The High Court of Karnataka rejected a criminal petition filed under Section 482 of Cr.P.C. seeking permission for cross-examination of prosecution witnesses. The court held that the petition was filed during completion of 19 years solely to protract proceedings and the inherent power to interfere was summoned sparingly.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11th DAY OF AUGUST, 2021
BEFORE:
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION No.2305/2019
BETWEEN:
V. SHANMUGAM (A-2) SON OF VENKATESH, AGED ABOUT 55 YEARS, RESIDING AT: NO.76, 7TH MAIN ROAD, TATANAGAR BANGALORE-560092.
…PETITIONER
(BY SRI L.V.MURALIDHARA, ADV., APPEARING THROUGH PHYSICAL HEARING)
AND:
THE DEPUTY GENERAL MANAGER, THIMMAIAH ROAD BENGALURU-560001.
(BY SRI. RAHUL RAI K., HCGP APPEARING THROUGH PHYSICAL HEARING)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 12.02.2019 PASSED IN C.C.NO.8118/2002 BY THE
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II A.C.M.M., BENGALURU AND PERMIT THE PETITIONER FOR THE CROSS-EXAMINATION OF THE WITNESSES CW1CW9.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri L.V.Muralidhara, learned counsel for the petitioner is physically present before the Court.
by the learned counsel for the petitioner who is on record. Even though, sufficient time has been given to
cure the defects, neither the learned counsel for the petitioner nor the petitioner is diligent or vigilant to cure the defects.
the respondent-State.
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setting aside the order passed by the Court of II Addl. CMM, Bangalore, in CC.No.8118/2002 dated 12.02.2019 for cross-examination of C.W.1 to C.W.9. Whereas, the counsel for the accused in
C.C.No.8118/2002 has filed an application under Section 311 of Cr.P.C., for examination of material witnesses on the part of prosecution who are arranged as C.W.1 to C.W.9 and in this application sought for summoning the witnesses, but the said application filed by the accused came to be rejected by the court having the jurisdiction. The said impugned order was challenged before the Revisional Court by filing Crl.RP.No.198/2019 and the said revision petition was dismissed by its order dated 11.03.2019. The petitioner namely V.Shanmugam S/o Venkatesh who is arraigned as accused No.2 in CC.No.8118/2002 has filed an application under Section 311 of Cr.P.C., for further cross-examination of C.W.1 to C.W.9.
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nutshell in the case of prosecution is that, respondent No.2-Karnataka State Finance Corporation represented by its Deputy General Manager is the complainant and he lodged complaint before Sriramapura Police Station, Bangalore and based upon the complaint, criminal law was set into motion for the offences punishable under Sections 468, 420 and 120-B r/w Section 34 of IPC. Subsequent to registration of crime and so also setting of criminal law into motion, the Investigation Officer has taken up the case for investigation and laid the charge sheet against the accused in CC.No.8118/2002, which is pending before the Court of II Addl. CMM, Bangalore.
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witnesses to proceed further on the ground that an opportunity has not been given to the accused relating to fair trial of case against the accused.
on record, the case is of the year 2002 and it is almost completion of more than 17 years and now it is almost completed 19 years, but still the case in C.C.No.8118/2002 is pending for trial. The application
filed by the petitioner/accused No.2 under Section 311 of Cr.P.C., is nothing, but to protract the proceedings.
As per the provisions of Code of Criminal procedure, every trial proceedings shall be held expeditiously as possible and in particular from day to day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
This observation was made by the court below in CC.No.8118/2002 by passing impugned order by rejecting the application filed by accused No.2 under
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Section 311 of Cr.P.C., for issuance of summons to C.W.1 to C.W.9 for further cross-examination. However, the court below has placed reliance on the judgment of Hob’ble Apex Court in the case of State Vs. Shivakumar Yadav and Other is that recall of witness is not a matter of course and discretion give to the Court to recall the witnesses and recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how fairness of trial suffered without recall.
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has not attained finality even on the part of defence subject to cross-examination and ultimately, the domain vests with the trial Court for appreciation of evidence under Section 3 of Indian Evidence Act, 1872. As it is almost completion of 19 years, but still the case has not ended in conclusion. However, inherent power should be exercised under Section 482 of Cr.P.C., sparingly, judicially, judiciously and cautiously, in the instant case it does not arise. Consequently, this petition deserve for rejection.
ORDER
Criminal petition filed by the petitioner/accused
No.2 under Section 482 of Cr.P.C., is hereby rejected.
Sd/JUDGE
PB
3 issues framed by the court
Whether the inherent power under Section 482 of Cr.P.C. should be exercised to permit cross-examination of prosecution witnesses to ensure a fair trial.
Whether the objection taken on record by office can be cured given the delay in the proceedings.
Whether the recall of witnesses is necessary to ensure fair trial in a case pending for almost 19 years.
Colour shows how this judgement treated each authority
State Vs. Shivakumar Yadav and OtherReferred¶44
State Vs. Shivakumar Yadav and Other
3 provisions across 2 enactments
V. Shanmugam
State by Sriramapura P.S., Bengaluru
Karnataka State Finance Corporation
K. Somashekar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
