CIVIL APPEAL 101426 of 2025 on 31 December 2024

ORAL ORDER

This petition is filed under Section 528 of BNSS praying to quash the impugned order dated 31.12.2024 passed in S.C.No.42/2023 by the Additional District and Sessions Judge, Gadag wherein application filed by the petitioner –accused under Section 311 of Cr.P.C seeking recall of P.W.1 for cross examination came to be rejected.

2. Heard learned counsel for the petitioner and learned AGA for respondent No.1 –State. Inspite of service of notice, respondent No.2 remained absent and unrepresented.

3. The petitioner –accused is facing trial for offences punishable under Sections 363 and 376 of Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012

in S.C.No.42/2023 pending on the file of the Additional District and Sessions Judge, Gadag. The victim girl has been examined as P.W.1 on 31.10.2023 and cross examination has been deferred at request of learned counsel for accused. On 21.11.2023, counsel for the petitioner –accused again sought time for cross examination, it was rejected and cross examination of P.W.1 was taken as nil. Thereafter, on the next date of hearing i.e. 12.12.2023 the petitioner –accused has filed application under Section 311 of Cr.P.C seeking recall of P.W.1 for cross examination and it came to be allowed subject to payment of witness batta of Rs.1,000/- and Court has sent witness summons to P.W.1. P.W.1 appeared on 09.12.2023. On that day the counsel for the petitioner –accused has not deposited witness batta and prayed time for cross examination of P.W.1. Learned Session/Special Judge has rejected the prayer and taken cross examination

NC: 2025:KHC-D:6372CRL.P No. 101426 of 2025

of P.W.1 as nil and put questions to P.W.1 and recorded her answers by exercising powers under Section 165 of Indian Evidence Act and Section 167 of Bhartiya Sakshya Adhiniyam 2023. Thereafter, the petitioner –accused filed application under Section 311 of Cr.P.C seeking recall of P.W.1 for cross examination. The Public Prosecutor has filed objections to the said application. The learned Sessions Judge/Special Judge has dismissed the said application by the impugned order dated 31.12.2024. The said order has been challenged in this present petition.

4. Learned counsel for the petitioner –accused wound contend that cross examination of P.W.1 is necessary and essential to put forth defence/case of the petitioner –accused. He further submits that questions put by the learned Sessions Judge/Special Judge by exercising powers under Section 165 of the

Indian Evidence Act does not amounts to cross examination of the victim girl by accused. Learned counsel for the petitioner seeks opportunity to cross examine P.W.1 by setting aside the impugned order and allowing application under Section 311 of Cr.P.C.

5. Learned AGA for respondent No.1 –State wound contend that inspite of giving opportunity, the counsel for the petitioner has not chosen to cross-examine PW-1 -victim girl and he has also not deposited witness batta of Rs.1,000/-. The said act of the petitioner -accused amounts to harassment of the victim girl. Considering the said aspect, the learned Sessions/Special Judge has rightly rejected the application filed by the petitioner -accused by the impugned order.

6. Having heard learned counsels, the Court has perused the impugned order and materials placed on record.

7. The victim girl has been examined as PW-1 and her cross examination has been taken as nil by order dated 21.11.2023. On application filed by the petitioner under Section 311 of Cr.P.C. P.W.1 was summoned for cross-examination subject to payment of witness batta of Rs.1,000/-. The petitioner -accused neither deposited the witness bhatta nor cross examined P.W.1 and the learned Sessions/Special Judge has taken the cross of P.W.1 as nil and recorded answers to the questions put by the Court under Section 165 of Indian Evidence Act. Thereafter, the petitioner has filed application under Section 311 of Cr.P.C. seeking recall of P.W.1 for cross examination and the same came to be rejected on the ground that the said application is filed for further examination of P.W.1 and on what aspect the counsel for the petitioner -accused intends to cross examine P.W.1 has not been stated and if cross examination is permitted, it amounts to filling up of lacuna. The recording of answers put by the Court under Section 165 of Indian Evidence Act, does not amount to cross examination of the witness by the accused person. The application filed by the petitioner -accused is under Section 311 of Cr.P.C seeking recall of P.W.1 for cross examination. The said application is not for recall, for further cross examination. Without considering the said aspect, the learned Sessions/Special Judge has erred in applying the decisions of Hon’ble Apex Court that application filed under Section 311 of Cr.P.C for further cross examination requires details of further cross examination. Considering the fact that the petitioner -accused has not done the cross examination of P.W.1, the said application filed by the petitioner -accused under Section 311 of Cr.P.C is filed only for recall of P.W.1 for cross examination, the petitioner -accused

NC: 2025:KHC-D:6372CRL.P No. 101426 of 2025

should be given an opportunity to cross examine P.W.1, since P.W.1 is victim girl. Since victim girl –P.W.1 is summoned twice, petitioner -accused shall pay witness batta. The petitioner has made out case for allowing the petition and setting aside the impugned order dated 31.12.2024 and allowing application filed under Section 311 of Cr.P.C.

8. In the result, the following

ORDER

i)The petition is allowed.

ii)The impugned order dated 31.12.2024 passed in S.C.No.42/2023 by the Additional District and Sessions Judge, Gadag is set aside.

iii)The application filed by the petitioner –accused under Section 311 of Cr.P.C seeking recall of P.W.1 for cross examination is allowed subject to deposit of witness batta of Rs.3,000/-P.W.1 for cross examination is allowed subject to deposit of witness batta of Rs.3,000/- (rupees three thousand only) by the petitioner –accused payable to P.W.1.

iv)The petitioner –accused is directed to deposit witness batta of Rs.3,000/-(rupees three thousand only). witness batta of Rs.3,000/-(rupees three thousand only).

v)After deposit of said witness batta of Rs.3,000/- (rupees three thousand only), learned Sessions Judge/Special Judge has to issue witness summons to P.W.1 for the purpose of cross examination by the petitioner –accused. Rs.3,000/- (rupees three thousand only), learned Sessions Judge/Special Judge has to issue witness summons to P.W.1 for the purpose of cross examination by the petitioner –accused.

Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE

DSP CT-ASC List No.: 1 Sl No.: 12