Kademada a Poovaiah Vs the State of Karnataka

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 3910 OF 2024 (482(Cr.PC) / 528(BNSS)

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BETWEEN:

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KADEMADA A POOVAIAH S/O LATE APPACHU, AGED ABOUT 48 YEARS, R/AT KUNDA VILLAGE AND POST, GONIKOPPAL, KODAGU DISTRICT - 571 217

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…PETITIONER

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(BY SMT. SAMASHRITHA.R, ADVOCATE FOR SRI. AKARSH KUMAR GOWDA.,ADVOCATE) AND:

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Digitally signed by LEELAVATHI S R Location: High Court of Karnataka

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THE STATE OF KARNATAKA BY ITS SUB-INSPECTOR OF POLICE, GONIKOPPAL POLICE STATION, GONIKOPPAL, KODAGU DISTRICT – 571 217. REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU – 560 001.

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SRI UTHAPPA K P S/O PONNAPPA, AGED MAJOR, R/AT KUNDA VILLAGE AND POST, GONIKOPPA, KODAGU DISTRICT - 571213.

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…RESPONDENTS

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(BY SRI.THEJESH.P, HCGP FOR R-1)

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO ALLOW SAID CRL.P AND SET ASIDE THE ORDER DATED 26.02.2024 MADE ON THE APPLICATION UNDER SEC.242 R/W 311 OF CR.PC IN C.C.NO.108/2021 ON THE FILE OF THE CIVIL JUDGE AND J.M.F.C PONNAMPET.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the accused in C.C.No.108/2021 is directed against the impugned order dated 26.02.2024 passed by the Civil Judge and JMFC, Ponnampet (for short “the Trial Court”), whereby the application filed by the prosecution under Section 242(2) r/w. Section 311 Cr.P.C., seeking permission to further examine CWs.1 to 6 was allowed by the Trial Court.

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Heard learned counsel for the petitioner, learned

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HCGP respondent No.1 and perused the material on record.

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A perusal of the material on record will indicate that in the aforesaid proceedings pending against the petitioners for the offences punishable under Sections 341 and 323 IPC. The prosecution examined many witnesses including CWs.1 to 6 and they were cross-examined by the petitioner-accused. Subsequently, after the statement of petitioner-accused under

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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Section 313 Cr.P.C. was recorded by the Trial Court, the prosecution filed the instant application seeking permission to produce additional documents and recall CWs.1 to 6 for further evidence. The said application having opposed by the petitioneraccused, the Trial Court proceeded to pass the impugned order allowing the application, aggrieved by which the petitioner is before this Court by way of the present petition.

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A perusal of the material on record will indicate that the Trial Court has considered and appreciated the rival contentions and has recorded correct findings that the proposed further evidence sought to be adduced by the prosecution was relevant and material for the purpose of adjudication of issues in controversy between the parties. While coming to the said conclusion, the Trial court held as under:

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“This application is filed by the learned APP under Sec.242(2) of Cr.P.C. R/W 311 of Cr.P.C. seeking permission to issue witness summons to CW-1 to 6.

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2. The learned APP has filed the application and stated that it is the case of the prosecution is that on 30.12.2020 at Kunda village, when CW-1 and 2 were going to their wetland, accused person picked up quarrel with them regarding right of way, and wrongfully restrained them and

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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assaulted to CW-1 on face and chest and caused simple injuries.

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3. In the application it is stated that at the time of examination of PW-1 to 4 and 6 they have deposed the date of incident as 30.12.2021 and 31.12.2021. The said incident occurs on 30.12.2020 but in the evidence it has come as 30.12.2021. After that also prosecution has not clarified the said aspect. Hence it is necessary to recall the witnesses to ascertain with regard to year of alleged incident. If application is allowed no prejudice will be caused to accused on the other hand if application is not allowed much injustice will be caused to prosecution. Accordingly prosecution has filed application seeking to issue witness summons to PW-1 to 6 for further chief.

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4. Advocate for accused has filed objection and contended that the application is not maintainable either in law or on facts. The trial in the above case is over and posted for arguments. The learned APP instead of arguing the case has filed this application for re-trial by recalling all the prosecution witnesses. The alleged medico legal certificates was not sent along with the charge sheet by the I.O. and the copy of such document is not furnished to the accused as required under law, hence it cannot be produced now after the closure of the evidence in the case. The document sought to be produced and marked are irrelevant and not required for the just decision in the case. The Gonikoppa police have filed the charge sheet against the accused in the above case after completion of investigation and hence the APP cannot by way of further investigation

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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produce new documents in the above case. There are not any reasons urged for filing this belated application and hence the prosecution cannot file such illegal applications as of rights without any reasons for their lapses if any. Hence the prosecution cannot urge their own ignorance or fault as an excuse for a re-trial at this belated stage of the case causing serious prejudice to the fundamental rights of the accused to have speedy trial. Hence the application is only an abuse of the process of law without any merits. The prosecution cannot improve their case or fill up the lacuna in their case by doing re-trial by taking accused for granted contrary of law. Hence prays to dismiss the application.

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5. Heard and perused the materials available

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record.

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6. The following points arise for my consideration:

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i) Whether the application filed by APP U/Sec.242 R/w 311 of Cr.P.C. deserves to be allowed?

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ii) What order?

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7. My answer to the above points are as follows:

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Point No.1:- In the Affirmative

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Point No.2:- As per final order for the following:

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REASONS

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Point No.1:-

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8. Gonikoppa police have registered the case for the offence P/U/Sec.341, 323 of IPC. When the matter is

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NC: 2025:KHC:4894 CRL.P No. 3910 of 2024

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posted for arguments learned APP has filed this application with a prayer to recall to PW-1 to 6 for further chief. Advocate for accused opposed the application on the ground that prosecution is trying to fill up the lacuna and which is not permissible under the law.

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9. On perusal of record it is noticed that in the prosecution papers date of incident shown as 30.12.2020, in the document produced by the learned APP along with application also date of incident shown as 30.12.2020 but in the evidence of PW-1 to 6 date of incident deposed as 30.12.2021. It is left to the parties to depose evidence, whatever they know or whichever they acquainted. In this case except PW-5, all the witnesses have deposed that alleged incident occurs on 30.12.2021. Though prosecution witnesses have deposed the date of incedent as 30.12.2021 but prosecution has not treated those witnesses as hostile to the case and not chosen to cross examine. As stated above witnesses can depose, whatever they know but prosecution has to suggest the correct date of incident to the witnesses, thereafter witnesses can accept those suggestion or they can deny those suggestions. Whenever witnesses depose hostile to the prosecution case, then it is the duty of prosecution to treat as hostile and cross examine those witnesses.

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10. In this case the prosecution is seeking permission to recall this witnesses to examine further to ascertain the year of incident. The advocate for accused opposed to recall the witnesses and produced one authority reported in 2013 AIR SCW 3554 in Natasha Singh V/s. C.B.I.

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In that Hon’ble Apex Court held that an application U/Sec.311 of Cr.P.C. must not be allowed only to fill up a lacuna in the case of prosecution or the defense or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness. Perused the said authority and noticed that the facts and circumstances of both the cases are not one and the same. Hence the ratio held in above authority is not applicable to case on hand.

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11. As per prosecution the doctor has examined as PW-5. She has issued M.Sc certificate on 30.12.2020 and in that as per information of victim doctor has stated that assault by Mr.K.A.Poovaiah near Uthappa Konda with hands. In the evidence doctor has deposed with regard to other injuries but said document has not been marked. The said document is necessary to prove the case. Perused the record and notice that PW-5 has treated the CW-1. When such being a case, it is necessary to mark the M.L.C. document issued by the PW-5 to ascertain the nature of injuries and other aspects shown in the proposed document.

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12. It is relevant to note here that part A of chapter XIX of Cr.P.C. deals with trial of warrant case by magistrate on basis of police report. Sec. 242(2) empowers the magistrate to summon the witness with a direction to produce any document or other thing. Therefore the contentions of the accused that this court has not power to recall any witness doesn’t hold any merit. It is also necessary to note here that in the present case the prosecution has

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filed the application to recall witnesses who are already examined but to ascertain the date of year. In the decisions reported in 1999 SCC (Cri.) 1062, (Rajendra Prasad V/s Narcotic Cell, the Hon’ble Apex Court at Para-9 held as follows: “Lacuna in the prosecution case 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 trial of the case, but an oversight in the management of the prosecution cannot be 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”.

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13. In this case the prosecution is trying to clarify the doubt regarding incident. Here the prosecution is recalling the witnesses but the witnesses are the right persons to speak about the truth. Mere recalling the witnesses is not a any fault because they will depose, what they know. It is their choice to depose with regard to truth. The accused will also get an opportunity to cross examine those witnesses, after they re-examined. Learned APP has produced some authorities reported in (2017) 9 SCC 340, (2011) 8 SCC 136, (2006) 3 SCC 374. In all these cases Hon’ble High Courts and Apex Courts held that recall of witness is the discussion power of the court. While the party

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has sought permission to correct its bonafide error, court has to provide an opportunity to rectify the said error. Hence if the witnesses are recalled, no hardship will cause to accused person as contended in the application. The accused has every right to cross examine the elicit the truth from those witnesses. When there are contraries between prosecution documents and witnesses with regard to date of incident, it is the duty of prosecution to cross examine, its own witnesses on that particular point. Here by oversight prosecution has not asked any question with regard to date of incident to the witnesses, after they deposed wrong year. Hence it is necessary to grant an opportunity to the prosecution to rectify it mistakes. Hence this court is of the view that application filed by prosecution is deserves to be allowed. Hence proceed to hold Point No.1 In the Affirmative.

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Point No.2:

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14. In view of the above reasons to above Point, this court proceeds to pass the following:

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ORDER

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Application Under Section 242(2) R/W Sec. 311 of

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Cr.P.C. filed by the prosecution is allowed.

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Issue witness summons to PW-1 to 6.

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By: 22.04.2024.”

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As rightly held by the Trial Court, no prejudice would

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be caused to the petitioner if the application is allowed, in the facts and circumstances obtaining in the instant case, in as much as the

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petitioner would be entitled to cross-examine the witnesses, who are sought to be recalled on behalf of the prosecution. Under these circumstances, I do not find any illegality or infirmity in the impugned order nor can the same be said to have occasioned failure of justice warranting interference of this Court in exercise of its jurisdiction under Section 482 Cr.P.C. or under Articles 226 and 227 of the Constitution of India.

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Accordingly, the petition is disposed of without interfering with the impugned order. However, the question as to admissibility, proof, relevance, probative value etc., of the further evidence to be adduced by the prosecution is hereby kept open to be decided by the Trial Court and no opinion is expressed on the same. In addition thereto, liberty is reserved in favour of the respondents to adduce oral and documentary evidence in support of their claim, apart from cross-examining the witnesses to be examined by the prosecution.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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BMC

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List No.: 1 Sl No.: 63

Kademada a Poovaiah v. the State of Karnataka

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Kademada a Poovaiah v. the State of Karnataka

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