The petitioner is before this Court calling in question the

order dated 02.11.2021 rejecting an application filed by the

petitioner under Section 311 of the Cr.P.C. in S.C.No.165/2018

passed by the Additional District and Sessions Judge (FTSC-1),

Tumakuru.

Heard the learned counsel Sri Chethan B, appearing

for the petitioner and Smt. K. P. Yashodha, learned HCGP

representing respondent No.1.

3.

A complaint comes to be registered against the

petitioner in Crime No.124/2017 for an offence punishable

under Section 363 of IPC initially, later, the offences punishable

under Sections 366(A), 344 and 376 of IPC and Section 6 of the

Protection of Children from Sexual Offences Act, 2012 and

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Section 9 of the Prohibition of Child Marriage Act, 2006 were

added.

4.

The issue in the case at hand is not concerning the

merit of the matter with regard to the offences so alleged.

During the trial, the petitioner files an application under Section

311

of

the

Cr.P.C.,

seeking

recalling

of

PWs. 4, 5 and 7. The application comes to be rejected by the

concerned Court on 02.11.2021 on the ground that the matter

is at the stage of argument and the application is filed only to

drag the proceedings further. It is this order that drove the

petitioner to this Court in the subject petition.

5.

The learned counsel appearing for the petitioner

would contend that the reason rendered by the concerned

Court is erroneous and the Court has now permitted an

application filed by prosecution themselves seeking recalling of

CW-19. If delay was the reason to reject the application filed

by the accused, the same could not have been permitted for

the prosecution and would contend that, if one opportunity is

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granted, he would cross-examine the witnesses and conclude

the proceedings.

6.

Learned

HCGP

would

however

refute

the

submissions to contend that the application is filed at a belated

stage, but would admit the application filed by the prosecution

at that very stage.

7.

I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

8.

The afore-narrated facts are not in dispute. The

application filed by the petitioner was to recall PWs.4, 5 and 7.

PWs.4, 5 and 7 are the relatives of the victim girl, who were

examined on 17.02.2021 and at that point in time, the cross-

examination was not concluded. For the inconclusive cross-

examination, the petitioner files an application under Section

311 of the Cr.P.C. to recall those witnesses, whom the

petitioner had not cross-examined completely. This comes to

be rejected by the Concerned Court by rendering the following

reasons:

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“9.

More importantly, the prosecution evidence

was closed on 06.04.2021 itself and matter was posted

for 313 statement and for compliance under section 437-

A of Cr.P.C. Subsequently the accused took three

adjournments

for

compliance.

On

01.07.2021,

the

statement of accused was also recorded. When the

matter was posted for argument and for compliance, on

12.07.2021, the learned counsel for the accused has

furnished surety and complied 437-A of Cr.P.C. On the

next date of hearing, i.e., on 26.07.2021 the learned SPP

was present and addressed her argument. The learned

counsel for accused was also present and partly argued

and

took

an

adjournment

for

further

argument,

Subsequently the learned counsel for the accused took

eight adjournments for one or the other reasons for

further argument. When this Court has refused to give

further adjournment, the accused has come up with this

application seeking to recall P.Ws.4, 5 and 7 for further

cross-examination. As submitted by the learned SPP, it

appears that in order to drag on the proceedings further,

the accused has filed this application.

10.

Moreover, what are the questions or points

which were left out at the time of cross-examination is

also whispered in this application. On the other hand, the

learned counsel for the accused took sufficient time a