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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4^TH DAY OF MARCH, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL PETITION No.1789/2021

BETWEEN:

1 .

BALARAJ @ VISHNU

S/O LATE VIJAYA KIRAN

AGED ABOUT 21 YEARS,

R/T SHANTHAMMA'S HOUSE,

5^TH CROSS, NEAR BBMP OFFICE

DORESANIPALYA, J.P. NAGAR 5^TH PHASE

BENGALURU-560078

2 .

DIVYA BALARAJ @JALSA

S/O JOSEPH

AGED ABOUT 25 YEARS

R/AT NO.238, 7^TH CROSS

CHURCH ROAD, DORESANIPALYA

J.P. NAGAR 5^TH PHASE

BENGALURU-560078

… PETITIONERS

(BY SRI TEJAS N., ADVOCATE)

AND:

STATE OF KARNATAKA

BY PUTTENAHALLI POLICE

BENGALURU-560078

REPRESENTED BY LEARNED

STATE PUBLIC PROSECUTOR

HIGH COURT OF KARNATAKA

BENGALURU-01.

… RESPONDENT

(BY SMT. NAMITHA MAHESH B.G., HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO QUASH THE ORDER DATED 08.02.2021

(ANNEXURE-A)

PASSED

IN

S.C.NO.882/2018

WHICH

IS

PENDING ON THE FILE OF THE LXIV ADDITIONAL CITY CIVIL

AND SESSIONS JUDGE, BENGALURU (CCH-65) REJECTING THE

APPLICATION U/S 311 OF CR.PC TO RECALL WITNESSES AND

CONSEQUENTLY, ALLOW THE SAID APPLICATION PERMITTING

THE PETITIONERS TO CROSS-EXAMINE THE WITNESSES AS

SOUGHT FOR.

THIS CRIMINAL PETITION COMING ON FOR ADMISSION

THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the order dated 08.02.2021 passed in

S.C.No.882/2018 pending on the file of LXIV Additional City Civil

and

Sessions

Judge,

Bengaluru

(CCH.65),

rejecting

the

application under Section 311 of Cr.P.C. recalling the witnesses

and consequently, all the said application permitting the

petitioners to cross-examine the witnesses as sought for.

2.

The factual matrix of the case is that these two

petitioners, who have been arraigned as accused Nos.2 and 3

before the Trial Court are facing the trial for the offence

punishable under Sections 302, 201 read with Section 34 of IPC.

The petitioners had filed an application for recalling of the

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witnesses i.e., PWs.1 to 3, 5 and 11 and the same came to be

rejected on the ground that similar application was filed on

13.10.2020 and the same came to be rejected. Again they

approached the Court by filing the similar application for

recalling of the similar witnesses i.e., PWs.1 to 3, 5 and 11. The

Trial Court also while considering the application made an

observation that it is the specific contention made out by the

prosecution that in the event of allowing the application to

enable to recall the witnesses for further cross-examination,

there is every chance of win over the witnesses, elicit answers

fatal to proved facts of the case of the prosecution. It is also

noted in the order that learned Public Prosecutor appearing for

the State brought to the notice of this Court that similar

application was filed and rejected. The witnesses have already

been cross-examined at length by the Advocate for accused side.

It is the further submission of the prosecution that earlier

counsel who was on record adopted the cross-examination of

accused No.1 for these two petitioners also.

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3.

Learned counsel appearing for the petitioners would

vehemently contend that if an opportunity is not given to the

petitioners herein, it would cause prejudice to them. Hence, it

requires an opportunity has to be given to the petitioners to

cross-examine the witnesses.

4.

Per contra, learned High Court Government Pleader

appearing for the State would submit that similar application was

filed earlier recalling the witnesses i.e., PWs.1 to 3, 5 and 11 and

the same came to be rejected on 13.10.2020. Inspite of the

earlier order attained its finality, one more application is filed by

the petitioners herein. Learned counsel would submit that on

the earlier occasion also, by suppressing the true facts that the

earlier application was r