Allowed

Nagaraj S/O. Meghappa Lamani v. the State of Karnataka

Karnataka HC28 Jun 2018CRL.P/100747/2018

Case brief

AI extract

What is this about?

High Court allowed Criminal Petition setting aside the Special Court's rejection of a Section 311 Cr.P.C. application. The Court permitted recalling the victim witness for further cross-examination subject to the accused depositing Rs. 6,000 as cost to the witness, considering the delay was largely due to court boycott.

What did the court decide?

Order dated 23.02.2018 set aside; application under Section 311 Cr.P.C. to recall witness allowed subject to deposit of Rs. 6,000 cost payable to P.W.1 within two weeks.

Nagaraj S/O. Meghappa Lamani Vs the State… — Civil Procedure and Limitation | Karnataka HC (2018)

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CRL.P.No.100747/2018

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF JUNE, 2018

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL PETITION NO.100747/2018

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BETWEEN:

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NAGARAJ S/O MEGHAPPA LAMANI, AGE: 25 YEARS, OCC: COOLIE, R/O ANKASAPUR TANDA, TQ.RANABENNUR, DIST: HAVERI.

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... PETITIONER

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(BY SRI.LAXMAN T.MANTAGANI & SRI.NAGARAJ J.APPANNAVAR, ADVS.)

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AND:

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THE STATE OF KARNTAKA, REP.BY ADDL. SPP, HIGH COURT PREMISES, DHARWAD BENCH, DHARWAD. (SRI.PRAVEEN K.UPPAR, HCGP)

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... RESPONDENT

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 23.02.2018 IN SPECIAL SC.NO.29/2015 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI ON I.A. FILED UNDER SECTION 311 OF CR.P.C. AND ALLOW THE ABOVE CRIMINAL PETITION.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

CRL.P.No.100747/2018

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ORDER

The present petitioner who was accused in Special S.C.No.29/2015 on the file of the Principal District and Sessions Judge and Special Judge, Haveri (henceforth for brevity referred to as “special Court”) has filed this petition seeking setting aside of the order passed by the special Court dated 23.02.2018 in Spl.S.C.No.29/2015, wherein his application filed under Section 311 of The Code of Criminal Procedure, 1973 (henceforth for brevity referred to as “Cr.P.C.”) seeking recalling of P.W.1 for further crossexamination was rejected.

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The summary of the case as could be gathered from the available material is that, the Ranebennur Rural Police have registered a case in crime No.149/2015 against the present petitioner and other accused for the offences punishable under Sections 366, 376 r/w Section 34 of Indian Penal Code,1860 (henceforth for brevity referred to as “IPC”) and under Sections 4, 6 and 12 of Protection of Children from Sexual Offences Act, (henceforth for brevity

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CRL.P.No.100747/2018

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referred to as “POCSO”) and under Sections 9, 10, and 12 of Prohibition of Child Marriage Act.

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After completing the investigation, the

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complainant-police are said to have filed charge sheet against accused Nos.1 and 2 for the offences punishable under Section 376 of IPC and under Sections 4 and 11 of POCSO Act. The special Court proceeded to hold a trial in the matter. Accordingly, the victim girl is said to have been examined as prosecution witness No.1 (P.W.1) on 19.08.2016. Her cross-examination was adjourned at the request of the accused. On 28.09.2016, she was crossexamined in part. Thereafter, when the matter was listed on 16.06.2017 for her further cross-examination, due to boycott call given by the advocates, the counsel for the accused did not appear in the Court. Recording the details in the order sheet itself, the special Court closed recording of evidence of P.W.1 treating that there was no further cross-examination from the accused side. It is thereafter, the accused filed application under Section 311 of Cr.P.C.

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CRL.P.No.100747/2018

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on 07.10.2017, which application came to be rejected by

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the special Court by its order dated 23.02.2018. It is the said order, accused No.1 has sought for setting aside in this petition.

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Though this matter is listed in the admission

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list, with the consent from both side, the matter is taken up for its final disposal.

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Heard arguments from both side.

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The learned counsel for the petitioner while

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reiterating the contention taken up in the memorandum of petition even in his arguments submitted that, the application under Section 311 of Cr.P.C. was filed within four months from the date of taking further crossexamination of P.W.1 as nil, however, the special Court wrongly took it as beyond 1½ years. He further submitted that the accused shall not be denied an opportunity to cross-examine the witness, when in fact there is no contribution from his side in the delayed trial.

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CRL.P.No.100747/2018

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The learned Government Pleader appearing for

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the respondent in his argument submitted that, the very fact that on 16.06.2017, the further cross-examination of P.W.1 did not take place, as the advocates called boycott of Courts, that itself disentitle the accused for the relief sought for under Section 311 of Cr.P.C.

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A perusal of the charge sheet material placed before this Court including the certified copy of the deposition of P.W.1 the alleged victim girl, go to show that the victim though claims herself to be a minor has also stated that the present accused No.1/petitioner is her husband. She has given a detailed account of the alleged incident. It cannot be lost sight of the fact that she was partly cross-examined on 28.09.2016. Thereafter, the matter was listed for her further cross-examination on 16.06.2017, on which day the counsel for the accused did not appear in the Court. In that regard, the special Court has recorded the

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reason that the advocates had given a call for an indefinite time Court boycott. Quoting the judgment of the

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CRL.P.No.100747/2018

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Hon’ble Apex Court in Ex-Captain Harish Uppal Vs.Union of India and Another W.P.No.394/1993, 821/90, 320/93 dated 17.12.2002 , the Court further observed that there was an inordinate delay of 1½ years in filing the recalling application, as such, for the said delay and for the reason that, since the matter was shown to be settled there, the very purpose of evidence in examination-in-chief of P.W.1 would be defeated, it rejected the application filed by the accused.

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As already observed above, P.W.1 in her examination-in-chief itself has stated that she is the wife of accused No.1 (petitioner herein). Though she has given a detailed account of her alleged marital life with petitioner, but it cannot be ignored of the fact that she was put to cross-examination in part without much delay by the accused side. It is only on the subsequent day in one single hearing there was absence from the side of the accused in the Court below.

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The special Court while rejecting the application has stated that, in view of the fact that the applicant has stated that the matter has been settled between the parties would defeat the very evidence given by P.W.1 in her examination-in-chief. Merely because the applicant says that he has settled the matter with the other side would not by itself deprive him of his right to cross-examine the other side witness. However, at the time of appreciating the evidence lead before it, the Court is required to consider all aspects and circumstances of the case including the period of gap between examination-in-chief and the cross-examination, the developments, that is said to have taken place in the meantime etc.

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In the instant case, when P.W.1 herself has said that she is the wife of petitioner/accused No.1 and that the alleged non-appearance of the learned counsel for the accused is on one occasion, I am of the view that, in the best interest of justice and to ensure that accused gets a fair trial in the Court below, he must be given an opportunity to continue

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his cross-examination of P.W.1. At the same time, the inconvenience caused to the alleged victim girl in the process also cannot be ignored. As such, imposing of cost to strike the balance for the inconvenience caused to the girl is warranted in the situation. Accordingly, I proceed to pass the following:

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ORDER

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The petition is allowed.

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The order dated 23.02.2018 passed by the Principal District and Sessions Judge and Special Judge, Haveri in Special S.C.No.29/2015 is set aside.

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I.A. filed by the present petitioner under Section 311

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of Cr.P.C. in the Court below seeking recalling of P.W.1 for her further cross-examination is allowed, however, subject to the condition that the present petitioner (accused in the Court below) depositing a cost of `6,000/- payable to P.W.1 within two weeks from today.

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CRL.P.No.100747/2018

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Subject to payment of the cost, the special Court

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shall proceed in the matter in accordance with law.

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Registry to send a copy of this order immediately to

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the Court below.

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In view of disposal of the main matter,

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I.A.No.1/2018 does not survive for consideration.

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Sd/-

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JUDGE

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MBS/-

Nagaraj S/O. Meghappa Lamani v. the State of Karnataka

Case brief

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Nagaraj S/O. Meghappa Lamani v. the State of Karnataka

Case brief

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