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CRL.P No. 8049 of 2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2^ND DAY OF SEPTEMBER, 2022

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CRIMINAL PETITION NO. 8049 OF 2022

BETWEEN:

1.

SHOYAB KHAN

S/O HAMEED KHAN

AGED ABOUT 29 YEARS

R/AT NO.3/1,

GURAPPANAPALYA,

BENGLAURU 560067

&PETITIONER

(BY SRI. P MAHADEVASWAMY, ADVOCATE)

AND:

1.

STATE OF KARNATAKA

REP BY STATION HOUSE,

OFFICER, SUDDAGUNTE PALYA POLICE STATION,

BY STATE PUBLIC PROSECUTOR,

ATTACHED HIGH COURT BUILDING,

AMBEDKAR VEEDHI, BENGALURU 01

&RESPONDENT

(BY SMT.K.P. YASHODHA, HCGP)

THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET

ASIDE

THE

ORDER

DATED

02.08.2022

IN

Digitally signed by

PADMAVATHI B K

Location: HIGH

COURT OF

KARNATAKA

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CRL.P No. 8049 of 2022

SPL.C.C.NO.713/2018 AND TO ALLOW THE APPLICATION

DATED 02.08.2022 FILED BY THE PETITIONER U/S 311 OF

CRPC AT ANNEXURE-B ON THE FILE OF ACC AND SJ, FTSC-1.

BANGALORE.

THIS PETITION COMING ON ADMISSION THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

The petitioner is before this Court calling in question

an

order

dated

02.08.2022

passed

in

Spl.C.C.No.713/2018,

whereby

the

concerned

Court

rejects the application of the petitioner filed under Section

311 of the Cr.P.C. seeking recalling of witnesses PWs.5

and 6.

2.

Heard Sri. P. Mahadevaswamy, learned counsel

appearing for the petitioner and Smt. K.P. Yashodha,

learned HCGP appearing for the respondent.

3.

Brief facts that leads the petitioner to this Court

in the subject petition, are as follows:

A complaint is registered against the petitioner for

offences punishable under Sections 5(L) and 6 of

Protection of Children from Sexual Offences Act, 2012 (for

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CRL.P No. 8049 of 2022

short, "POCSO Act") and Section 363 of the IPC in Crime

No.189/2018. The merit of the matter is not the issue in

the case at hand. The petitioner files an application under

Section 311 of the Cr.P.C. seeking recalling of witnesses -

PWs.5 and 6 for cross-examination, as the cross-

examination of those witnesses had not taken place on the

appointed date, as the learned counsel for the petitioner

was down with COVID.

4.

Learned counsel appearing for the petitioner

submits that the Court could not have declined the

application, as it would become a case, where there is no

cross-examination of the witnesses-PWs.5 and 6. The

cross-examination of witnesses - PWs.5 and 6 are

imperative, as PW.5 is the Doctor and PW.6 is the

Investigating Officer. Therefore, would submit that the

application be allowed and one opportunity be granted to

the petitioner to cross-examine those witnesses on the

date that is fixed by the trial Court.

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CRL.P No. 8049 of 2022

5.

Learned HCGP would however seek to refute

the submissions to contend that the petitioner cannot keep

filing applications seeking recalling of the witnesses, as it

would delay the trial and would seek dismissal of the

petition.

6.

I have given my anxious consideration to the

respective submissions made by the learned counsel and

have perused the material on record.

7.

The afore-narrated facts are not in dispute.

PW.5 is the Doctor, who is the author of the FSL report a

material document in the case and PW.6 is the

Investigating Officer, who had investigated into the crime

and filed a charge sheet against the petitioner. PWs.5 and

6 were examined on 30.11.2021 and the petitioner could

not cross-examine on the said date on account of him

being down with COVID. On that ground, an application is

filed seeking recalling of the witnesses under Section 311

of the Cr.P.C. The Concerned Court rejects the same on

the ground that when the opportunity was granted on

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CRL.P No. 8049 of 2022

30.11.2021, the witnesses were not cross-examined and

therefore, no further opportunity can be granted. The

reasons rendered by the concerned Court reads as follows:

"