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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 19^TH DAY OF FEBRUARY, 2019

BEFORE

THE HON’BLE MR. JUSTICE P.G.M.PATIL

CRIMINAL PETITION NO.200137/2019

BETWEEN:

Bhimashankar S/o Mallappa Natikar,

Age: 22 years, Occ: Coolie,

R/o Ingalagi Village, Tq. Chittapur,

Dist.Kalaburagi.

... Petitioner

(By Sri Ustad Saadath Hussain, Advocate)

AND:

The State Through Wadi P.S.

Tq. Chittapur, Dist. Kalaburagi

(Now Representing by learned

Addl. State Public Prosecutor

High Court of Karnataka at

Kalaburagi-585103)

... Respondent

(By Sri Maqbool Ahmed, HCGP)

This Criminal Petition is filed under Section 482 of

Cr.P.C, praying to set aside the order passed by the II Addl.

Dist. & Sessions Judge, Kalaburagi in Spl. Case (POCSO)

No.53/2017 order dated 19.01.2019, for the offences

punishable under sections 376, 506 of IPC and Sections 4,

5(L), 6, 8, 12 of POCSO Act, 2012 and allow the petition and

recall the PW-1 (CW-2) for cross examination, in the interest

of justice and equity.

This petition coming on for Admission this day, the

Court made the following:

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ORDER

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

seeking to set aside the order dated 19.01.2019 passed

on the application under Section 311 of Cr.PC for

recalling the PW1 on the file of II Addl. Dist. & Sessions

Judge, Kalaburagi in Spl. Case (POCSO) No.53/2017.

2.

The facts of the case leading to this petition

are as follows:

The complainant who is the mother of the victim

lodged the complaint alleging that the accused who is

resident of the same village and was very friendly with

her daughter aged about 17 years. Further she has

alleged on 04.08.2017, her daughter went to attend the

nature call and did not return. Thereafter, herself along

with another daughter went in search of the victim and

at about 09.00 PM the complainant and her another

daughter found the victim girl along with accused in a

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compromising

position

in

a

shed

belonging

to

Bheemashankar on seeing the complainant-accused

took his cloths and ran away from the spot. On

enquiry the victim girl revealed that the accused had

committed sexual assault on her. On the basis of the

said complaint, respondent-police registered the case

and after investigation filed charge sheet before the

Special Court. The victim was examined before the

trial Court on 09.01.2018 as PW1 and on that day the

counsel for the accused-petitioner herein sought time

for cross examination of the said witness. The request

was rejected on the ground that there are no sufficient

cause for granting adjournment. Thereafter, the

petitioner kept quite for about one year and after

examination of all other witnesses filed an application

under Section 311 of Cr.PC to recall the PW1 for cross

examination and the said application was filed on

01.01.2019. The prosecution opposed the said

application. The learned Judge of the Special Court

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after hearing both the parties rejected the application by

the order dated 19.01.2019 citing the provisions of

Section 35(1) and 33(5) of POCSO Act.

3.

The

petitioner

has

stated

that

on

09.01.2018, the Senior Counsel was admitted in the

hospital and hence he could not cross examine PW1.

Now all the material witnesses have been examined

except official witness. The counsel has cross examined

all other witnesses. For the adjudication of the case,

the cross examination of PW1 is very essential and

without her cross examination it will seriously prejudice

the defense of the accused. Therefore, the impugned

order is liable to be set aside and PW1 may be recalled

for cross examination.

4.

Heard the learned counsel for the petitioner

and the learned High Court Government Pleader.

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5.

The learned counsel for the petitioner

submits that the defense counsel has cross examined

all other witnesses and that the cross examination of

PW1 could not be done for the reason that the learned

counsel appearing for the accused-petitioner was unwell

and he was admitted in the hospital on that da