IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20^TH DAY OF DECEMBER, 2022

BEFORE

THE HON'BLE MR JUSTICE S RACHAIAH

CRIMINAL PETITION NO. 12159 OF 2022

BETWEEN:

QASIM @ MOHAMMED QASIM

S/O. P.H. POKAR BYARI,

AGED ABOUT 25 YEARS,

R/AT: KOPPALA GANESHA,

THOTA MANE, ARKULA VILLAGE,

PARANGIPETE,

MANGALURU TALUK-574 143.

&PETITIONER

(BY SRI. RAJASHEKAR S., ADVOCATE)

AND:

STATE OF KARNATAKA

BANTWAL RURAL POLICE STATION,

MANGALORE.

REPRESENTED BY

STATE PUBLIC PROSECUTOR,

HIGH COURT BUILDING,

BENGALURU-560 001.

&RESPONDENT

(BY SRI. H.S. SHANKAR, HCGP)

THIS CRL.P FILED U/S 482 CR.PC BY THE ADVOCATE FOR THE

PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE

PLEASED TO QUASH IMPUGNED ORDER DATED 09.12.2022 PASSED

IN SPL.C.C.NO.1/2022 ON THE FILE OF ADDL.DISTRICT AND

SESSIONS JUDGE, FTSC-II (POCSO) D.K., MANGALURU VIDE

DOCUMENT NO.1.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE

COURT MADE THE FOLLOWING:

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ORDER

The petitioner prays to quash the order dated 09.12.2022

passed in SPL.C.C.No.1/2022 on the file of the Additional

District and Sessions Judge, FTSC-II (POCSO) D.K., Mangaluru.

2.

The trial Court rejected the application filed by the

petitioner under Section 311 of the Cr.P.C., wherein, the

petitioner herein sought to recall PW-1 for further cross-

examination. The trial Court, while rejecting the order

observed the following:

"Here in the case, admittedly the previous counsel on

record for the first accused has cross-examined the

victim girl at length that too in the month of August,

2022. The learned counsel has not specified the area in

respect of which the intending questions are left out and

to be cross-examined the witness. But he has assigned

the blind and vague reason stating that some questions

are left left. This cannot be a strong and valid reason to

exercise the powers and recall the victim girl for further

cross-examination as rightly contended by the learned

Special Public Prosecutor. Under the circumstances, the

very application does not bear any merits rather it is

intended to subject the victim girl for embarrassment by

way of unnecessary cross-examination. In the absence

of valid reasons, the question of recalling the witness is

virtually amounts to abuse of the process of law.

Therefore, I am declined to allow the application as it is

devoid of merits. Accordingly, the application under

Sec.311 of Cr.P.C. filed on behalf of the 1st accused

stands rejected."

3.

The learned counsel for the petitioner submits that

the reason assigned by the trial Court would cause injustice to

the accused / petitioner to have his fair trial. Due to the

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changed circumstances, recalling of victim is essential and also

necessary to discredit the credibility of witnesses. The cross-

examination though availed, after examination of all the

witnesses, certain points are required to be asked to the victim.

Therefore, the trial Court could have allowed the application

and permit the petitioner herein to further cross-examine the

victim. Denying such opportunity led the petitioner to

approach this Court. If the order of the trial Court is not set

aside, great injustice would be caused to the accused.

4.

Per contra, learned HCGP vehemently opposed in

allowing the petition by setting aside the order of the trial

Court, in rejecting the application filed under section 311 of

Cr.P.C.

5.

It is further submitted that, the accused had availed

opportunity of cross-examination and he has cross-examined at

length, the alleged offences under the provisions of POCSO Act,

and protection of the victim is also one of the significant role

that Courts have to do.

6.

It is further submitted that, the trial Court after

appreciating the averments of the application, rejected the

application, and therefore, allowing the application may not be

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appropriate in this case. It is also necessary to b