GOWTHAM POOJARY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard Sri S.K. Acharya, learned Advocate for the petitioners and Sri Vijayakumar Majage, learned HCGP for the respondent and perused the petition and the annexures. Petitioners are accused Nos. 2 to 4 in S.C. No. 43/2011, on the file of the Sessions Judge at Udupi. The petitioners and another person are facing trial for an offence punishable under Section 395 of IPC. The case is at the stage of trial. PW. 6 was examined-in-chief and was cross-examined by the learned Advocate for A1 on 24.11.2012. The case was adjourned for further evidence, if any, of the prosecution by 26.11.2012, on which date, A1, A2 and A4 were present and A3 was absent. On behalf of A3, an exemption application was filed and was allowed. PW. 6 was also present before the court and an application was filed by the learned Advocate appearing for accused Nos. 2 to 4, to recall PW. 6 for cross-examination. The application having been rejected, this criminal petition has been filed for relief i.e., to recall PW. 6 for cross-examination by A2 to A4.

(2.) The order sheet of the case dated 24.11.2012 shows that A2 to A3 were absent. Exemption application was filed and the same was allowed. PW. 6 -Amith Makkar was present before the Court and he was examined by the prosecutor and was cross-examined by Sri. Akhil Hegde, learned advocate for A1. The order sheet does not show as to, whether there was any prayer made by the learned Advocate, who appeared for A2 to A4, in the matter of cross-examination of PW. 6 and the order passed. The order sheet also does not show that PW. 6 as having been discharged on 24.11.2012. PW. 6 being present before the Court on 26.11.2012, when application was filed to recall him for cross-examination by accused Nos. 2 to 4, ought to have been allowed by imposing costs on accused Nos. 2 to 4, in view of the inconvenience caused by them to PW. 6 for appearing before the court again. The view taken by the trial court to reject the application filed by these petitioners, in my opinion, is not a rational view. To meet the ends of justice the petitioners/accused Nos. 2 to 4 have to be provided with an opportunity to cross-examine PW. 6. In the said view of the matter, this petition is allowed and the impugned order is set aside. The application filed by the petitioners under Section 311 of Cr.P.C. in the trial court stands allowed subject to the petitioners paying to PW. 6, on the next hearing date, cost of Rs. 1,000/- and also cross-examining PW. 6 without seeking any adjournment. The petitioners shall pay or deposit the cost on the next hearing date of the case before the trial court and if PW. 6 were to be present before the court on the same date to cross examine him on that day or on the day he is summoned and appears before the court.