Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 239

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
PERIYASWAMY M. S/O MOTTABHOVI – Petitioner
Versus
STATE OF KARNATAKA – Respondent
Criminal Petition No. 6288 of 2022
Decided On : 20-07-2022

Advocates:
Advocate Appeared:
For the Petitioner: SATHISH C.
For the Respondent: K.P. YASHODHA.

Point of Law: It is well settled that power conferred under Section 311 should be invoked by court only to meet ends of justice. Power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection.

Headnote:
Criminal Procedure Code, 1973 - Section 482, 311 , 313 – Indian Penal Code, 1860 - Section 354 , 376 - Protection of Children from Sexual Offences Act 2012 - Sections 5(n), 6, 8 and 12 – Offence of Rape – Savings of inherent powers of High court - Power to summon material witness, or examine person present - Whether court is right in thinking that new evidence is needed by it - Whether evidence sought to be led in under Section 311 is noted by court for a just decision of a case - It is trite that fair trial includes affording of fair opportunity to person concerned albeit prosecution or accused as aim and object of every Court is to discover truth. Section 311 of Cr.P.C. is one of many such provision, which strengths arms of Court to unearth truth by procedure sanctioned by law (Para 9).

Finding of the Court: Court while interpreting Section 311 of Cr.P.C. facts in case at hand will have to be noticed. Petitioner is charged under Sections 5(n), 6, 8 and 12 of POCSO Act. Petitioner files an application seeking to adduce defence evidence after conclusion of his recording of statement under Section 313 of Cr.P.C. by seeking reopening of case from stage of adducing such defence evidence. This is rejected by concerned Court by a perfunctory order.
Result: Criminal Petition allowed

ORDER :

1. The petitioner is before this Court calling in question an order dated 10.06.2022 passed in Spl. C.C. No. 233/2020, whereby the Additional Civil and Sessions Judge FTSC-III, Bengaluru, has declined the plea of the petitioner to adduce the defence witnesses from the stage of defence evidence.

2. Heard Sri Sathish C. learned counsel for the petitioner and Smt. K.P. Yashodha, learned High Court Government Pleader for the respondent.

3. Brief facts leading to the filing of the petition as borne out from the pleadings are as follows:

A complaint comes to be registered against the petitioner which becomes a crime in Crime No. 48/2020 on 11.02.2020 for offences punishable under Sections 8 and 12 of the Protection of Children from Sexual Offences Act 2012 (for short ‘the POCSO Act’) and Section 354 of the IPC. The police after investigation have filed a charge sheet including the offence punishable under Section 376 of the IPC read with Sections 5(n), 6, 8 and 12 of the POCSO Act. The trial is set in motion and is in progress. On completion of the evidence of the prosecution by examination of PWs. 1 to 9 and cross-examination by the accused, on 24.05.2022, the statement of the accused under Section 313 of the Cr.P.C. is also recorded.

4. The issue in the case at hand is not with regard to the merit of the matter or examination of witnesses by the prosecution. The issue is with regard to the accused filing an application before the concerned Court seeking adducing of defence evidence as at the relevant point in time, when he was to render the defence evidence, he was in judicial custody and could not instruct the counsel to lead the defence evidence. It is in that light, an application is filed before the concerned Court. The concerned Court by its order dated 10.06.2022, declines to accede the request of the accused petitioner for leading of defence evidence, on the ground that the burden was on the prosecution to prove the guilt of the accused beyond all reasonable doubt and permit the accused to examine five witnesses, does not arise. Challenging this order of the Sessions Judge, the petitioner has knocked the doors of this Court in the subject petition.

5. Learned counsel for the petitioner would contend in vehemence that the petitioner has right to lead defence evidence as he is facing charges which can land him in imprisonment for more than three years. He was not able to instruct the counsel for leading defence evidence as he was in custody upto 21.06.2022. Being in custody, he files an application under Section 311 of the Cr.P.C. He would submit that the right to lead defence evidence cannot be taken out on the ground that the burden is on the prosecution.

6. On the other hand, learned High Court Government Pleader would seek to defend the order on the ground that the intention of the petitioner is only to drag the proceedings since the issue concerns the afore-quoted offences punishable under the POCSO Act. The trial has to be concluded without any loss of time and seeks dismissal of the petition.

7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent and perused the material on record.

8. The afore-narrated facts are not in dispute. Before embarking upon the merits of the case, I deem it appropriate to notice the law laid down by the Apex Court interpreting Section 311 Cr.P.C. Section 311 of the Cr.P.C. reads as follows:

“311. Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

(Emphasi