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2020 DIGILAW 659 (KAR)

Deva @ Devaraj v. State Of Karnataka

2020-03-06

K.NATARAJAN

body2020
JUDGMENT 1. The learned High Court Government Pleader takes notice for respondent No.1. 2. This petition is filed by the petitioner under Section 482 of Cr.P.C. assailing the order of rejection of the his application filed under Section 311 of Cr.P.C. by the II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.50/2019, dated 16.01.2020. 3. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader appearing for respondent No.1. 4. The case of the petitioner is that Kamalapur police filed charge sheet against the petitioner for the offences punishable under Sections 366A, 376(2)(N), 342 and 506 of Indian Penal Code, 1860 and under Sections 6 and 12 of Protection of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act). The accused/petitioner is said to be in judicial custody. The trial was begun. The prosecution has examined the witnesses. Subsequently, the petitioner has filed an application under Section 311 of Cr.P.C. seeking to recall PWs.1 and 2 for further cross-examination. The trial Court rejected the application on 05.10.2019. Assailing the same, the petitioner has approached this Court by filing a petition under Section 482 of Cr.P.C. in Crl.P.No.201325/2019. This Court vide its order dated 25.10.2019 has set aside the order of the trial Court and allowed the application of the petitioner filed under Section 311 of Cr.P.C. and permitted the petitioner to cross-examine PWs.1 and 2, only with regard to medical certificate marked as Ex.P16, by fixing the date as on or before 16.11.2019. Thereafter, the accused counsel said to be advanced the case before the trial Court on 14.11.2019. But, on the day of evidence when the witnesses are present, the counsel for the accused said to be retired from the case. Therefore, the trial Court has appointed a standing counsel and the said standing counsel has said to be cross-examined PW.1 and stated no cross-examination for PW.2. Thereafter, again the accused/petitioner has appointed a fresh counsel and again filed an application under Section 311 of Cr.P.C. to recall PWs.1 and 2 for further cross-examination, which came to be rejected by the trial Court on 16.01.2020. The same is challenged before this Court by the petitioner/accused by filing this petition under Section 482 of Cr.P.C. 5. Thereafter, again the accused/petitioner has appointed a fresh counsel and again filed an application under Section 311 of Cr.P.C. to recall PWs.1 and 2 for further cross-examination, which came to be rejected by the trial Court on 16.01.2020. The same is challenged before this Court by the petitioner/accused by filing this petition under Section 482 of Cr.P.C. 5. The learned counsel for the petitioner contended that this Court has given an opportunity to the petitioner to cross-examine PWs.1 and 2 and due to retirement of learned counsel for the accused/petitioner before the trial Court, the accused is not able to cross-examine the said witnesses. The trial Court has appointed a standing counsel without the knowledge of the petitioner/accused and the said standing has failed to cross-examine the said witnesses properly. Therefore, the accused changed the counsel and approached the trial Court for seeking liberty to further cross-examination of PWs.1 and 2. The same was rejected by the trial Court. If the application filed by the petitioner under Section 311 of Cr.P.C. is allowed, no prejudice would be caused to the prosecution case. Hence, he prayed for allowing the petition. 6. Per contra, learned High Court Government Pleader supports the order of the trial Court and submits that this Court has granted an opportunity to the petitioner and has not chosen to cross-examine the witnesses within the stipulated time. The change of counsel is not a ground to recall the witnesses for further cross-examination. Such being the case, question of giving one more opportunity to the petitioner for cross-examination of PWs.1 and 2 does not arise. Hence, he prayed for dismissal of the petition. 7. Upon hearing the arguments of learned counsel for the petitioner and learned High Court Government Pleader and perusing the records, admittedly Section 35 of the POCSO Act says that the evidence of the child shall be recorded within one month of the special Court taking cognizance of the offence and the trial shall be concluded within one year form the date of taking cognizance of the offence. However, this Court by considering all the aspects and the judgment of the Apex Court in the case of Mohanlal Shamji Soni v. Union of Nidia and Another reported in 1991 SCC (Cri.) 595 , has accorded a chance to the accused to cross-examine PWs.1 and 2. However, this Court by considering all the aspects and the judgment of the Apex Court in the case of Mohanlal Shamji Soni v. Union of Nidia and Another reported in 1991 SCC (Cri.) 595 , has accorded a chance to the accused to cross-examine PWs.1 and 2. The learned counsel appearing for the petitioner before the trial Court has retired from the case therefore, the trial Court has appointed a standing counsel. The said standing counsel has not chosen to cross-examine the witnesses properly. Therefore, the accused/petitioner has changed the counsel. Ofcourse, changing of advocate itself is not a ground for giving adjournment or further giving chance to cross-examine the witnesses. As per Section 311 of Cr.P.C., the trial Court by exercising its power shall summon and examine or recall and re-examine any witnesses who are already examined. It is well settled law, merely time bond for disposal of the case is mentioned in the provision of law, but, it does not mean that no opportunity shall be given to the accused to offer for fair trial. Such being the case, I deem it appropriate to give one more opportunity to the accused to cross-examine the witnesses i.e., PWs.1 and 2 and defend his case. However, granting one more opportunity would be on cost payable by the petitioner. Hence, I proceed to pass the following: ORDER The criminal petition is allowed. The impugned order passed by the trial Court is set aside by permitting the petitioner to cross-examine PWs.1 and 2, on Ex.P16, as ordered by this Court in Crl.P.No.201325/2019, dated 25.10.2019, at the cost of Rs.5,000/- payable to PWs.1 and 2 as expenditure. PWs.1 and 2 shall appear before the trial Court on 23.03.2020. On the said date, the counsel for the accused/petitioner shall further cross-examine the witnesses without seeking any adjournment. Registry is directed to send a copy of this order to the trial Court. The learned High Court Government Pleader is directed to file his memo of appearance for respondent No.1 within two weeks.