Karnataka High Court
Laxmana And Ors vs State Of Karnataka on 21 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.201448/2018
BETWEEN:
1. LAXMANA
S/O BASAPPA GUDADANAL
AGE: 45 YEARS
2. LAXMANA
S/O DURGAPPA NAIKODE
AGE: 30 YEARS
3. AMARESH
S/O LAXMANA GUDADANAL
AGE: 21 YEARS
4. BALAPPA
S/O AMARAPPA GUDADANAL
AGE: 24 YEARS
5. DHARMANNA
S/O DURGAPPA NAIKODE
AGE: 45 YEARS
6. DURGAPPA
S/O DHARMANNA NAIKODE
AGE: 40 YEARS
2
7. BASALINGAPPA
S/O LAXMANA GUDADANAL
AGE: 28 YEARS
8. SIDDAPPA
S/O LAXMANA GUDADANAL
AGE: 25 YEARS
9. RANGAWWA
W/O LAXMANA GUDADANAL
AGE: 38 YEARS
10. YELLAPPA
S/O AMARAPPA GUDADANAL
AGE: 27 YEARS
11. BHEEMANNA
S/O BASAPPA GUDADANAL
AGE: 40 YEARS
12. AMARAPPA
S/O BASSAPA GUDADANAL
AGE: 55 YEARS
13. LINGAPPA
S/O YELLAPPA NAIKODE
AGE: 30 YEARS
14. AMARAPPA
S/O YELLAPPA NAIKODE
AGE: 45 YEARS
15. YENKAPPA
S/O HANUMAPPA ADIKERI
AGE: 42 YEARS
16. RAMANNA
S/O DURGAPPA NAIKODE
AGE: 28 YEARS
3
17. BASSAPPA
S/O DURGAPPA NAIKODE
AGE: 36 YEARS
18. MANAPPA
S/O YELLAPPA NAIKODE
AGE: 33 YEARS
ALL ARE AGRICULTURIST
R/O IDABHAVI VILLAGE
TQ.LINGASUGUR, DIST.RAICHUR - 587101
... PETITIONERS
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURGI BENCH - 585 106
(THROUGH LINGASUGUR P.S.
DIST: RAICHUR - 587 101)
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 06.12.2018 PASSED IN S.C.NO.53/2011 BY
I ADDL. SESSIONS JUDGE, RAICHUR AND DIRECT THE
TRIAL COURT TO PROVIDE AN OPPORTUNITY TO CROSS
EXAMINE THE WITNESSES ON NEW CHARGE I.E,
U/SEC.149 OF IPC.
4
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned High Court Government Pleader takes notice for respondent. Heard the learned counsel for the petitioners and the learned High Court Government Pleader.
2. Though the matter is listed for admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
3. The petitioners have called in question the correctness and legality of the order dated 06.12.2018 passed by the I Additional Sessions Judge, Raichur, whereby the application filed by the petitioners/accused to recall the witnesses has been rejected.
4. The facts borne on record would indicate that the petitioners herein were tried before the learned Additional Sessions Judge for the offences punishable 5 under Sections 143, 147, 148, 341, 323, 504, 114, 302 read with Section 34 of IPC. The trial was concluded and the matter was set down for judgment. While dictating judgment, the learned Sessions Judge found it necessary to frame additional charge under Section 149 of IPC. Accordingly, the additional charge was framed on 27.11.2018. The relevant order sheet of 27.11.2018 reads as follows:
"Case called at 5 p.m. A1 to A18 are present. Further Addl. charge read over to the accused in the Kannada language. The accused are understood plea of acquisition and they are all did not plead guilty, hence posted for evidence if any by the prosecution side or defence side by 6.12."
5. However, on 06.12.2018 when the accused persons sought to recall the witnesses, the learned Sessions Judge has passed the following order:-
"Case called out.
A1 to A18 present.
Sri. M.N.R. Adv. filed Application U/s 217 Cr.P.C.6
For to provide the opportunity for cross examination of the witnesses, as Spl. P.P. present orally objected. Further perused the Section 246 Cr.P.C. Further, Section not mentioned shall give opportunity to cross examined witnesses. But in this case counsel for accused are already fully cross examined the witnesses on the Addl. Charge framed by this Court.
Hence, I feel it is not necessary to give once again to cross examine to the witnesses as the matter is old one. Hence no proper reason. Hence, the application is hereby dismissed. Posted for arguments by 12-12-18."
6. This order in my view is patently opposed to the principles of natural justice as well as the procedure contemplated under the Code of Civil Procedure. When the Sessions Judge himself has framed additional charge, necessarily an opportunity is required to be given to the accused persons to rebut the said charge either by recalling the witnesses or by producing any evidence in that regard. The Trial Court is also required to examine the accused under Section 313 of Cr.P.C., if any additional 7 material comes on record in support of the said charge. Since the additional charge was framed after the closure of the evidence, there was no occasion for the prosecution to lead any evidence in support of the said charge, nor was there any opportunity to the petitioners to meet the case of the prosecution in respect of the additional charge framed by the Trial Court. In that view of the matter, the order passed by the Trial Court is indefensible. The Trial Court itself having framed the additional charge was ought to have afforded an opportunity to the prosecution as well as the accused persons to produce necessary evidence. There is nothing in the order sheet to indicate that the prosecution has given up its right to adduce additional evidence. For the above reasons, the impugned order cannot be sustained.
7. It is also noticed that the accused persons have filed the application seeking a blanket order to recall all the witnesses. Such a prayer cannot be granted. The accused persons could recall only the witnesses, who have 8 either deposed about the facts and circumstances constituting the offences under Section 149 of IPC and not all the witnesses. Accordingly, the application filed by the accused persons seeking to recall the witnesses is restored to file. The learned Magistrate shall consider the application afresh and shall recall only the witnesses who have deposed with regard to the offence under section 149 of Indian Penal Code for the purpose of cross-examination.
With this observation, the petition is allowed. The impugned order dated 06.12.2018 passed by the I Additional Sessions Judge, Raichur, in S.C.No.53/2011 is set aside. The Trial Court shall consider the application afresh and shall recall only the witnesses who have deposed with regard to the offence under section 149 of Indian Penal Code for the purpose of cross-examination.
Sd/-
JUDGE RSP