- 1 - NC: 2025:KHC-D:502 CRL.P No. 100060 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 100060 OF 2025 (482(Cr.PC)/528(BNSS)) BETWEEN: SAIDUSAB S/O. MABUSAB HARLAPUR AGE. 22 YEARS, OCC. COOLIE, R/AT. NEAR HALAKERI BAVI, NARGUND, TQ. NARGUND, AND DIST. GADAG-582 207. …PETITIONER (BY SRI. GOURI SHANKAR MOT, ADVOCATE) AND: 1. THE STATE OF KARNATAKA NARGUND POLICE STATION, GADAG, R/BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT. DHARWAD. 2. MANGALAVVA W/O. HANAMANTA OUTADE AGE. 49 YEARS, OCC. HOUSEWIFE, R/AT. HALABAVI KERI, NEAR SANGAM TALKIES, TQ. NARGUND AND DIST. GADAG-582 207. …RESPONDENTS (BY SRI. ASHOK T.KATTIMANI, AGA FOR R1) THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. (528 OF BNSS), SEEKING TO QUASH THE IMPUGNED ORDER DATED 06.12.2024 I.E. ANNEXURE-A PASSED ON APPLICATION AS FILED BY THE PETITIONER U/S 311 OF CR.P.C. PENDING BEFORE COURT OF ADDL.DISTRICT AND SESSIONS JUDGE, AT GADAG IN SC NO.83/2023 FOR THE OFFENCE PUNISHABLE U/S 363, 376(2) (i) (n) OF IPC, 1860 AND 4 AND 6 OF POCSO ACT, 2012, AND ALLOW THE SAME. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.16 05:30:51 +0530 - 2 - NC: 2025:KHC-D:502 CRL.P No. 100060 of 2025 ORAL ORDER 1. The petitioner, who is facing trial for offenses punishable under Sections 363 and 376(2)(i)(n) of the Indian Penal Code, 1860 (IPC), as well as Sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, has approached this Court challenging the trial court’s order. The trial court had dismissed the petitioner’s application under Section 311 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking to recall prosecution witnesses PW1, PW2, and PW5 for cross- examination. 2. The petitioner’s learned counsel argued that the trial court denied the opportunity for cross-examining key witnesses, which adversely affects the petitioner’s right to a fair trial. 3. The learned Additional Government Advocate (AGA) for the State argued that despite being granted sufficient opportunities, the accused chose not to cross-examine the prosecution witnesses. Consequently, the trial court, having no other option, rightly passed the impugned order dismissing the application to recall the witnesses. 4. A review of the trial court’s order sheet reveals that on 10.06.2024, questions under Section 165 of the Indian Evidence Act, 1872, were posed to PW1, PW2, and PW5 in the absence of the petitioner and his counsel. While the petitioner and his counsel were granted adequate opportunities to cross-examine these witnesses, they failed to do so without sufficient cause. - 3 - NC: 2025:KHC-D:502 CRL.P No. 100060 of 2025 5. The learned counsel for the petitioner relied on the decision of the Hon’ble Supreme Court in Nadeem vs. State of U.P. & Others. In that case, it was held that recording the evidence of a prosecution witness in the absence of the accused and their counsel constitutes a denial of the right to a fair trial. The Hon’ble Supreme Court observed that under such circumstances, the accused is entitled to recall prosecution witnesses to ensure their right to defend is not compromised. The principles laid down in Nadeem are directly applicable to the present case, as the evidence of PW1, PW2, and PW5 was recorded in the absence of the petitioner and his advocate. 6. While POCSO cases generally prioritize minimizing the survivor’s trauma by avoiding repeated appearances in court, the petitioner’s right to a fair trial under Article 21 of the Constitution of India must also be safeguarded. Denying the opportunity to cross- examine PW1, PW2, and PW5 would render their testimony unchallenged, potentially leading to a conviction based on untested evidence. Therefore, to uphold the principles of justice and fairness, the petitioner is allowed to cross-examine these witnesses. 7. In light of the above, the dismissal of the application under Section 311 Cr.P.C. by the trial court cannot be sustained. 8. Accordingly, the petition is allowed. The impugned order dated 6.12.2024 passed by the Addl. District and Sessions Judge, Gadag on an application filed under Section 311 of Cr.P.C. - 4 - NC: 2025:KHC-D:502 CRL.P No. 100060 of 2025 in SC No.83/2023 is hereby set-aside. The said application is allowed. 9. The petitioner/accused is permitted to cross-examine PW1, PW2, and PW5 on the date they are summoned. In the event the petitioner fails to cross-examine the said witnesses, the trial court shall proceed with the case in accordance with the law. This permission is subject to the petitioner paying a sum of ₹2,500/- to each of the witnesses, namely PW1, PW2, and PW5. Sd/- (HEMANT CHANDANGOUDAR) JUDGE JTR Ct:vh List No.: 1 Sl No.: 36