Karnataka High Court
Manjunath vs The State Of Karnataka on 12 June, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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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 4 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. 5
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, 6 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 7 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 8 accused to recall PWs.6, 7 and 11 and to cross examine them on the altered charges.
Sd/-
JUDGE *bgn/-