SMT. SHOBHA V.M v. STATE BY RAJARAJESHWARI NAGAR POLICE

SMT. SHOBHA V.M., W/O LATE V.R.MANJUNATHA, AGED ABOUT 43 YEARS, R/AT NO.464, SAMRUDHI I FLOOR, 8TH MAIN ROAD, OPPOSITE SHAKTHI HILL RESORT, BEML 5TH PHASE, RAJARAJESHWARI NAGARA, BANGALORE – 560 098. Location: High Court of Karnataka (BY SRI. PRAKASHA K V., ADVOCATE) AND: STATE BY RAJARAJESHWARI NAGAR POLICE BANGALORE, REPRESENTED BY S.P.P, HIGH COURT COMPLEX, BANGALORE – 560 001. (BY SRI.RAJATH SUBRAMANYA, HCGP) …PETITIONER …RESPONDENT THIS CRL.P. IS FILED U/S 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 27.09.2024 PASSED BY THE COURT OF LXXI ADDITIONAL CITY CIVIL AND SESSIONS - 2 - NC: 2024:KHC:41215 CRL.P No. 10705 of 2024 JUDGE BENGALURU IN SC.NO.134/2022 CONSEQUENTLY PERMIT THE PETITIONER TO FURTHER CROSS EXAMINE THE PW4/CW7 AND PW5/CW4. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA ORAL ORDER Though the matter is listed for non-compliance of office objections, with the consent of both learned counsel, case is taken up for final disposal.

The petitioner has preferred this petition against the impugned order passed by the learned LXXI Additional City Civil and Sessions Judge, Bengaluru, dated 27.09.2024.

The accused have filed an application under Section 311 of Cr.PC, seeking an order to recall PWs.4 and 5 for further cross-examination on the ground that some vital questions were left out at the time of cross-examining these witnesses.

Learned Public Prosecutor has not filed any written objection. However, orally objected to this application. - 3 - NC: 2024:KHC:41215 CRL.P No. 10705 of 2024

On hearing the arguments of both sides, the learned Sessions Judge has passed the impugned order as under; "Accused absent. EP filed perused and allowed. On behalf of the accused an application was filed under section 311 of the code of criminal procedure seeking an order to recall PW.4 and PW 5 enabling her to further cross examine these witnesses. It is contended that some vital questions were left out at the time of cross examining the witnesses. The application was filed on 11.09.2024. heard the learned PP who has strongly objected to the application as the witnesses examined. were already cross The accused was given an opportunity to submit regarding the subject matter in respect of which she intends to cross examine the witnesses. The witnesses CW.7 and 4 were examined as PW.4 and 5 on 29.12.2023 and 22.02.2024 and were cross examined on the very same day. Now after a lapse of 7 months the accused has approached the court with this application unable to submit regarding the matter in respect of which she intends to further cross examine the witnesses. No sufficient grounds made out for recall of the witnesses. Hence the application stands dismissed. For Arguments by 8.10.2024."

Learned counsel for the petitioner has reiterated the grounds urged in the petition and prays for allowing the petition. - 4 - NC: 2024:KHC:41215 CRL.P No. 10705 of 2024

Learned HCGP Sri Rajath Subramanya would submit that after lapse of 7 months from the date of cross- examination of PWs.4 and 5, the accused have filed the application under Section 311 of Cr.PC and sought for dismissal of this petition.

Learned Sessions Judge has dismissed application filed under Section 311 of Cr.PC only on the ground that after lapse of 7 months, the accused have approached the Court with this application. Except this, the learned Sessions Judge has not assigned any proper reasons to reject the application.

In order to conduct fair trial as required under Article 21 of the Constitution of India, it is required to provide one more opportunity to the accused for further cross- examination of PWs.4 and 5 as sought for. Hence, I proceed to pass the following; ORDER i. Petition is allowed. - 5 - NC: 2024:KHC:41215 CRL.P No. 10705 of 2024 ii. The impugned order passed by the learned LXXI Additional City Civil and Sessions Judge, Bengaluru dated 27.09.2024 is set aside. Consequently, the application filed under Section 311 of Cr.PC is allowed. PWs.4 and 5 are ordered to be recalled for cross-examination by the accused. Thereafter, the trial Court shall proceed with the case in accordance with law. iii. Registry is directed to send copy of this order to the trial Court, forthwith. Sd/- (G BASAVARAJA) JUDGE PN List No.: 1 Sl No.: 19