Lazarus Alias Lazras S/O Abraham Lunjala v. The State of Karnataka

NC:(2024:KHC-D:18587( CRL.P(No.(103832(of(2024( ( (IN(THE(HIGH(COURT(OF(KARNATAKA,((

DHARWAD(BENCH( ( THDATED(THIS(THE(24 (DAY(OF(DECEMBER,(2024( ( BEFORE( THE(HON'BLE(MR.(JUSTICE(C(M(JOSHI( ( CRIMINAL(PETITION(NO.103832(OF(2024(

(482(Cr.PC)/528(BNSS))( ( ( BETWEEN:(( (

1., LAZARUS,@,LAZRAS,, S/O.,ABRAHAM,LUNJALA,, AGE,ABOUT,47,YEARS,, R/AT,9-2,,ST,COLONY,,, PORUMAMILLA,,

PORUMAMILLA,,CUDDAPAH,, ANDHRA,PRADESH,–,516,193., ,

2., SADIQ,@,SADIQ,KHAN,@,SANNASADHIQ,, S/O.,AHAMADKHAN,JALIJAMADAR,, AGED,ABOUT,35,YEARS,, R/AT,HALE,THAKUR,OFFICE,ONI,, DHARWAD,,KARNATAKA,–,580,001.,

,

3., SADIQ,@,DODDA,SADIQ,, S/O.,RAJESAB,DHARWAD,, Digitally AGED,ABOUT,38,YEARS,,signedtiby MALLIKARJUN R/AT,C/O,AHMED,KHAN,JALIJAMADAR,, RUDRAYYA KALMATH GANDHI,CHOWK,,, THNEAR,8 ,NO.,SCHOOL,,, DHARWAD,KARNATAKA,–,580,001., ,

4., LEDRIC,@,CEDRIC,JACOB,@,JACKOB,, S/O.,MUSALAIAH,MANNEKUNTA,, AGED,ABOUT,51,YEARS,, R/AT,PAPER,MILL,,, GOA,ROAD,, KELGERI,,DHARWAD, KARNATAKA,–,580,007., , …PETITIONERS, (BY,SRI,A.,A.,PATHAN,,ADVOCATE), NC:(2024:KHC-D:18587( CRL.P(No.(103832(of(2024( ( ( ( ( AND:( (

1., THE,STATE,OF,KARNATAKA,, (THROUGH,VIDYAGIRI,POLICE,, STATION,,DHARWAD), BY,H.C.G.P.,HIGH,COURT,BENCH,, DHARWAD,HIGH,COURT,BUILDING,, BENCH,,DHARWAD,–,580,001., ,

2., SUSHANT,, S/O.,RAJESHWARPRASAD,AGARWAL,, AGE:,ADULT,, R/O:,SHIDARAMESHWAR,COLONY,, H.NO.,49,,RANI,CHANNAMMA,NAGAR,,, DHARWAD,–,580,001., , …RESPONDENTS, , (BY,SRI,RAMESH,CHIGARI,,AGA,FOR,R1;, ,,NOTICE,TO,R2,IS,DISPENSED,WITH), , , , THIS, CRIMINAL, PETITION, IS, FILED, U/S, 482, OF, CR.P.C.,, (528,OF,BNSS),,PRAYING,TO,QUASH,THE,IMPUGNED,ORDER,DATED,

23.11.2024,IN,C.C.,NO.65/2017,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.,,AS,PRAYED,FOR,IN,THE,INTEREST,OF,JUSTICE,AND,ETC.,, , THIS,CRIMINAL,PETITION,COMING,ON,FOR,ORDERS,THIS,DAY,, THE,COURT,MADE,THE,FOLLOWING:,, , CORAM:, THE,HON'BLE,MR.,JUSTICE,C,M,JOSHI, (

ORAL ORDER

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

Heard the learned counsel appearing for the petitioners and learned AGA who has taken notice for the respondent No.1-State.

¶2Notice to respondent No.2 is dispensed with.

¶3Being aggrieved by the order dated 23.11.2024, whereby, the application filed under Section 311 of the Criminal Procedure Code, 1973 (for short, 'Cr.P.C.') to recall PW.8 for cross-examination was rejected, the petitioners are before this Court.

¶4Learned counsel for the petitioners would submit that the III Addl. Senior Civil Judge and CJM, Dharwad (hereinafter referred to as the 'trial Court', for short) rejected the application filed under Section 311 of the Cr.P.C., seeking recall of the PW.8 for cross-examination. It is submitted that the PW.8 appeared before the trial Court after several non-bailable warrants were issued against him and when the learned counsel for the

petitioners had sought the adjournment for cross-examination, the trial Court rejected the same and even the application filed under Section 311 of the Cr.P.C., came to be rejected. The petitioners have sufficient reasons and grounds to cross-examine the PW.8 which would show their innocence.

¶5Per contra, the learned AGA would submit that though the PW.8 was secured by the trial Court after much difficulty, the petitioners had failed to cross-examine him despite knowing that he is a public servant working elsewhere when the trial took place. It is submitted that recall of the public servant / Investigating Officer from other places would considerably affect the duties of the public servant and therefore, such application is to be shunned.

¶6A careful examination of the records would show that the petitioners are charged for the offences punishable under Sections 143, 147, 451, 427, 506 read with Section 149 of the IPC and when the matter was slated for

examination of the Investigating Officer, he could not be secured readily but after difficulty, the trial Court had secured him. Even after such securing, the IO was not cross-examined by the learned counsel for the accused / petitioners. There is no sufficient reason which has been shown for failing to cross-examine the PW.8. Absence of instructions to the counsel who conducted the case for the petitioners could not be accepted since the counsel for the petitioners had cross-examined PW.1 to PW.7 earlier. Therefore, this lame excuse is only to scuttle the speedy disposal of the case. Such attempt has to be shunned by the Court. However, there being a contention that there was an encroachment of the portion of the property, it appears that the cross-examination of the IO would also throw some light in respect of the contentions and the allegations made in the complaint and in the charge sheet.

¶7This Court also notices that there are some other connected matters. Therefore, in the interest of justice and equity, the PW.8 needs to be cross-examined

by the counsel for the defence. Hence, the petition deserves to be allowed, however, with stringent conditions. Hence, the following: ORDER

(i) The petition is allowed.

(ii) The PW.8 is recalled for cross-examination by the defence counsel and it shall be subject to the following conditions:

(a) The petitioners shall pay a cost of Rs.5,000/- to the PW.8 on the date when he would be present himself for cross-examination and defence counsel shall not seek adjournment for cross-examination.

(b) Any prayer for adjournment for cross-examination before the trial Court would forfeit his right to cross-examine PW.8.

Send the copy of this order to the trial Court, forthwith.

Sd/- (C M JOSHI) JUDGE

RH CT-ASC List No.: 1 Sl No.: 9