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CRL.P No. 3648 of 2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF JULY, 2022

BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CRIMINAL PETITION NO. 3648 OF 2022

BETWEEN:

YASHWANTH KUMAR
S/O LATE MAHALINGA
AGED ABOUT 28 YEARS
R/AT BHOGAPURA VILLAGE,
CHAMARAJA NAGAR - 571115

…PETITIONER
(BY SRI. PRINCE ISAC, ADV. FOR
SRI. KRISHNAMOORTHY D.,ADVOCATE)

AND:

THE STATE BY CHAMARAJA NAGARA

TOWN POLICE STATION
CHAMARAJA NAGAR
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT
BENGALURU 560001

…RESPONDENT
Digitally signed by
PADMAVATHI B K (BY SMT. K.P.YASHODHA, HCGP)
Location: HIGH
COURT OF
KARNATAKA THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH
THE ORDER IMPUGNED DATED 04.03.2022 IN SPECIAL CASE
NO.134/2020 OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE
CHAMARAJA NAGAR INSOFAR AS THE REJECTION OF THE
APPLICATION FILED BY THE PETITIONER FOR RECALLING THE PW 1
AND 2 FOR THE PURPOSE OF CROSS EXAMINATION.

THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS

DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 3648 of 2022

ORDER

The petitioner is before this Court calling in question an

order dated 04.03.2022 passed in Spl.C.No.134/2020 by the

Principal District and Sessions Judge, Chamarajanagar,

whereby the learned Special Judge partly allows the application

filed by the petitioner under Section 311 of Cr.P.C., permitting

recalling of PWs.3 and 4, while rejecting recalling of

PWs.1 and 2.

2. Heard Sri. Prince Isac, learned counsel appearing

for the petitioner and Smt. K.P.Yashodha, learned HCGP for the

respondent.

3. Sans details, the facts in brief, are as follows:-

The petitioner is an accused facing proceedings that are

punishable under Section 354A of the IPC and Section 8 of the

Protection of Children from Sexual Offences Act, 2012. The

proceedings are pending before the learned Sessions Judge in

Spl.C.No.134/2020. The issue is not with regard to the merit

of the matter.
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CRL.P No. 3648 of 2022

4. The petitioner files an application on 26.10.2021

under Section 311 of Cr.P.C., seeking recalling of witnesses

PWs.1, 2, 3 and 4 on the ground that the day on which they

were examined by the prosecution, the counsel for the

petitioner was suffering ill-health and was not able to

cross-examine the witnesses immediately.

5. The learned Sessions Judge considering the

application, rejects the same on the ground that the witnesses

cannot be repeatedly called, insofar as it pertains to PWs.1 and

2 as PW.1 is the victim is 8 years old and PW.2 the brother of

the victim, is 10 years old. PWs.1 and 2 are therefore not

permitted to be recalled for cross-examination. PWs.3 and 4,

who are the parents of the victim are permitted to be

cross-examined by allowing the application for recalling under

Section 311 of Cr.P.C. The rejection of application insofar as

PWs.1 and 2 is what drives the petitioner to this Court.

6. The learned counsel appearing for the petitioner

submits that the cross-examination of PWs.1 and 2 were

declared to be 'nil', on the date that they were examined, on

the ground that the learned counsel for the petitioner therein
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CRL.P No. 3648 of 2022

was not in a position to cross-examine the witnesses

immediately and would submit that if one opportunity is

granted, he would cross-examine the witnesses in terms of law

and conclude it on the same day.

7. The learned HCGP though would refute the

submissions of the learned counsel appearing for the petitioner

for recalling but would admit PWs.1 and 2 have not been cross-

examined at all.

8. I have given my anxious consideration to the

contentions of respective learned counsel and have perused the

material on record.

9. The petitioner is facing proceedings under Section 8

of the POCSO Act read with Section 354A of IPC. The

witnesses PWs.1, 2, 3 and 4 were all examined on 19.04.2021,

on which date the learned counsel for the petitioner therein

could not cross-examine any of the witnesses owing to his

ill-health. Later, the matter was listed on several occasions but

the petitioner failed to file any application on those dates but

filed an application only on 26.10.2021 seeking recalling of

PWs.1 to 4.
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CRL.P No. 3648 of 2022

10. The reason rendered by the learned Sessions Judge

to reject the application, is that the victim and the brother of

the victim are both below 18 years of age and Section 33(5) of

the POCSO Act prohibits a repeated calling of the witnesses for

cross-examination, when once the accused has lost the

opportunity of such cross-examination. The reason rendered by

the learned Sessions Judge though in the first blush would

become acceptable, but the fact remains that it would be a

case where PWs.1 and 2 the victim girl or his brother have not

been permitted to be cross-examined at all by the petitioner.

Therefore, it cannot become a case of no cross-examination of

the prosecution witnesses.

11. The Apex Court in the case of V.N.PATIL v.

K.NIRANJAN KUMAR1 interpreting Section 311 of the Cr.P.C.

has held as follows:

“13. The scope of Section 311 CrPC which is

relevant for the present purpose is reproduced
hereunder:

“311. Power to summon material

witness, or examine person present.—Any
court may, at any stage of any inquiry, trial or

1
(2021)3 SCC 661
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CRL.P No. 3648 of 2022

other proceeding under this Code, summon any

person as a witness, or examine any person in
attendance, though not summoned as a witness,
or recall and re-examine any person already
examined; and the Court shall summon and
examine or recall and re-examine any such
person if his evidence appears to it to be essential
to the just decision of the case.”

14. The object underlying Section 311 CrPC

is that there may not be failure of justice on
account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity
in the statements of the witnesses examined from
either side. The determinative factor is whether it
is essential to the just decision of the case. The
significant expression that occurs is “at any stage
of any inquiry or trial or other proceeding under
this Code”. It is, however, to be borne in mind that
the discretionary power conferred under Section
311 CrPC has to be exercised judiciously, as it is
always said “wider the power, greater is the
necessity of caution while exercise of judicious
discretion”.

15. The principles related to the exercise of the

power under Section 311 CrPC have been well settled by
this Court in Vijay Kumar v. State of U.P. [Vijay Kumar
v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri)
371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17)

“17. Though Section 311 confers vast

discretion upon the court and is expressed in the
widest possible terms, the discretionary power
under the said section can be invoked only for the
ends of justice. Discretionary power should be
exercised consistently with the provisions of the
Code and the principles of criminal law. The
discretionary power conferred under Section 311
has to be exercised judicially for reasons stated
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CRL.P No. 3648 of 2022

by the court and not arbitrarily or capriciously.

Before directing the learned Special Judge to
examine Smt Ruchi Saxena as a court witness,
the High Court did not examine the reasons
assigned by the learned Special Judge as to why it
was not necessary to examine her as a court
witness and has given the impugned direction
without assigning any reason.”

16. This principle has been further reiterated in

Mannan Shaikh v. State of W.B. [Mannan Shaikh v.
State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri)
547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal
v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri)
729] and Swapan Kumar Chatterjee v. CBI [Swapan
Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4
SCC (Cri) 839] . The relevant paragraphs of Swapan
Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI,
(2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as
under: (Swapan Kumar Chatterjee case [Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC
(Cri) 839] , SCC p. 331, paras 10-11)

“10. The first part of this section which is

permissive gives purely discretionary authority to
the criminal court and enables it at any stage of
inquiry, trial or other proceedings under the Code
to act in one of the three ways, namely, (i) to
summon any person as a witness; or (ii) to
examine any person in attendance, though not
summoned as a witness; or (iii) to recall and re-
examine any person already examined. The
second part, which is mandatory, imposes an
obligation on the court (i) to summon and
examine, or (ii) to recall and re-examine any such
person if his evidence appears to be essential to
the just decision of the case.

11. It is well settled that the power

conferred under Section 311 should be
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CRL.P No. 3648 of 2022

invoked by the court only to meet the ends

of justice. The power is to be exercised only
for strong and valid reasons and it should be
exercised with great caution and
circumspection. The court has vide power
under this section to even recall witnesses
for re-examination or further examination,
necessary in the interest of justice, but the
same has to be exercised after taking into
consideration the facts and circumstances of
each case. The power under this provision
shall not be exercised if the court is of the
view that the application has been filed as
an abuse of the process of law.”

17. The aim of every court is to discover the

truth. Section 311 CrPC is one of many such
provisions which strengthen the arms of a court in
its effort to unearth the truth by procedure
sanctioned by law. At the same time, the
discretionary power vested under Section 311
CrPC has to be exercised judiciously for strong and
valid reasons and with caution and circumspection
to meet the ends of justice.”

(Emphasis supplied)

12. In the light of the admitted facts and the judgment

of the Apex Court, one opportunity to cross-examine the

witnesses PWs.1 and 2 is to be accorded to the petitioner.

13. Learned counsel for the petitioner at this juncture

would submit that the next date of hearing is on 19.07.2022.

Therefore, the learned counsel for the petitioner shall

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CRL.P No. 3648 of 2022

cross-examine witnesses PWs.1 and 2 on 19.07.2022 or on a

particular date fixed by the learned Sessions Judge. That date

shall be the only opportunity that the petitioner would get to

cross-examine witnesses PWs.1 and 2. Any further application

under Section 311 of Cr.P.C., shall not be entertained.

14. For the aforesaid reasons the following:

ORDER

i) The criminal petition is allowed.

ii) The order dated 04.03.2020 in

Spl.C.No.134/2020 on the file of the Principal
District and Sessions Judge, Chamarajanagar
stand quashed.

iii) The application filed by the petitioner insofar

as cross-examination of PWs.1 and 2, stands
allowed.

iv) The learned Sessions Judge is directed to fix a

date for cross-examination of PWs.1 and 2
and the petitioner shall cross-examine the
witnesses PWs.1 and 2 on that date and
conclude.
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CRL.P No. 3648 of 2022

v) The cross-examination of PWs.1 and 2 shall be

strictly in terms of the Act, by the questions
routed through the learned Sessions Judge
and the answers again routed through the
learned Sessions Judge.

vi) The cost of appearance of PW.1 and 2 shall be

borne by the petitioner.

In view of the disposal of the main petition,

I.A.No.1/2022 also stands disposed.

Sd/-
JUDGE

KG