Rudresh Hiremath v. State of Karnataka

NC:(2024:KHC-D:18585( CRL.P(No.(103829(of(2024( ( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA((

DHARWAD(BENCH( ( TH?DATED(THIS(THE(24 (DAY(OF(DECEMBER,(2024( ( BEFORE( THE(HON'BLE(MR.(JUSTICE(C(M(JOSHI( ( CRIMINAL(PETITION(NO.103829(OF(2024((482(OF(

CR.P.C./528(OF(BNSS)( ( BETWEEN:(( ( RUDRESH,HIREMATH,,

AGE:,34,YEARS,,OCC:,ADVOCATE,, R/AT:,TEJASWI,NAGAR,MAIN,, DHARWAD,–,580,002., …PETITIONER, (BY,SRI,A.,A.,PATHAN,,ADVOCATE.),

, AND:( (

1., STATE,OF,KARNATAKA,, THROUGH,VIDYAGIRI,POLICE,STATION,, DHARWAD,,REPRESENTED,BY,STATE,, PUBLIC,PROSECUTOR,, HIGH,COURT,BUILDING,,

DHARWAD,–,560,001., ,

2., IMRAN,S/O.,ISMAIL,DUKANDAR,,Digitally AGE:,28,YEARS,,OCC:,LABOUR,,signedtiby NDMALLIKARJUN R/O:,TEJASWINAGAR,,2 ,CROSS,, RUDRAYYA DHARWAD,–,580,008., KALMATH …RESPONDENTS, (BY,SRI,RAMESH,CHIGARI,,ADDL.,GOVERNMENT,ADVOCATE,,FOR, R.1;), R2,–,SERVICE,OF,NOTICE,DISPENSED,WITH.), , , THIS,CRIMINAL,PETITION,IS,FILED,UNDER,SECTION,482,OF, CR.P.C., (528, OF, B.N.S.S.,, 2023),, PRAYING, TO, QUASH, THE, IMPUGNED, ORDER, DATED, 06.11.2024, IN, C.C.NO.660/2023, VIDE, ANNEXURE-A,ON,THE,FILE,OF,III,ADDL.,SENIOR,CIVIL,JUDGE,AND, CJM,, DHARWAD, AND, CONSEQUENTLY, ALLOW, THE, APPLICATION, FILED,BY,THE,PETITIONERS,UNDER,SECTION,311,OF,CR.P.C.,AND, ETC.,.,

THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Learned Additional Government Advocate takes notice for respondent No.1. Service of notice to respondent No.2 is dispensed with.

¶2Heard the learned counsel for the petitioner and learned Additional Government Advocate.

¶3The petitioner is before this Court seeking indulgence in respect of the order passed in C.C.No.660/2023 dated 06.11.2024, whereby an application filed by the petitioner under section 311 of Cr.P.C. for recalling PW.1 and PW.2 for cross-examination was rejected by the learned III Addl. Senior Civil Judge and CJM, Dharwad.

¶4Learned counsel for the petitioner submits that the mother of the petitioner was suffering from ill health and therefore, he could not instruct the counsel who was conducting the case, for cross examining PW.1 and PW.2.

Thereafter an application was filed by the petitioner to recall PW.1 and PW.2. But the said application came to be rejected by the impugned order. Now the matter is slated for recording statement of accused under section 313 of Cr.P.C. and therefore, PW.1 and PW.2 need to be cross examined in order to ascertain the truth in the case and as such the petition be allowed by setting aside the impugned order passed by the learned CJM.

¶5Per contra, learned Additional Government Advocate submits that the application was filed after more than 10 months for cross examining PW.1 and PW.2 and particularly after cross examining all other witnesses in the case. He submits that there is no sufficient cause for recalling PW.1 and PW.2 and therefore, the petition is liable to be dismissed.

¶6The allegations against the petitioner herein in C.C.No.660/2023 is that he had committed offence punishable under section 323, 324, 504, 506 of IPC and when the matter was slated for trial, PW.1 and PW.2 who were cited as CW.1 and CW.4 were not cross examined due

to want of instruction by the petitioner to the counsel. The conduct of the petitioner would show that even after the other witnesses were examined, such application under section 311 of Cr.P.C. was not filed, but only when the matter was slated for recording statement of accused under section 313 of Cr.P.C., such application was filed. There is absolutely no material on record to show as to why there is such delay of 10 months and why the petitioner waited till all the other witnesses were examined by the trial Court.

¶7However, the interest of justice and equity requires that in ascertaining the truth no stone should be left unturned. An opportunity to cross examine PW.1 and PW.2 would be an important piece of evidence and it would show the truth or otherwise of the incident. It is needless to say that if PW.1 and PW.2 make a U-turn in cross-examination, such cross-examination may be rejected by the trial Court in view of the several judgments of the Hon'ble Apex Court in this regard.

¶8Keeping in view the provisions of section 309 of Cr.P.C. to recall of PW.1 and PW.2 has to be with costs

commensurate with the conduct of the petitioner. Hence, for the above reasons, the petition deserves to be allowed and the following order is passed. ORDER

i) The petition is allowed.

ii) The impugned order dated 06.11.2024 passed in C.C.No.660/2023 by the learned III Addl. Senior Civil Judge and CJM, Dharwad, is set aside.

iii) PW.1 and PW.2 are ordered to be recalled for cross-examination, subject to the following conditions: a) The petitioner shall pay a cost of Rs.5,000/- to each of the witnesses before cross examining them. b) PW.1 and PW.2 shall be cross examined on the day when they first appear before the trial Court and no adjournments shall be sought by the petitioner.

c) Any failure on the part of the petitioner to abide by the above conditions, would result in forfeiture of his right to cross-examination

iv) Intimate the trial Court with a direction to fix a date for cross-examination of PW.1 and PW.2, which shall not be beyond the period of 30 days from the date of receipt of a copy of this order.

Sd/- (C M JOSHI) JUDGE

MRK CT-ASC List No.: 1 Sl No.: 7