Karnataka High Court
Basanagouda vs The State Of Karnataka on 19 September, 2019
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.101001/2019
Between:
Basangouda Hanamantagouda Myageri,
Age 27 years, Occ: Agriculture,
R/o.: Malikarjunpur, Tq.: Mundaragi,
Dist.: Gadag.
... Petitioner
(By Shri Anand R.Kolli, Advocate)
And:
1. The State of Karnataka,
Rep. by State Public Prosecutor,
High Court of Karnataka, Bench Dharwad,
Through Mundaragi Police Station,
2. Duragavva W/o.Ramanna Waddar,
Age 45 years, Occ: Coolie,
R/o.: Malikarjunpur, Tq.: Mundaragi,
Dist.: Gadag.
... Respondents
(By Shri Raja Raghavendra Naik, HCGP for R1;
Shri Mahantesh S.Hiremath, Advocate for R2)
This criminal petition is filed under Section 482 of
Cr.P.C. seeking to set aside the impugned order dated
06.05.2019 in Spl.SC/ST. 13/2017, passed by the Addl.
District and Sessions Judge, Gadag.
:2:
This criminal petition coming on for admission this
day, the Court made the following:
ORDER
In this petition, the petitioner is challenging the order passed by the Court of Additional District and Sessions Judge, Gadag in Spl.SC/ST.No.13/2017 for rejecting the application filed by the accused under Section 311 of Cr.P.C.
2. Heard the learned counsel for the petitioner and the learned HCGP for the respondent - State. Learned counsel namely Shri Mahantesh S. Hiremath appearing for respondent No.2 is present, who is permitted to assist the learned HCGP for the respondent
- State, to proceed with the matter.
3. Learned counsel for the petitioner submits that the trial Court had failed to consider the scope and object of Section 311 of Cr.P.C. It reads as under: :3:
"311. Power to summon material witness, or examine person present.- any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
The accused has faced trial for the offence punishable under Section 376 of IPC, besides Section 35(2) of the Protection of Children from Sexual Offences Act, 2012; the allegation made in her complaint and also in the charge sheet laid against the accused, in case the prosecution has to prove the guilt of the accused beyond reasonable doubt, PW1 is a crucial witness for cross- examination for the defence.
4. The second limb of the arguments taken by the learned counsel for the petitioner that PW1 is a :4: crucial witness and liberty shall be given to the accused to defend his case. If the accused is not cross-examined PW1, who is the victim, it is difficult to address the issue relating to the offence leveled against him. These are all the contentions, which taken by the learned counsel for the petitioner for seeking to allow the petition by setting aside the impugned order passed by the trial Court in Spl.SC/ST. No.13/2017, dated 06.05.2019.
5. On the other hand, the learned HCGP for the respondent - Sate has referred Section 35(2) of PCOSO Act, 2012, which stipulates that, the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. In this case PW1 being the victim who has been examined but the accused has not come forward to cross-examine the victim. Therefore, the prayer made by the defence counsel was not considered and discharged PW1 from subjecting her for cross-examination. Hence, the accused himself is to proceed with the case, otherwise, the victim has to undergo trauma at the :5: hands of the accused person. The victim is said to be a minor. Therefore, the reasons, which are assigned and otherwise to say the grounds stated in this petition does not hold any substance to interfere with the impugned order passed by the trial Court in Spl.SC/ST.No.13/2017 for having reject the application filed by the accused under Section 311 of Cr.P.C., accordingly supports the impugned order
6. It is in this context of the contentions taken by the learned counsel for the petitioner relating to the impugned order passed by the trial Court for having rejected the application filed by the accused under Section 311 of Cr.P.C. PW1 who is the victim has to be subjected to cross-examination on behalf of the defence. The case has been deferred for cross-examination of CW4, who is examined as PW1 for considerable period, but it has not done so, even opportunity has been given. The said case was stand posted for evidence, since February 2018. Subsequently, CWs.5, 6, 7, 8, 2, 3, 1, 9 and 10 have been examined on behalf of the :6: prosecution. Pursuant to examination of PW1 and PW3 dates were lapsed and then the counsel for accused filed the present application under Section 311 of Cr.P.C. for recalling PW1 for cross-examination, but the reasons assigned in the application filed by the accused are not justifiable and otherwise to say that no satisfactory reasons have been assigned to recall PW1 for her cross- examination, who is a victim minor girl.
7. The scope and object of Section 311 of Cr.P.C. and also the doctrine of audi alterem partem in the administrative law is for securing the witness for cross- examination and also liberty shall be given to both the parties to enable the Court for right conclusion. In the instant case though PW1 has been subjected to examination on behalf of the prosecution in order to establish the case against he accused for the offence under POCSO Act, 2012. Therefore, it is deemed proper to give an opportunity to the accused to cross-examine the vital witness, i.e., PW1. In terms of the aforesaid reasons and finding, it is deemed appropriate to consider :7: the grounds as urged in this petition. Consequently, the impugned order passed by the Court below in Spl.SC/ST.No.13/2017, dated 06.05.2019 for rejecting the application filed under Section 311 of Cr.P.C. is hereby set aside. Accordingly, I proceed to pass the following:
ORDER The petition filed by the petitioner-accused under Section 482 of Cr.P.C. is hereby allowed and the impugned order passed by the Court below in Spl.SC/ST.No.13/217, dated 06.05.2019 is hereby set aside. Consequently, the application filed by the accused under Section 311 of Cr.P.C. is hereby allowed for securing PW1 for the purpose of cross-examination in the aforesaid case. It is deemed appropriate to issue direction to the trial Court for securing PW1 by imposing costs of Rs.5,000/- upon the accused.
The trial Court is directed to fix the date for securing PW1 for cross-examination by issuing summons :8: and on that date the defence counsel shall proceed with the case for cross-examination of PW1 and conclude the cross-examination. If the defence counsel prolong the cross-examination of PW1, the trial Court is at liberty to impose further costs of Rs.10,000/-. The defence counsel shall deposit cost of Rs.5,000/- at the first instance and only thereafter summons to PW1 be issued and proceed with the cross-examination in accordance with law. The cost shall be paid to PW1, on proper identification.
In view of the disposal of the petition, I.A.No.1/2019 does not survive for consideration. Consequently, I.A.No.1/2019 stands rejected.
Sd/-
JUDGE Vnp*