Karnataka High Court
Sri. Deelaksha vs State Of Karnataka on 6 July, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:23280
CRL.P No. 2807 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2807 OF 2023
BETWEEN:
SRI DEELAKSHA
S/O LATE SRI RUDREGOWDA
AGED ABOUT 38 YEARS
R/AT 3RD MAIN
MATHIKERE MARKET ROAD
YESWANTHAPURA
BANGALORE - 560 022.
...PETITIONER
Digitally signed by
PADMAVATHI B K (BY SMT. DAKSHYANAMMA, ADV.)
Location: HIGH
COURT OF AND:
KARNATAKA
STATE OF KARNATAKA
BY KUMARASWAMY LAYOUT P.S.
REP BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
...RESPONDENT
(BY SMT. K.P. YASHODA, HCGP FOR R-1)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE
THE ORDER PASSED BY THE XXX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE BENGALURU VIDE ORDER DATED
12.08.2022 AND DIRECT THE XXX ADDITIONALCHIEF
METROPOLITAN MAGISTRATE VIDE ORDER DATED 12.08.2022
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 2807 of 2023
ORDER
1. The petitioner is before this Court calling in question an order dated 12.08.2022 passed by the concerned Court i.e., XXX Additional Chief Metropolitan Magistrate Bengaluru in C.C.No.6014/2019 whereby, the application filed by the petitioner seeking recall of witnesses PWs1 to 5 for the purpose of further cross-examination has been turned down.
2. Heard the learned counsel for the petitioner and learned HCGP for respondent - State.
3. Brief facts leading to file this petition as borne out from the pleadings are as follows:
A complaint came to be registered on 20.07.2018, at 11.30 a.m, on the said date, there has been some attempt by the accused for indulging in what would become an offence under Section of 509 and 354 IPC. The issue in the lis does not concern the merit of the matter. The petitioner before the concerned Court files an application under Section 311 of Cr.P.C., seeking recall of PWs.1 to 5 on the ground that sufficient opportunity was not granted by the concerned Court to cross-examine the witnesses and the witnesses have been short cross-examined. The concerned Court in terms of its -3- NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 order dated 12.08.2022 rejects the application by holding that though the petitioner was granted sufficient opportunity has failed to cross-examine the witnesses and therefore, an opportunity cannot be granted. It is this order that drives the petitioner to this Court in the subject petition.
4. The learned counsel for the petitioner would contend that, if one more opportunity had been granted, the petitioner would have completely cross-examine all the witnesses, since that has not been done, he seeks a direction at the hands of this Court to permit further cross-examination of PWs1 to 5 on a date that would be fixed at the hands of this Court.
5. The learned High Court Government Pleader on the other hand would refute the submission and contend that the petitioner cannot be given multiple opportunities to cross-
examine witnesses. Though opportunity was granted, the petitioner has not chosen to cross-examine the witnesses on several dates. Therefore, the petition would be dismissed.
6. I have given my anxious consideration to the submissions made by the respective learned counsels and have perused the material on record.
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7. The aforesaid narrated facts lie in a narrow compass. The issue at this juncture is not with the merit of the matter. It is with regard to application for further cross-
examination. The cross-examination of PWs.1 to 5 had in fact taken place long ago i.e., in the year 2020. After several dates of the matter being listed before the concerned Court , an application comes to be filed by the petitioner on 07.07.2022, seeking recall of witnesses PWs.1 to 5. The application reads as follows:
"APPLICATION FILED UNDER SECTION 311 OF CODE OF CRIMINAL PROCEDURE
1. That this Hon'ble Court posted the matter for CW1 Evidence and that on 22.06.2022 and this Hon'ble Court recorded the CW1 and thereafter several witness has been examine as PW1, PW2, PW3, PW4 and PW5.
2. That the accused unable to give instructions to the counsel to Cross-examine in the PW1 to PW5 since the accused Father was hospitalize, hence the accused was attending, hence the accused unable to give instructions to cross-examine.
3. That the PW1 to PW5 all are material witnesses hence on the defence of accused to elicited the truth from the witnesses is is just and necessary to Cross-examine the witnesses PW1 to PW5.-5-
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4. That the accused Counsel prays to Re-call the order dated 22.06.2022 and permit the accused Counsel to cross examine the witness PW1 to PW5.
5. That this Hon'ble Court Re-called PW1 to PW5 and posted the matter for Cross-of PW1 to PW5 on 22.06.2022, that the Counsel was unable to appear on the said day, the Counsel was attending case at Tiruppur, tamil Nadu in C.C.No.124/2017, hence the absent of the accused Counsel on bonafide reasons Not intentional.
6. The application is not allowed the accused will be put to great hardship and inconvenience by allowing by application no prejudice will be caused to other side, since on the bonafide reasons could not cross-examine the PW1 to PW5, hence the application may be allowed.
WHEREFORE. the accused counsel most humbly prays that this Hon'ble Court be pleased to Re-call the Oder dated 22.06.2022 and re-call the PW1 to PW5 and permit to cross-examine by the Accused Counsel accused counsel in the interest of justice."
8. The concerned Court answers the said application by its rejection by the following order:
"ORDERS ON APPLICATION -6- NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 "The learned counsel for the accused has filed application U/s311 of Cr.P.C seeking recall of PW1 to 5.
2 The said application is opposed by the learned Sr App by taking contention that, already sufficient opportunity is granted to the accused, but he has not chosen to cross-examined prosecution witnesses. hence, prays to reject the application.
3 Heard.
4. The following points would arise for my consideration.
1. Whether recall of PW1 to 5 is necessary for just decision of this case.?
5. By considering the application, perusing of the order sheet and hearing of the parties, my answer to the above point is in the Negative for the following..., REASONS
6. POINT NO.1:- The learned counsel for the accused urged that, case on the date of cross- examination, at that time he was present befor the fast tract judicial magistrate at Tirupur, Tamil Nadu State, for this reason he was unable to be present before this court and was not able to cross- examined. The reasons is bonafide one. Hence, prays for allow the application.-7-
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7. In this case, PW1 examined on 29.1.2020 and matter is deferred for cross-examination with cost at the cost of learned counsel for the accused.
(i) PW1 is examined on 8.2.2021, at that time, prays for adjournment for cross-
examination before that, PW1 is presented before this court on 12.2.2020 again counsel prays time, this court opined that, there is no valid reason. Accordingly, cross-examination of PW1 is taken a nil. Based on this prayer of the learned counsel for the accused is rejected and cross-
examination of PW2 is taken a nil.
(ii) PW3 is also examined on the same day, for the aforesaid reasons prayer of the learned counsel for the accused is rejected and cross-examination of PW3 is taken a Nil.
(iii) PW 4-10 is examined on 5.4.2021 at that time there was no representation on behalf of the counsel for the accused accordingly, cross of PW4 is taken Nil.
(iv) PW5 is examined on 19.4.2020, at that time, also no representation on behalf of the accused, accordingly, cross-
examination of PW5 is taken as Nil.
8. After that, the learned counsel for the accused filed one application U/s311 of Cr.P.C based on that -8- NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 issued summons to PW1 to 5 Pw1 very much present before this court on 22.6.2022, the learned counsel for the accused produced one important documents along with the application ie., case daily satus. This document discloses that, the learned counsel for the accused is present before the First Judicial Magistrate at tirpur, Tamilnadu State, before that , PW1 was very much present before this court, that that time, accused has not shown his interest to cross-examine him.
9. No doubt, fair opportunity has to be provided to both side not only to the accused side. In this case, accused simply prays time without any valid ground. As held by the Hon'ble Supreme Court of India in various cases, adjournment is not a matter of right, without valid ground. In this regard, I have relied on the judgment of Hon'ble Apex Court rendered in Vinod Kumar Vs. State of Punjab [(2015) 3 SCC 220] and Rajesh Yadav Vs. State of U.P[(2022 SCC Online SC 150] when witnesses is present before the court on that day, cross-examination must be done without adjournment. By following this principles, I am of the opinion that Pw1 is examined 2 years back, it is not safe to recall prosecution witnesses. Therefore, Point No.1 is answered in the Negative and proceed to pass the following..., -9- NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 The application filed by the learned counsel for the accused U/s 311 of Cr.P.C is hereby rejected."
9. A perusal at the order passed by the concerned Court would indicate, complete non application of mind to the reason sought for recall of PWs.1 to 5. The concerned Court though notices that, fair opportunity has been provided to both the sides, for it to be call such fair trial, it has to be both sides i.e., the accused and the complainant. The reason so rendered by the concerned Court is on the face of it erroneous and runs foul of several judgments rendered by the Apex Court interpreting Section 311 of Cr.P.C., and its importance. The latest of which is in the case of VARSHA GARG V. STATE OF MADHYA PRADESH - 2022 SCC OnLine SC 986. The Apex Court in Varsha's case (supra), has clearly held that Section 311 of Cr.P.C., should be interpreted for the purpose i.e., the discovery of truth in a trial and all opportunity should be granted to the accused who is facing trial except in cases of abuse of such opportunity. The Apex Court has held as follows:
"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court "may":
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(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
32. This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court "shall" summon and examine or recall and re-examine any such person "if his evidence appears to the Court to be essential to the just decision of the case". Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
33. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case". Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.
38. Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
39. Section 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled "Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report.25 Both operate in distinct spheres.
40. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other. The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing "is necessary or desirable for the purpose of any investigation, trial or other proceeding"
under the CrPC. As already noted earlier, the power under
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 Section 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case.
41. PWs 33, 41, 43 and 48, who were the nodal officers of Idea, Airtel, Reliance and Vodafone have already been examined. During the examination of PW-41, the nodal officer of Airtel, the witness specifically deposed during the course of examination that:
"2. Call detail of mobile number XXXXXXXXXX, which has 134 pages is Exhibit P- 104, I sent the same detail of the call to the police. Each page of the same has seal of Bharti Airtel on the same. Call detail contains date and time wise detail of call and short message services made/sent and received by the customer. Additionally, location of the mobile number is available in code number along with the time of the call or message for which call detail is provided. Location of the call made by the mobile number in certain time has been shown with codes, I cannot state name of the location today by seeing the code. Location can be stated after decoding the same. We have coding chart for location, by seeing the same location can be started. I don't have aforesaid chart along with me. Aforesaid chart is available in the office."
(emphasis supplied)
42. The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.
43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.
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44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that:
"28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
(emphasis supplied)
45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that:
"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
(emphasis supplied)
46. In the present case, the importance of the decoding registers was raised in the examination of PW-41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement of being relevant material which was not brought on record due to inadvertence.
47. Finally, we also briefly deal with the objection of the respondents regarding the stage at which the application under Section 311 was filed. The respondents have placed reliance on Swapan Kumar (supra), a two judge Bench decision of this Court, to argue that the application should not be allowed as it has been made at a belated stage. The Court in Swapan Kumar (supra) observed:
"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has wide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."
48. In the present appeal, the argument that the application was filed after the closure of the evidence of the prosecution is manifestly erroneous. As already noted above, the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. Though the dismissal of the application and the closure of the prosecution evidence both took place on 13 November 2021, the application by the prosecution had been filed on 15 March 2021 nearly eight months earlier. As a matter of fact, another witness for the prosecution, Rajesh Kumar Singh, was also released after examination and cross-examination on the same day as recorded in the order dated 13 November 2021 of the trial court.
49. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms:
"43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."
(emphasis supplied)
50. Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that:
"27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
(emphasis supplied)
51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that:
"44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential" to an active and alert mind and not to one which is bent to abandon or abdicate.
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NC: 2023:KHC:23280 CRL.P No. 2807 of 2023 Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
(Emphasis supplied)
10. Therefore, in the light of the judgment of the Apex Court and facts narrated hereinabove, I deem it appropriate to give one more opportunity to the petitioner to cross-examine PWs.1 to 5 on a date/s that would be fixed by the concerned Court.
11. For the aforesaid reasons, the following:
::ORDER::
a) The Criminal Petition is allowed.
b) The order dated 12.08.2022 passed by the
XXX A.C.M.M, Bengaluru in
C.C.No.6014/2019 is set-aside.
c) The application filed by the petitioner under
Section 311 of Cr.P.C., stands allowed.
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d) The concerned Court is directed to permit further cross-examination of PWs.1 to 5 by the petitioner on the date fixed by it and the Court shall see, the petitioner shall not drag the proceedings in the garb of further cross-
examination.
e) This opportunity will be last to the petitioner and such application in future would not be entertained.
Sd/-
JUDGE NMS