CRL.P.200181/2021

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 16^TH DAY OF FEBRUARY 2021

BEFORE

THE HON’BLE MR.JUSTICE S.VISHWAJITH SHETTY

CRL.P.No.200181/2021

BETWEEN:

1.

Dinesh, S/o Shivalingappa Singe,

Age: 30 years, Occ: Agriculture,

R/o village: Darga Shirur,

Tq. Aland, Dist. Kalaburagi (585 302).

2.

Chaya @ Kalpana,

D/o Shivalingappa Singe,

Age: 33 years, Occ: Nil,

R/o village: Darga Shirur,

Tq. Aland, Dist. Kalaburagi (585 302).

3.

Lata, W/o Gundachari Dhole,

Age: 32 years, Occ: Nil,

R/o Village Degaon,

Tq. Aland, Dist. Kalaburagi (585 302).

…PETITIONERS

(By Sri Nandakishore Boob, Adv.)

AND:

The State through Narona Police Station,

Now represented by the Addl. SPP,

HCKB at Kalaburagi.

…RESPONDENT

(By Sri Sharanabasappa M.Patil, HCGP)

R

CRL.P.200181/2021

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This Criminal Petition is filed under Section 482 Cr.PC

praying to set aside the order dated 06.01.2021 passed by the I

Addl. Sessions Judge, Kalaburagi, in S.C.No.239/2017.

This petition coming on for further arguments, this day, the

Court made the following:

ORDER

1.

Petitioners

who

are

accused

nos.1

to

3

in

S.C.No.239/2017 pending on the file of I Addl. Sessions

Judge, Kalaburagi, registered for the offences punishable

under Sections 302, 201 read with 34 IPC, have challenged

the order dated 06.01.2021 passed by the said Court

exercising its power under Section 311 Cr.PC, principally on

the ground that the learned Sessions Judge had no

jurisdiction to exercise the power under Section 311 Cr.PC

since the case was already posted for judgment.

2.

Brief facts of the case are, on the basis of the complaint

filed by one Shivaraj S.Malipatil, Narona Police, Alland Circle,

Kalaburagi, have registered a case in Crime No.102/2017

against unknown persons for the offences punishable under

Sections 302, 201 IPC and subsequently, charge sheet has

CRL.P.200181/2021

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been filed in the said case against the petitioners herein for

the offences punishable under Sections 302, 201 read with

34 IPC. After the charge sheet was filed, the accused are tried

for the alleged offences before the Court of I Addl. Sessions

Judge, Kalaburagi, in S.C.No.239/2017. After completion of

recording the evidence in the said case, the learned Sessions

Judge had heard the arguments on both sides and thereafter

posted the matter for judgment. At that stage, the impugned

order dated 06.01.2021 has been passed by the learned

Sessions Judge suo motu exercising his power under Section

311 Cr.PC.

3.

Learned Counsel for the petitioners submits that since

the case is already posted for judgment, the learned Sessions

Judge had no jurisdiction to exercise the power under

Section 311 Cr.PC. The said power can be exercised only at

the stage of trial. He submits that the learned Sessions Judge

having heard the arguments of both parties, thereafter

cannot invoke the power under Section 311 Cr.PC because

CRL.P.200181/2021

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that would amount to filling up the lacuna in the case of the

prosecution, and therefore, he prays to allow the petition.

4.

Learned Counsel for the petitioners has relied on the

judgment of the High Court of Kerala in the case of

K.SAJEENDRAN VS SECRETARY, THALAKULATHUR GRAM

PANCHAYAT - 2004 CRL.L.J. 555. In paragraphs 5, 6 & 8 of

the said judgment, it has been held as under:

"5. In this regard, it is worthwhile to quote

Section 311 Cr.PC.

"The 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 such person if his

evidence appears to it to be essential to the just

decision of the case."

(Emphasis supplied)

Therefore this power can be exercised only "at any

stage of any inquiry, trial or other proceedings".

CRL.P.200181/2021

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