Allowed

Sri. Prakash Vithal Pol v. the State of Karnataka

Karnataka HC25 Feb 2021CRL.P/100102/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition under Section 482 Cr.P.C. setting aside an order rejecting recall of prosecution witnesses. The court held that effective cross-examination was essential due to grave charges and witness incongruities, directing recall of P.W.1 to P.W.3 and P.W.5 upon payment of costs.

What did the court decide?

The impugned order dated 23.12.2020 was set aside; the Court below is directed to recall P.W.1 to P.W.3 and P.W.5 for further cross-examination on payment of Rs. 2,000/- each by petitioners.

Sri. Prakash Vithal Pol Vs the State of… — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P. KRISHNA BHAT

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CRL.P.NO.100102 OF 2021

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BETWEEN

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SRI. PRAKASH VITHAL POL AGED ABOUT 37 YEARS, OCC. BUSINESS, JATRAT VES, NIPPANI, TQ. CHIKODI, DIST. BELAGAVI-590001

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SRI. SURAJ BALKRISHNA PATIL AGED ABOUT 31 YEARS, OCC. MECHANIC, R/O. LAKHANAPUR VILLAGE, TQ. NIPPANI, DIST. BELAGAVI 590001

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SRI. KIRAN VITHAL POL AGED ABOUT 50 YEARS, OCC. BUSINESS, R/O. JATRAT VES, NEAR SHIVA TEMPLE, DHOR GALLI, NIPPANI, TQ. NIPPANI, DIST. BELAGAVI 590001

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SRI. CHANDRAKANT KIRAN POL AGED ABOUT 24 YEARS, OCC. BUSINESS,

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R/O. JATRAT VES, NEAR SHIVA TEMPLE, DHOR GALLI, NIPPANI, TQ. NIPPANI, DIST. BELAGAVI 590001.

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...PETITIONERS

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(BY SRI. RAMACHANDRA A MALI, ADV.,)

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AND

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THE STATE OF KARNATAKA REP. BY NIPPANI TOWN POLICE, NOW REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD 580011.

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…RESPONDENT

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(BY SRI. PRAVEEN K UPPAR, HCGP)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE IMPUGNED ORDER DTD.23/12/2020 IN S.C.NO.146/2017 PASSED BY LEARNED VII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKKODI ON APPLICATION DTD.24/11/2020 IN S.C.NO.146/2017 INSOFAR AS THE SAME RELATES TO REJECTING THE APPLICATION FOR RECALLING OF PW1 TO 3 AND PW 5 FOR FURTHER CROSS EXAMINATION BY THE DEFENSE AS THE SAME BEING NOT SUSTAINABLE IN LAW AND CONSEQUENTLY ALLOW THE APPLICATION DTD.24/11/2020 FILLED U/SEC.311 OF CR.P.C. IN S.C.NO.146/2017 ON THE FILE OF VII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT CHIKKODI AS PRAYED FOR THEREIN.

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

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ORDER

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In this petition filed under Section 482 of Cr.P.C.,

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the petitioners are praying for setting aside the order dated 23.12.2020 passed on an application filed by them under Section 311 of Cr.P.C., in S.C.No.146/2017 on the file of the learned VII Additional District and Sessions Judge, Belagavi, Sitting at Chikkodi, by which the request of recalling P.W.1 to P.W.3 and P.W.5 for further crossexamination was rejected.

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The petitioners have been charge sheeted for offences punishable under Sections 341, 323, 307, 504, 56 read with Section 34 of IPC and after committal, the case is pending before the learned VII Additional District and sessions Judge, Belagavi, sitting at Chikkodi in S.C.No.146/2017. The charges have been framed and the trial is in progress. The certified copies produced show that P.W.1 was examined on 27.12.2018, P.W.2 and P.W.3

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were examined on 22.03.2019 and P.W.5 was examined on 06.11.2020.

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On 25.11.2020, the accused changed their learned defence counsel and thereafter filed an application under Section 311 of Cr.P.C., with a prayer to recall P.W.1 to 5 for cross-examination. Learned Public Prosecutor filed his objections. After hearing, the learned Sessions Judge has passed the impugned order dated 23.12.2020 allowing the application only insofar as recalling of P.W.4 is concerned and rejecting the prayer for recalling P.W.1 to P.W.3 and P.W.5. Aggrieved by the said order dated 23.12.2020, the present petition has been filed.

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Learned counsel for the petitioners submits that the accused-petitioners had engaged a learned counsel for defending them in the case before the learned Sessions Judge and due to lack of experience, he could not crossexamine P.W.1 to P.W.3 and P.W.5 effectively and comprehensively. He submits that on account of the same various contradictions and omissions were not elicited

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from the witnesses even though during trial they had come out with entirely a new case. He therefore, submits that unless P.W.1 to P.W.3 and P.W.5 are recalled and an opportunity of cross-examining them further is not afforded to the petitioners, gross injustice will be occasioned and thereby miscarriage of justice would ensue. Learned counsel for petitioners in support of his contentions has placed reliance on the decision of the Hon’ble Supreme Court in the case of Natasha Singh v. Central bureau of Investigation reported in 2013 (5) SCC 741 . He, therefore, prays that the petition deserves to be allowed.

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Learned HCGP, per contra, submits that once

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the witnesses have been cross-examined in full and the matter goes to the further stage of examining other witnesses, the accused are not entitled to have the luxury of recalling the witnesses again and again and therefore, the application filed was misconceived and on proper consideration of the same on merits, the learned Sessions

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Judge has rightly rejected said application by allowing only insofar as prayer to recall P.W.4 is concerned. He further submits that yet another risk involved in recalling the witnesses after their cross-examination was over is that there is likelihood of manipulation of the witnesses by the accused. He therefore, submits that there is no merit in this petition and it is required to be dismissed in the interest of justice.

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I have given my anxious consideration to the submissions made on both sides and I have perused the impugned order as well as the deposition of P.W.1 to P.W.3 and P.W.5 and the charge sheet papers.

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The accused-petitioners are facing trial on the allegation of having committed offences punishable under Sections 341, 323, 307, 504, 506 read with Section 34 of IPC. It cannot be disputed that the charges against the petitioners are grave in nature and therefore, they should have best and comprehensive opportunity of crossexamining the witnesses for unraveling the truth. The

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grievance of the petitioners is that P.W.1 to P.W.3 and P.W.5 had projected wholly new case when they were in the witness box and there was a great need on the part of the defence counsel to cross-examine them comprehensively on the case projected by the prosecution as well as the new twist given by the witnesses when they were in the witness box. The further grievance of the learned counsel for the petitioners is that on account of lack of experience on the part of the then learned counsel appearing for the accused, the cross-examination conducted remained perfunctory in nature, thereby jeopardizing the interest of the accused.

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A perusal of the cross-examination of P.W.1 to P.W.3 and P.W.5 no doubt supports the contention of the learned counsel for the petitioners. It also cannot be disputed that if proper and effective cross-examination of the prosecution witnesses is not done on behalf of the accused, truth will be the causality and in the said process the life and liberty of the accused would suffer. When the

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accused are put on trial on allegations of having committed grave offences, they are entitled to have their defence properly put forth before the Court and only way of doing it is through a comprehensive cross-examination. It is also required to be noticed that the trial commenced with examination of P.W.1 on 27.12.2018 and even as on date, the trial remains inconclusive and the delay is occasioned substantially on account of lack of diligence on the part of the accused. Taking into consideration the entire aspect of the matter and also superior interest of justice in affording proper opportunity for putting forth the case of the accused before the Court, I am of the view that the petition deserves to be allowed on certain terms. Hence, the following:

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ORDER

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The order dated 23.12.2020 passed on the application filed by the petitioners under Section 311 of Cr.P.C., in S.C.No.146/2017 on the file of the VII Additional District and

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Sessions Judge, Belagavi, Sitting at Chikkodi, is hereby set aside and the Court below is directed to recall P.W.1 to P.W.3 and P.W.5 for further cross-examination on payment of cost of Rs.2,000/- each to P.W.1 to P.W.3 and P.W.5 by the petitioners.

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The further cross-examination of the witnesses shall be permitted only if the accused-petitioners deposit the costs imposed on them within one week from the date of receipt of certified copy of this order by the learned Court below. Send a copy of this order to Trial Court forthwith.

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In view of the above, I.A.No.1/2020 does not survive for consideration and accordingly, it is also dismissed.

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Sd/JUDGE

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yan

Sri. Prakash Vithal Pol v. the State of Karnataka

Case brief

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Sri. Prakash Vithal Pol v. the State of Karnataka

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