Though the matter is listed for Admission, with consent of both Counsel is heard and taken up for final adjudication.
2. The fact is, the respondent/Police have charge sheeted the accused persons herein in respect of the offences under Sections 341, 307 of IPC and Sections 3, 25(1)(b)(a) and 30 of the Indian Arms Act.
3. The undisputed facts are: While the trial was in progress, on 20.5.2016 cross-examination was deferred. On 4.7.2016, PW-32 was present, but the accused remained absent and there was no representation. NBW was ordered to the accused and notice to their sureties. On 4.8.2016, on the application moved by accused, NBW ordered was recalled. An application under Section 311 of Cr.P.C. came to be filed by accused to recall PW-32. After giving opportunity to both parties, said application was rejected with cost of Rs.2,000/-.
4. What I Noticed from the certified copy of the order sheet is, while PW-32 was present before the Court on 4.7.2016, despite noticing the absence of accused Nos.1 and 2, his presence was dispensed presently that means to say, the cross-examination of PW-32 was not closed, it was still open. The order of the learned Sessions Judge indicates that the accused has cultivated the habit of remaining absent. Be that as it may. In the absence of any enabling provisions under the Code of Criminal Procedure, the learned Sessions Judge fell into error in rejecting the application with cost and the same is beyond his jurisdiction. As such, PW-32 was not discharged for not cross-examining PW-32. The Trial Court after recalling NBW was bound to procure PW-32 for cross-examination by issuing of process. The accused need not have filed any application to recall PW-32. Both the Bar and Bench has to share the responsibility of illegality that occurred during the conduct of the trial. The order dated 19.10.2016 passed on the application in Sessions Case No.60/2008 by the II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet, is set aside. The Sessions Court is directed to procure PW-32 for cross-examination. It is ordered that the expenses of the witnesses for the day including traveling expenses is fixed for Rs.1,000/-, which shall be borne by the accused persons. Accordingly, the revision petition stands disposed In view of disposal of the revision petition,
I.A.No.1/2016 does not survive for consideration, hence, it stands disposed of. Sd/- JUDGE KNM/-
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