Ameer Khan vs Mohammed Sajjad Sait

H.N. Nagamohan Das, J.—Petitioner filed a private complaint in P.C.R. No. 10017/2005 against the respondents for the offences punishable under Secs. 323, 392, 506(B) of IPC. After framing the charges, the petitioner examined P.Ws. 1 to 6 in support of his case. When the matter was set down for arguments, the petitioner filed an application to recall P.Ws. 1 to 6 on the ground that the previous counsel has not put the important questions to these witnesses. Further, a memo was filed to issue witness summons to two persons by name Abdull Shariff and Chutu Sab. The trial court after hearing both the parties passed an order on 15-12-2012 rejecting the application and the memo filed by the petitioner. Aggrieved by the order of the trial court, the petitioner filed a revision petition in Cr.R.P. No. 420/12 on the file of the Fast Track Court-VII, Bangalore City and the same came to be dismissed vide order dated 12-4-2012. Therefore, the petitioner is before this Court.

Heard the arguments on both the side and perused the entire petition papers.

The proceedings are initiated by the petitioner against the respondents in the year 2005. After completion of evidence on the side of the petitioner, he filed a memo for issue of summons to two witnesses who are not cited in the list of witnesses. It is also not stated in the memo as to what is the relevancy of these two witnesses. In the circumstances, the trial court rejected the memo filed by the petitioner for issue of witness summons and the same is in accordance with law. I find no justifiable ground to interfere with the same.

It is brought on record that petitioner examined six witnesses as P.Ws. 1 to 6 in support of his case. Out of these, six witnesses P.Ws. 1, 3 and P.W. 6 are tendered for cross-examination and they are fully cross-examined. Despite granting sufficient opportunity, P.W. 2, P.W. 4 and P.W. 5 were not tendered for cross-examination and therefore their evidence was closed by the trial court. Thus, substantial portion of the evidence is not available on record to consider the controversy between the parties. Though there are certain lapses on the part of the petitioner in not tendering these witnesses for cross-examination, I am of the considered opinion that one more opportunity is to be provided, subject to certain terms. If these witnesses are tendered for cross-examination then the respondents will have an opportunity to cross-examine these witnesses and in the circumstances no prejudice will be caused to them. For the reasons stated above, the following order:

(i) The petition is partly allowed.

(ii) The impugned orders passed by both the courts below in so far as it relates to rejecting the memo for issue of witness summons is hereby confirmed.

(iii) The impugned order passed by the courts below in so far as rejecting the application of the petitioner to recall P.W. 1, P.W. 3 and P.W. 6 is hereby confirmed and the remaining portion is hereby set aside.

(iv) The application filed by the petitioner under Sec. 311 Cr.P.C. on 10-10-2012 is partly allowed by recalling P.W. 2, P.W. 4 and P.W. 5 for the limited purpose of tendering them for cross-examination. On the next date of hearing, the petitioner to keep present P.W. 2, P.W. 4 and P.W. 5 for cross-examination. On the very same day or any other day or days fixed by the trial court, the respondents to cross-examine the witnesses.

(v) Further a direction is issued to the trial court to expedite the matter i.e., within three months from the date of receipt of a copy of this order the entire case is to be disposed of.