Shivamurthy @ Shivu vs State

Arali Nagaraj, J.—Though this matter is listed today for admission, having regard to the nature of the relief sought for in this petition, it is taken for final disposal by the consent of both the sides.

Heard the arguments of Sri. B.S. Hadimani, the learned Counsel for the petitioner-accused and Sri. Vijaykumar Majage, the learned High Court Government Pleader for the respondent.

Order dated 28.1.2010 passed in Sessions Case No. 157/08 by the learned Sessions Judge, Shimoga, rejecting the application of the petitioner-accused filed u/s 311 Cr.P.C. seeding recall of PWs. 1, 2, 5 & 9 for further cross-examination is sought to be set aside.

Sri. B.S. Hadimani, learned Counsel for the petitioner-accused submits that unfortunately the Counsel representing the accused before the Trial Court has not. stated in the application filed u/s 311 Cr.P.C the reasons for recalling the said witnesses and therefore, the Trial Court passed the Impugned Order rejecting the said application and hence an opportunity be given to the petitioner-accused for filing better application u/s 311 Cr.P.C stating therein the grounds and reasons for recalling the said witnesses.

On careful reading of the contents of the application filed u/s 311 Cr.P.C by the learned Counsel for the petitioner accused before the Trial Court, it could be seen that except stating that if further cross-examination of the said witnesses is not permitted, hardship would be caused to the accused, no other ground is urged in the said application. It could be seen further that no reasons are also stated in the said application as to why the said witnesses are sought to be recalled for further cross-examination. It is an admitted fact that the petitioner-accused has been in judicial custody. It appears that, proper instructions were not obtained from the petitioner-accused while drafting the said application.

Having regard to the above facts and circumstances of the case, I feel that, in the interest justice, the petitioner-accused be given an opportunity to file better application u/s 311 Cr.P.C seeking recall of the said witnesses. If such an application is filed, the same shall be considered and disposed of in accordance with law.

The present, petition stands disposed of in the above terms.