Interim Order 24

Order Details: COPY OF ORDER
Pdf Text: CC NI ACT 6166-20, 10389-20, 1144-21, 3734-21, 4292-21, 6929-
21, 1734-22,
O P KHANDELWAL Vs. RAVI GUPTA
27.01.2025
Present: Sh. Vipul Sharma, Counsel for the complainant.
Sh. Rakesh Upadhyay, Proxy counsel for accused
(through VC).
ORDER
Vide this order, this court shall decide the application for
recalling of complainant witness (hereinafter referred as
‘Respondent’) moved by the accused (hereinafter referred as
‘Applicant’).
BRIEF FACTS-
2. Briefly stated, the Applicant has moved an application for
recalling of complainant witness on the ground that the Applicant had
put questions to the witness regarding the invoices issued by the cutter
and the respondent was directed to bring the said invoices on the next
date, however, he failed to furnish the same with the exception of
three of such invoices. In view of the same, he has averred that it is
just and necessary for the interest of justice that the respondent shall
be recalled.
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 1 of 6 --
..2..
ARGUMENTS-
3. Applicant has reiterated the contents of his application and has
prayed for allowing the instant application.
4. Per contra, the respondent has contended that the instant
application is liable to be dismissed as the Applicant is trying to fill
the lacunas in the present matter which cannot be allowed in the
scheme of law. Moreover, all the invoices as stated by the Applicant
are in the possession of the cutter and as such cannot be produced by
him.
5. Heard. Record perused.
REASONS-
6. Before adverting to the facts of the present case, it will be
worthwhile to reproduce section 311 Cr.P.C / 348 BNSS below for
ready reference-
“Power to summon material witness, or examine person present.
- Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code / Sanhita, summon any person in
attendance, though not summoned as a witness, or recall and re-
examine any person already examined; and the Court shall summon
and examine or recall and re-examine any such person if his
evidence appears to it to be essential to the just decision of the
case.”
7. It is apparent from the bare reading of the above provision that
any application under the said provision of law can only be allowed if
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 2 of 6 --
..3..
‘it appears to be essential to the just decision of the case.’
8. As per the settled law laid down by the Hon’ble Apex Court in
the case titled as
Natasha Singh v. CBI (2013) 5 SCC 741, it was held
that:-
"8. Section 311 Cr.P.C. empowers the court to summon a
material witness, or to examine a person present at "any
stage" of "any enquiry", or "trial", or "any other
proceedings" under Cr.P.C., or to summon any person as a
witness, or to recall and re-examine any person who has
already been examined if his evidence appears to it, to be
essential to the arrival of a just decision of the case.
Undoubtedly, Cr.P.C has conferred a very wide
discretionary power upon the court in this respect, but such
a discretion is to be exercised judiciously and not
arbitrarily. The power of the court in this context is very
wide, and in exercise of the same, it may summon any
person as a witness at any stage of the trial, or other
proceedings. The court is competent to exercise such
power even suo motu if no such application has been filed
by either of the parties. However, the court must satisfy
itself, that it was in fact essential to examine such a
witness, or to recall him for further examination in order to
arrive at a just decision of the case.”
9. Thus, it is crystal clear that the main test laid down
under section 311 is that it should be just and essential to the
decision of the case.
It was further held in the case of Manju Devi vs The State Of
Rajasthan, AIR 2019 SUPREME COURT 1976 that-
“
The scope and object of the provision is to enable the court
to determine the truth and to render a just decision after
discovering all relevant facts and obtaining proper proof of
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 3 of 6 --
..4..
such facts, to arrive at a just decision of the case. Power must
be exercised judiciously and not capriciously or arbitrarily, as
any improper or capricious exercise of such power may lead
to undesirable results. An application under Section 311 CrPC
must not be allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the disadvantage of the
accused, or to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be received as a
disguise for retrial, or to change the nature of the case against
either of the parties. Such a power must be exercised,
provided that the evidence that is likely to be tendered by a
witness, is germane to the issue involved. An opportunity of
rebuttal however, must be given to the other party. The power
conferred under Section 311 CrPC must therefore, be invoked
by the court only in order to meet the ends of justice, for
strong and valid reasons, and the same must be exercised with
great caution and circumspection. The very use of words such
as "any Court", "at any stage”, or "or any enquiry, trial or
other proceedings", "any person" and "any such person"
clearly spells out that the provisions of this section have been
expressed in the widest possible terms, and do not limit the
discretion of the Court in any way. There is thus no escape if
the fresh evidence to be obtained is essential to the just
decision of the case. The determinative factor should therefore
be, whether the summoning/recalling of the said witness is in
fact, essential to the just decision of the case.”
10. Hence, it is manifest clear that the parties cannot be allowed to
fill lacunas in their case by resorting to the relief under section 311
Cr.P.C / 348 BNSS. Insofar as the facts of the present case are
concerned, the Applicant wants to recall the complainant witness as he
failed to produce invoices issued by the cutter. In a private complaint
case, it is the prerogative of the complainant with regard to the
documents which he wants to produce before the Court to prove the
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 4 of 6 --
..5..
case in his favour. It is a settled position of law that as far as
production of documents in favour of the accused is concerned, his
stage to do so shall not ordinarily come till the stage of defence. This
is more so as the documents are stated not to be within the possession
of the complainant. The Accused / Applicant shall have ample
opportunity for the above at the appropriate stage of the case. No
doubt, the Court has power to allow the examination of any witness at
any stage if it is essential for just decision of case, however, this
judicial discretion is not be exercised mechanically. The burden of
proof in this regard lies upon the Applicant to make out a case for the
same. However, in the present matter, the Applicant has failed on this
count.
11. In view of the above discussion of law, this court finds no
ground for allowing the present application and the same is hereby
dismissed as being without any merit.
12. Nothing expressed herein above amounts to comment upon the
merits of the case.
At request, issue fresh summons including dasti summons to
CW-2 Concerned officer from GST office, J6 FW + 4WF, Mahatma
Gandhi Road, I.P. Estate, Delhi alongwith details of inputs taken by
Shubh Steel (07ADUPG3816B1ZP) with Khandelwal Iron Store on
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 5 of 6 --
..6..
filing of PF within 10 days from today.
Diet money be paid on the spot by the complainant to
CW-2.
Application is disposed of accordingly.
Put up for examination of CW-2 on 18.03.2025.
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.01.2025
-- 6 of 6 --