Prejudice should not be caused to the accused due to lapses on part of the counsel

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench comprising of K.N. Phaneendra, J. allowed the application filed by the petitioners under Section 311 of CrPC for recalling witnesses, the Investigating Officer and the Medical Officer, for cross-examination holding that in the instant case, if the fullest opportunity is not given to attack the testimonies of such witnesses, it would definitely prejudice the rights and interest of the petitioners-accused persons.

Earlier, learned Sessions Judge rejected the application filed by the petitioners under Section 311 of CrPC, seeking to further cross-examine two witnesses in the  criminal cases concerned. He rejected the said application on the grounds that the applicants have already availed the opportunity to cross examine the said witnesses and have brought no material to show that due to inadvertence, they were not able to cross examine the said witnesses completely. The petitioners assailed this order.

The High Court perused the application filed by the petitioners and found that it was categorically stated therein, that in their examination-in-chief, the concerned witnesses have stated about the dying declaration of the deceased. It was also noticed that the learned counsel for the accused, failed to cross-examine the said witnesses on the aspect of the dying declaration and other evidence adduced by the said witnesses.

The Court was of the opinion that due to some lapses on part of the counsel, prejudice should not be caused to the accused persons. It is the fundamental basic principal of criminal jurisprudence that fullest opportunity should be given to the parties by the first Court itself, so as to avoid any further complications and multiplicity of proceedings. While dealing with such applications, the Court should examine whether it deserves consideration or not. Merely because of delay in filing application or lack of proper explanation would not render such application infructuous.

The Court was of the view that in the circumstances of the case, if the said witnesses were not allowed to be reexamined with regard to the dying declaration, it would definitely prejudice the rights and interest of the accused persons. Accordingly, the petition was allowed, the impugned order was set aside and the trial court was directed to recall the witnesses concerned for further cross-examination. [Sunila v. State of Karnataka, Crl. Petition No. 6003 of 2017, order dated 16.11.2017]

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