Allowed

Puneeth @ Benki Puni v. State of Karnataka

Karnataka HC5 Aug 2021CRL.P/5883/2021

Case brief

AI extract

What is this about?

In an anticipatory bail-like criminal petition under Section 482 Cr.P.C., the High Court of Karnataka allowed the petitioner's application to recall prosecution witnesses. The Court held that the previous failure to conduct cross-examination was due to the absence of counsel, and granted a fresh opportunity to ensure a fair trial, citing constitutional mandates regarding legal assistance.

What did the court decide?

The order dated 15-7-2021 rejecting the application under Section 311 Cr.P.C. was set aside, and the matter was allowed for recalling the witnesses with costs.

Puneeth @ Benki Puni Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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CRIMINAL PETITION NO.5883 OF 2021

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BETWEEN:

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PUNEETH @ BENKI PUNI S/O. LATE LAKHSMANA GOUWDA, AGED ABOUT 27 YEARS, RESIDING AT NO.03, 13^TH CROSS, NEAR YELLAMMA TEMPLE, SHRINIVAS NAGAR, BANASHANKARI 3^RD STAGE, BENGALURU – 560 085.

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PERMANENT ADDRESS: P. CHITTANAHALLI, DODDABALA POST, KASABA HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT – 571 432.

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... PETITIONER

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(BY SRI M.S. PRATHAP KUMAR, ADV., FOR SRI K.N. MOHAN)

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AND:

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STATE OF KARNATAKA BY CHENNAMMANNA KERE ACCHUKATTU P.S., REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, DR. AMBEDKAR VEEDHI, OPP: TO VIDHANA SOUDHA, BENGALURU – 560 001.

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SMT. ASHA W/O. DEVANATH, AGED ABOUT 47 YEARS, RESIDING AT NO.57/9, 3^RD MAIN, 7^TH CROSS, SHRINIVASANAGAR, BANASHANKARI 1^ST STAGE, BENGALURU – 560 085.

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... RESPONDENTS

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(BY SRI B.J. ROHITH, H.C.G.P., FOR R-1 & NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED 5-8-2021)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 15-7-2021 i.e. REJECTED THE RECALL APPLICATION FILED BY THE COUNSEL FOR THE ACCUSED, WHICH IS PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (FTSC-1) IN SPL C.C. NO.325 OF 2018 (CRIME NO.150 OF 2018).

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THIS CRIMINAL PETITION IS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is filed by the accused under Section

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482 of the Code of Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’) for setting aside the order dated 15-7-2021 passed by the Additional City Civil and Sessions Judge, Bengaluru, in Spl.C.C. No.325 of 2018 for rejecting the application filed by him under Section 311 of the Cr.P.C.

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Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1-State. Looking to the facts and circumstances of the case, notice to respondent No.2 is dispensed with.

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The case of the prosecution is that, the petitioner is facing trial before the Special Court for the offences punishable under Section 376 of the Indian Penal Code, 1860, and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. The petitioner was pleaded not guilty and prayed for time. On 1-9-2018, the case was posted for cross-examination of P.Ws.1 to 3 and on request of learned counsel for the petitioner, crossexamination of the witnesses was deferred. Subsequently, the prosecution proceeded with other witnesses. Later, the learned counsel for the petitioner filed application under Section 311 of the Cr.P.C. for recalling P.Ws.1 to 3 and permit to cross-examine P.Ws.1

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to 3. Same was allowed by imposing costs of Rs.6,000/-. Subsequently, summons was issued and due to some reasons, they were not able to appear and due to COVID19 lockdown, the accused was also not produced. Subsequently, P.Ws.1 to 3 were present before the Trial Court and the learned counsel for the petitioner requested time for cross-examining P.Ws.1 to 3 and the same was allowed by imposing costs of Rs.500/- each. Again on 7-7-2021, P.Ws.1 to 3 were present, but learned counsel for the petitioner not even chosen to appear and chosen to cross-examine witnesses and hence, cross-examination of P.Ws.1 to 3 was taken as NIL and posted for arguments.

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Again on 15-7-2021, the learned counsel filed an application for recalling P.Ws.1 to 3 which came to be dismissed and posted the matter to hear the arguments. On 19-7-2021, the matter was taken as heard. On 26-7-2021, the case was adjourned to 4-8-2021 for pronouncing judgment. The same is under challenge.

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Learned counsel for the petitioner submits that if permission is not granted to cross-examine P.Ws.1 to 3, prejudice would be caused to the petitioner as P.Ws.1 to 3 and the victim are important witnesses to be crossexamined. Right of cross-examination is the fundamental right of the accused granted under the Constitution of Indian. Hence, he prayed for granting one more opportunity.

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Per contra , the learned High Court Government Pleader though objected the petition, but fairly concedes that an opportunity to be granted for cross-examination of the witnesses.

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Upon hearing the arguments and perusal of the record, the petitioner filed application under Section 311 of the Cr.P.C. to recall P.Ws.1 to 3, which came to be rejected. Though cross-examination was conducted in September-2018, the matter was dragged for one year for one or the other reasons. After March-2020, there was

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lockdown due to COVID-19 and hence, the parties were not permitted to appear physically as per the Standard Operating Procedure (SOP). Unlock was made subsequently after reduction in COVID-19 cases. The Trial Court record reveals that the witnesses were present, but the learned counsel for the petitioner remained absent. Hence, their cross-examination was taken as NIL. When the petitioner had filed application for recalling the witnesses, the Trial Court ought to have given one more chance for cross-examining P.Ws.1 to 3. Crossexamination of the witnesses is fair trial granted to the accused under Article 21 of the Constitution of India.

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The Division Bench of this Court in Criminal

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Appeal No.1459 of 2019 decided on 23-12-2020 , at paragraph Nos.22 and 23, has held as under:

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“22. We have come across several cases, wherein the trial Courts during trial when the accused counsel was absent, closes the

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cross-examination of the defence as nil and proceed to pass the judgment of conviction and order of sentence against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the counsel for the defence was not present on the particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that opportunity should be given to the accused to engage the services of counsel or it is the duty of the Court to ensure to provide free legal assistance to the accused by appointing advocate from the Legal Services Authority, in order to provide fair trial.

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23. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf.

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In those circumstances, the Court should act as Societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. Because of the mistake committed by the learned counsel for the accused, the accused should not be denied opportunity to cross-examine the prosecution witnesses. Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure.”

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Further, in the above said Criminal Appeal, the Division Bench of this Court has also relied upon the judgment of the Hon’ble Supreme Court in the case of ASHOK DEBBARMA v. STATE OF TRIPURA reported in (2014) 4 SCC 747 , wherein at paragraph Nos.35 to 38, it has held as under:

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“35. Can the counsel's ineffectiveness in conducting a criminal trial for the defence, if established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW 1 and few other witnesses. Further, it was pointed out that the counsel also should not have cross-examined PW 17, since he was not put to chief-examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 : 466 US 668 (1984)] , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal

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right of the accused to have a fair trial, which the accused was deprived of.

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36. Right to get proper and competent assistance is the facet of fair trial. This Court in M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] , State of Haryana v. Darshana Devi [(1979) 2 SCC 236], Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] and Ranjan Dwivedi v. Union of India [(1983) 3 SCC 307 : 1983 SCC (Cri) 581], pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution. Section 304 CrPC provides for legal assistance to the accused on State expenditure. Apart from the statutory provisions contained in Article 22(1) and Section 304 CrPC, in Hussainara Khatoon (4) case [(1980) 1 SCC 98 :

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1980 SCC (Cri) 40] , this Court has held that: (SCC p. 105, para 7).

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“7. … This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of

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reasons such as poverty, indigence or incommunicado situation….”

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37. The question raised, in this case, is with regard to ineffective legal assistance which, according to the counsel, caused prejudice to the accused and, hence, the same may be treated as a mitigating circumstance while awarding sentence. A few circumstances pointed out to show ineffective legal assistance are as follows:

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(1) Failure to cross-examine PW 1, the injured first informant which, according to the counsel, is a strong circumstance of “ineffective legal assistance”.

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(2) The omission to point out the decision of this Court in Dalbir Singh [State of Punjab v. Dalbir Singh, (2012) 3 SCC 346 : (2012) 2 SCC (Cri) 143] , wherein this Court held that Section 27(3) of the Arms Act was unconstitutional, was a serious omission of “ineffective legal advice”, at the trial stage, even though the High Court has found the appellant not guilty under Section 27 of the Arms Act, 1959.

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(3) Ventured to cross-examine PW 17, who was not put to chief examination.

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38. Right to get proper legal assistance plays a crucial role in adversarial system, since access to counsel's skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 : 466 US 668 (1984)] , the US Court held that a convicted defendant alleging ineffective

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assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel's errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel's unprofessional errors, the results would have been different. The Court also held as follows: (L Ed p. 682)

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“… Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable

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professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case.”

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The Division Bench of this Court has not only set aside the judgment of conviction, but remanded the matter back for cross-examining the witnesses and to dispose of the same. Copy of the judgment was circulated to all the Judicial Officers in the State through their units to ensure that sufficient opportunity to be provided to the accused to cross-examine the prosecution witnesses in order to provide fair trial to fulfill the constitutional mandate as well as the provisions of the Code of Criminal Procedure, strictly in accordance with law. In view of the above judgment, I am of the view that the impugned order passed by the Trial Court is not sustainable in law and the same requires to be set aside.

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For the reasons stated above, the petition is allowed. The order dated 15-7-2021 passed by the Additional City Civil and Sessions Judge, Bengaluru, in Spl.C.C. No.325 of 2018 rejecting the application under Section 311 of the Cr.P.C. is set aside and allowed for recalling the witnesses with costs of Rs.4,000/- (Rupees four thousand only) each including the costs imposed by the Trial Court.

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Learned counsel for the petitioner shall not seek any adjournment for the purpose of further cross-examination and the victim shall not be dragged to the Court repeatedly in view of the provisions of Section 33(5) of the Protection of Children from Sexual Offices Act, 2012. The Trial Court shall dispose of the matter in accordance with law.

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Sd/JUDGE

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kvk

Puneeth @ Benki Puni v. State of Karnataka

Case brief

What is this about?

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Puneeth @ Benki Puni v. State of Karnataka

Case brief

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