THE HON’BLE SMT. JUSTICE K. SUJANA CRIMINAL PETITION NO.3422 OF 2025

ORDER:

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) against the order dated 06.01.2025 in Crl.M.P.No.240 of 2024 in C.C.No.07 of 2007 on the file of I-Additional Special Judge for CBI Cases, Hyderabad. The petitioners herein are accused Nos.5, 6 and 7 in the said C.C.

2. The petitioners herein have filed a petition under Section 311 of Cr.P.C, for recalling Pws.7, 8, 11 to 15 and 17 to 22 and 27 for cross-examination, stating that the said witnesses are not cross-examined by these petitioners. If they are not cross- examined, it will cause great hardship to the petitioners. As such, prayed the trial Court to recall the said witnesses.

3. The trial Court dismissed the said petition on the ground that the case was filed in the year 2007 and trial is pending since 17 years, that as per the charge sheet, prosecution cited 84 witnesses and examined 44 witnesses and now the case is posted for examination of GEQD expert and the investigating officer. The petitioners have not given any reason for their non- examination of the above witnesses on the date fixed by the trial Court. The said witnesses were examined in the year 2014 to 2019. The said petition is filed at a belated stage and the same is nothing but re-opening of the case and summoning of prosecution witnesses. Aggrieved by the said order, this criminal petition is filed.

4. Heard Sri E.Uma Maehswara Rao, learned counsel appearing for Sri Enuganti Sudhanshu Rao, learned counsel for the petitioners and Sri Srinivas Kapadiya, learned Special Public Prosecutor for CBI appearing for the respondent.

5. Learned counsel for the petitioners would contend that though petitioners filed petition for cross-examining the above witnesses, he now restricted his petition only to recall Pws.22 and 27 and submitted that trial Court failed to appreciate that depriving the petitioners to cross-examine the witnesses will amount to adjudicating the case without subjecting the chief- examination of the witnesses to be tested in cross-examination. Though Pw.27 was absent for several adjournments, the trial Court has given dates, whereas on the date fixed, at 4.40 p.m, the cross-examination was not done due to inadvertent reasons.

If petition is not allowed, it will cause prejudice to the petitioners herein.

6. In support of his contention, learned counsel for the petitioners relied on the judgment In Manju Devi Vs State of Rajasthan and another, (2019) 6 Supreme Court Cases 203, wherein the Apex Court observed that when examination of a witness is necessary for the ends of justice, and that attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court may dispense with such attendance and may issue a commission for the examination of the witness. It is also observed that the evidence can be recorded by way of video conference in the town/city where the court is. Thus in cases where the attendance of a witness cannot be procured without an amount of delay, commission to record the evidence by way of video conferencing can be issued. As such, prayed this Court to set aside the order of trial Court by allowing this criminal petition to the extent of cross-examination of Pws.22 and 27.

7. Learned Special Public Prosecutor would submit that recalling of witnesses, is nothing but re-opening the prosecution evidence, as already 44 witnesses were examined, and the above witnesses were examined in the year 2014 to 2019. Pw.27 was examined on 01.10.2019 i.e., six years ago and petitioners filed the petition at a belated stage stating that his cross-examination is necessary, which is only to delay the proceedings in the trial Court. He also relied on the order of this Court in Crl.P.No.3112 of 2025 wherein it is observed that discretionary power vested under Section 31