Karnataka High Court
Yogish vs State Of Karnataka on 27 June, 2014
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRL.P.No.2540/2014
BETWEEN :
1. YOGISH,
S/O KANTHAPPA POOJARY,
AGED ABOUT 34 YEARS
R/A "CHANDRA NIVASA"
SUBRAYA BETTU,
ANJARU, HIRIYADKA,
UDUPI TALUK,
UDUPI - 574 105.
2. HARIPRASAD,
S/O NARAYANA POOJARY,
AGED ABOUT 27 YEARS,
R/A NADIDARE MANE,
80, BADAGUBETTU VILLAGE,
UDUPI TALUK,
UDUPI-574 105.
3. ANANDA,
S/O KUKRA PANARA,
AGED ABOUT 31 YEARS,
R/A SANNAKIBETTU,
HERGA VILLAGE,
UDUPI TALUK,
UDUPI -574 105. ... PETITIONERS
(BY SRI SANDESH J. CHOUTA, ADV.,)
AND :
1. STATE OF KARNATAKA,
THROUGH MANIPAL P.S.,
REPRESENTED BY PUBLIC PROSECUTOR,
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HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2. K.S.JAIVITTAL,
S/O LATE K.S.SHESHAGIRAYYA,
AGED ABOUT 61 YEARS,
R/A No.143, MADHAVA NAGARA,
MANIPAL,
UDUPI - 574 105. ... RESPONDENTS
(BY SRI KESHAVA MURTHY, ADDL. SPP FOR R1)
THIS CRL.P IS FILED UNDER SECTION 482 OF
CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE
ORDER DATED:10.04.2014 PASSED IN S.C.No.49/2013
WHEREIN THE PRL.S.J., UDUPI DIST. AT UDUPI WAS
PLEASED TO REJECT THE APPLICATION FILED U/S. 311 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRODUCED
HERETO AS ANNEXURE-A, CONSEQUENTLY ALLOW THE
APPLICATION AND DIRECT THE PROSECUTION TO SUMMON
AND EXAMINE 16 MATERIAL WITNESSES i.e. CW's 8, 23, 28,
42, 43, 51, 54, 55, 56, 57, 60, 62, 63, 64, 66 AND 67 WHO
HAVE BEEN LEFT OUT IN THE INTEREST OF JUSTICE AND
FAIR TRIAL.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Accused Nos.1 to 3 in S.C. No.49/2013 pending on the file of Prl. Sessions Court, Udupi, have come up in this petition seeking to quash the order dated 10.04.2014 in dismissing the application filed by them under Section 311 of the Criminal Procedure Code seeking recording of -3- evidence of 16 material witnesses i.e., CW Nos.8, 23, 28, 42, 43, 51, 54, 55, 56, 57, 60, 62, 63, 64, 66 and 67 before cross-examination of PW.62, who is Investigating Officer in the said case.
2. It is the case of petitioners that the offences alleged against them are said to have committed on 20.06.2013. The said offences are punishable under Sections 366, 376D, 506 and 201 read with Section 34 of the Indian Penal Code. As against the complaint lodged, investigation into the complaint is completed and chargesheet is filed. Since the offence alleged being punishable under Section 376 IPC., the same is committed to Sessions Court and registered as S.C.No.49/2013. The prosecution has cited in all 108 witnesses. The trial has begun and prosecution has already recorded the evidence of 61 witnesses. The 62nd witness i.e., PW.62 in the said proceeding is Investigating Officer in the said prosecution. According to petitioners, the matter is presently set down for cross-examination of PW.62 (who was CW.12). It is their case that before cross- -4- examination of PW.62, they should be permitted to examine 16 other material witnesses mentioned in the application filed under Section 311 of Cr.P.C., for the reason that if there is any omission and contradiction in the evidence to be recorded on behalf of the said witnesses, the same could be confronted to the Investigating officer under Section 145 of the Indian Evidence Act. If the cross-examination of PW.62 is completed even before the examination of the aforesaid 16 witnesses, it would be detrimental to the interest of the accused in the aforesaid proceedings. Therefore, there would be denial of fair trial to put forth their case in the form of cross-examination of PW.62 - Investigating Officer.
3. It is seen that the said application filed under Section 311 Cr.P.C., is dismissed by the Sessions Court by its order dated 10.04.2014 on the ground that there is an attempt on the part of the petitioners in trying to protract the proceedings without assisting the Court in disposing of the aforesaid matter at the earliest and also on the premise that it is the prerogative of the prosecution to pick -5- and choose its witnesses to examine them at its convenience. Therefore, accused will have no say as to who should be examined ahead of whom.
4. Heard the learned counsel for petitioners as well as learned Addl. State Public Prosecutor, Sri Keshava Murthy, appearing for the prosecution. On going through the order impugned with reference to the chargesheet and list of witnesses referred to in the said chargesheet and also the list of witnesses referred to in the application filed by petitioners herein under Section 311 Cr.P.C., it is seen that CW.66 is the Doctor, who is said to have examined the victim immediately after the alleged offence is said to have taken place and to whom the description of the accused is narrated by the victim. CW Nos.66 and 8 are panchas for recovery mahazar. CW. No.23 is a witness to seizure of the dress worn by the accused and other are also material witnesses, who have taken part in the seizure of property, under property form (p.f.) in the said proceedings and whose evidence is required to be recorded ahead of the evidence of Investigating officer, PW.62, so -6- that omissions and contradictions if any, in their evidence recorded before the learned Magistrate with reference to their statement under Section 162 Cr.P.C., could be confronted to the Investigating Officer.
5. There appears to be force in the argument canvassed by the learned counsel for petitioners in as much as valuable defence which is available to them at the time of cross-examination would be lost if the said witnesses are not examined before cross-examination of Investigating Officer, PW.62. Learned counsel for petitioners, in support of his arguments, has relied upon the decisions of the Apex Court in the matter of:
1. Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others (2004 Crl.L.J. 2050);
2. Vijay Kumar Vs. State of Uttar Pradesh and another ((2011) 8 SCC 136);
3. P. Sanjeeva rao Vs. State of A.P. (AIR 2012 SC 2242) and
4. Boby alias Sanjeev Singh Vs. State of Madhya Pradesh and Another (2010 Crl.L.J. 3662).-7-
On going through the aforesaid judgments, it is seen that the ratio laid down therein would support the case of petitioners.
6. Accordingly, the present petition is allowed. The order passed by the Prl. Sessions Judge, Udupi, dated 10.04.2014 in S.C.No.49/2013 is hereby set aside and the learned Sessions Judge is hereby directed to record the evidence of CW Nos.8, 23, 28, 42, 43, 51, 54, 55, 56, 57, 60, 62, 63, 64, 66 and 67 in the aforesaid proceedings, before insisting for cross-examination of PW.62 - Investigating Officer.
Sd/-
JUDGE sma