Pooja R Vs the State of Karnataka

OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 20.06.2024 IN S.C.NO.78/2023 PENDING BEFORE THE IV ADDITIONAL DISTRICT JUDGE AT MYSURU, ETC.

¶61

THESE PETITIONS, COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶62

5 - NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶63

HC-KAR

¶64

CORAM: HON'BLE MR. JUSTICE M.I.ARUN

¶65

ORAL ORDER

¶66

The petitioners and respondent No.2 are said to be neighbours. A quarrel between the petitioners and respondent No.2 turned violent and both petitioners and respondent No.2 are said to be injured in the said quarrel. It resulted in S.C.No.78/2023 on the file of the IV Additional District Judge, Mysuru being initiated against the petitioners and S.C.No.84/2021 on the file of the IV Additional District and Sessions Judge, Mysuru being initiated against respondent No.2 herein and others. Both cases are being tried together.

¶67

During the proceedings, the petitioners herein have filed an application under Section 311 of Cr.P.C. seeking to recall PW-1 and PW-2 for the purposes of cross-examination. The application dated 20.06.2024 reads as under:-

¶68

APPLICATION UNDER SECTION 311 OF Cr.P.C.

¶69

"It is submitted on behalf of the Accused No. 1 to 4 states as follows:

¶70

6 -

¶71

NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶72

HC-KAR

¶73

1. That the Complainant has filed the above case against the Accused persons for the offence punishable under Section 448, 323, 324, 326, 427, 504 R/w 34 of I.P.C. The above case is stand posted for 313 Statement.

¶74

2. The Accused persons submits that, on the previous dates of hearing, the Counsel for the Accused persons were unable to cross examine the CW2 / PW1, CW3 / PW2 as the Advocate appearing on behalf of the Accused persons was out of station, the Hon'ble Court was pleased to take the cross examination of CW2 /PW1, CW3 / PW2 as Nil. Hence, it is just and necessary to re-open the above case for the purpose of cross examination of CW2 / PW1, CW3 / PW2. Hence, this application.

¶75

3. If the application is not allowed the Accused persons will be put into great hardship, if allowed there is no hardship will be caused to the Complainant.

¶76

Wherefore, the Accused No. 1 to 4 humbly prays that this Hon'ble Court be pleased to re-open the above case for the purpose of cross examination of CW2 / PW1, CW3 / PW2, in the interest of justice."

¶77

7 - NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶78

HC-KAR

¶79

It is submitted that the evidence of PW-1 and PW-2 was

¶80

closed on 02.08.2023. The order sheet of the trial Court reveals that the case was posted on several dates after 02.08.2023 and almost on all occasions, the learned counsel for

¶81

the petitioners herein was present before the Court. The application filed by the petitioners under Section 311 of Cr.P.C., does not disclose any other reason as to why PW-1 and PW-2 have to be recalled for cross-examination, other than the ground that the learned counsel for the petitioners herein was absent as well as out of station, which is a blatant lie, because the order sheet of the trial Court records presence of the counsel for the accused (counsel for the petitioners herein) on almost all dates after 02.08.2023 prior to filing of the said application under Section 311 of Cr.P.C. For that reason, the trial Court on 20.06.2024 has passed the following order:-

¶82

"The learned PP present.

¶83

Counsel for accused present.

¶84

A-1 to 4 absent.

¶85

Counsel for accused filed EP and application U/Sec.311 of Cr.P.C. by looking into records it appears that PW-1 and 2 are examined оп 02.08.2023 now almost after one year Counsel for accused filed application recalling PW-1 and 2 for cross examination, it shows that accused persons are

¶86

8 -

¶87

NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶88

HC-KAR

¶89

purposely filing the application only to drag the matter with intention to harass the victim who is in custody in counter case, hence both the application filed today is rejected, bail granted to A-1 to 4 is cancelled.

¶90

Issue NBW to A-1 to 4 and FLW to surety by registering separate Crl.Misc case.

¶91

For 313 Cr.P.C. statement call on by 27.06.2024."

¶92

Aggrieved by the same, the present petitions are filed. Crl.P.No.6537/2024 is filed with the following prayers:-

¶93

"a) Call for the records in S.C.No.78/2023 on the file of Hon'ble IV Additional District Judge at Mysuru,

¶94

b) That the Hon'ble Court after perusing the said records and proceedings be pleased to set aside the bail cancellation and NBW order dated 20.06.2024 in S.C.No.78/2023 pending before the Hon'ble IV Additional District Judge at Mysuru.

¶95

c) For such further and other reliefs as this Hon'ble Court deem fit and proper in the facts and circumstances of the case in the interest of Justice."

¶96

Crl.P.No.6507/2024 is filed with the following prayers:-

¶97

"a) Call for the records in S.C.No.78/2023 from the file of Hon'ble IV Additional District Judge at Mysuru,

¶98

9 -

¶99

NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶100

HC-KAR

¶101

b) That this Hon'ble Court after perusing the said records and proceedings be pleased to set aside the order dated 20.06.2024 in S.C.No.78/2023 pending before the Hon'ble IV Additional District Judge at Mysuru.

¶102

c) Allow the application dated 21.12.2023 filed under Section 311 of CR.P.C by the petitioners

¶103

d) For such further and other reliefs as this Hon'ble Court deem fit and proper in the facts and circumstances of the case in the interest of Justice."

¶104

Learned counsel for the petitioners in the course of the arguments is unable to dispute the recordings in the order sheet showing the presence of the counsel for the accused in S.C.No.78/2023 when the matter was being heard. He is not in a position to disprove the averment made in the application under Section 311 of Cr.P.C that he was not in station when the case was being heard, because of which he was unable to cross-examine PW-1 and PW-2 is false.

¶105

Further, he admits that no other valid reason is assigned for recalling PW-1 and PW-2.

¶106

10 -

¶107

NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶108

HC-KAR

¶109

Under the circumstances, it has to be concluded that application under Section 311 of Cr.P.C. has been filed by the petitioners herein only with an intention to drag the proceedings and not with any genuine reason. Hence, I do not see any reason to interfere with the well reasoned order of the trial Court insofar as it relates to rejection of the application filed under Section 311 of Cr.P.C.

¶110

Further, it is noticed that after filing these criminal petitions adequate steps have not been taken by the petitioners to have respondent No.2 served. The petitioners / accused in S.C.No.78/2023 have been enlarged on bail. Accused in S.C.No.84/2021 is said to be in judicial custody and the trial has come to a concluding stage. As both S.C.No.78/2023 and S.C.No.84/2021 were tried together, the trial Court is unable to proceed with the pronouncement of the judgment in S.C.No.84/2021, as this Court has passed an interim order on 15.07.2024, in both the petitions. The interim order passed in Crl.P.No.6537/2024 on 15.07.2024 reads as under:-

¶111

"Learned HCGP is directed to accept notice for respondent No.1.

¶112

11 - NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶113

HC-KAR

¶114

Issue emergent notice to respondent No.2, returnable by 23.07.2024.

¶115

The petitioners are before this Court calling in question an order dated 20.06.2024 in S.C.No.78/2023 rejecting an application filed under Section 311 of Cr.P.C.

¶116

List this matter on 23.07.2024, in the fresh matters list.

¶117

Till such time, further proceedings in S.C.No.78/2023, qua the petitioners, shall remain stayed.

¶118

The interim order passed in Crl.P.No.6507/2024 on 15.07.2024 reads as under:-

¶119

"Learned HCGP is directed to accept notice for respondent No.1.

¶120

Issue emergent notice to respondent No.2, returnable by 23.07.2024.

¶121

The petitioners are before this Court calling in question an order dated 20.06.2024 in S.C.No.78/2023 rejecting an application filed under Section 311 of Cr.P.C.

¶122

List this matter on 23.07.2024, in the fresh matters

¶123

list.

¶124

Till such time, further proceedings in S.C.No.78/2023, qua the petitioners, shall remain stayed."

¶125

12 -

¶126

NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶127

HC-KAR

¶128

This has resulted in a request by the concerned Sessions Judge to permit him to proceed with the trial of S.C.No.84/2021, independently of S.C.No.78/2023.

¶129

The learned High Court Government Pleader submits that S.C.No.78/2023 (from which the present criminal petitions have arisen) is also posted for recording the statement under Section 313 of Cr.P.C. He further submits that as both the cases pertains to the same incident, it is advisable for both to be concluded together.

¶130

Insofar as it relates to cancellation of bail in the impugned order, it is noticed that the counsel for the petitioners on 20.06.2024 has filed an application for exempting the accused (the petitioners herein) from appearing personally on that day, which has been rejected and the bail granted to the petitioners herein has been cancelled. The said order in my opinion is too harsh under the said circumstances and the trial Court ought to have granted indulgence by allowing the said application.

¶131

13 - NC: 2025:KHC:40624 CRL.P No. 6537 of 2024 C/W CRL.P No. 6507 of 2024

¶132

HC-KAR

¶133

Though notice to respondent No.2 is not yet served, under the given peculiar facts and circumstances of the case as mentioned above and more so, when the application of the petitioners to cross-examine PW-1 and PW-2 is rejected by the trial Court and the same is upheld by this Court, notice to respondent No.2 is hereby dispensed with. Hence, the following:

¶134

ORDER

¶135

i. The impugned order dated 20.06.2024 passed in S.C.No.78/2023 by the IV Additional District Judge, Mysuru, insofar as it relates to rejecting the application filed by accused Nos.1 to 4 therein (petitioners herein) under Section 311 of Cr.P.C. for recalling PW-1 and PW-2 and to cross-examine them is hereby upheld.

¶136

ii. The impugned order insofar as it relates to cancellation of bail granted to the petitioners herein (A1 to A4) in S.C.No.78/2023 is hereby set aside.

¶137

iii. The trial Court is directed to dispose of S.C.No.78/2023 and S.C.No.84/2021 as expeditiously as possible and parties are directed to co-operate for quick disposal of both cases.

¶138

iv. The petitions are disposed of .

¶139