosecution came up with an application to alter the charge. Undeniably this application was filed only after the conclusion of the arguments. In the said circumstances, the delay in moving the application cannot be attributed to the accused nor the accused could be blamed for adopting measures to delay and protract the proceedings. The prosecution itself having filed the said application at the fag end of the trial, cannot shift the blame on the accused and on that score, the legal right vested with the accused to recall prosecution witnesses cannot be defeated. Therefore, even the second reasoning assigned by the learned Magistrate for dismissal of the application cannot be sustained.
8
6. In the result the petition deserves to be allowed. However, it is made clear that the accused is entitled to recall or re-summon the witness only to the extent of cross examination of PW.7 on the altered charge and not to introduce any new material as sought for in the application. Therefore, the application filed by the petitioner seeking recall of PW.7 stands allowed only for this limited purpose. The Sessions Court shall control the examination of PW.7 accordingly.
For the above reasons, the Petition is allowed. The impugned order dated 08.09.2013, passed in S.C.No.1405/2011 by the LII Additional City Civil and Sessions Judge, Bengaluru City, is set aside.
Having regard to the fact that the proceedings are pending before the trial Court since 2011, the Sessions Court shall fix a date for further cross examination of PW.7, on which date the petitioner/accused or his counsel shall cross examine PW.7 on the altered charge 9 without seeking any adjournment. If the accused/his counsel fails to cross examine PW.7 on the date fixed by the Sessions Court, the accused shall forfeit his right to cross examine PW.7.
Sd/-
JUDGE BMC