Order 4

Order Details: Order Below EX 1
Pdf Text: MHMM180038952020 Summons Cases SS/5800851/2020
JAGJIT SINGH ARORA Vs. NIRAJ KAKAD
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.41
This is an application for recalling defence witness filed on behalf
of accused under section 311 of Code of Criminal Procedure.
2. It is contended on behalf of the accused that defence evidence
came to be closed rejecting an adjournment application filed by the
accused on last date. It is further submitted that entire case is revolving
upon testimony of DW-01. His evidence is essential for just decision of
the case. Hence, this application.
3. Advocate for complainant strongly objected the application
contending that provision under section 311 of Code of Criminal
Procedure can not apply for recalling of witness who is not examined.
The order of closing evidence of accused can not be recalled by the
same court.
4. For the purpose of submissions, he has relied upon Judgment of
Supreme Court in the case of
Bindeshwari Prasad Singh Vs. Kali Singh
and judgment of Bombay High Court in Criminal Application No.388 of
2023 in the case of
Raju Natthuji Badhe Vs. Shyam Ajay Mohta.
5. Heard advocate for accused S.R.Sharma and advocate Aman
Arora for the complainant at length.
6. It is evident from the record and proceeding that adjournment
application moved by advocate for accused on last date, was rejected
by this court considering the aspect of giving more than sufficient
opportunity. Thereby matter was posted today for advancing final
arguments, closing rights of the accused to lead evidence.
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7. Before going to the merits of application, it is pertinent to note
that accused has fundamental right guaranteed by the Constitution of
India to put up his defence subject to utilizing said rights within
statutory parameters. Secondly, in a criminal trial a fair chance of
opportunity of leading evidence needs to be given to both parties. In
the context and settled principles of law, let us see, whether application
to recall order of closing defence evidence invoking section 311 of Code
of Criminal Procedure is maintainable or not?
8. It is cardinal principle of law that fair chance of trial needs to be
given to the accused. The accused is facing trial under section 138 of
Negotiable Instrument Act, wherein the legal concept of theory of
reverse burden of proof plays an important role. Section 311 of Code
of Criminal Procedure deals with powers of the court to summon
material witnesses or examining person present subject to qualifying
rider of necessity of such evidence for just decision of the case at any
stage of trial.
9. If the legal aspect of theory of reverse burden of proof read in
consonance with section 311 of Code of Criminal Procedure is taken
into consideration, the submission made on behalf of complainant that
section 311 would not apply as accused was not examined, appears
baseless and unacceptable. It is not that the witness should be
examined first is the only necessary qualification for recalling the
witness or summoning the witness under section 311 of Code of
Criminal Procedure.
10. Advocate for complainant has given much emphasize on the
Judgments of Hon’ble Supreme Court and Hon’ble Bombay High Court
as stated above, in support of his submission that Magistrate can not
recall or review his own order whereby defence evidence came to be
closed. I have carefully gone through both Judgments. Hon’ble
Supreme Court in the case of
Bindeshwari Prasad Singh, has held in
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paragraph No. 4 of the Judgment that, “
We might mentioned that the
order dated November 23, 1968 was a judicial order by which the
Magistrate had given full reasons for dismissing the complaint. Even if
the Magistrate had any jurisdiction to recall this order, it could have
been done by another judicial order after giving reasons that he was
satisfied that a case was made out for recalling the order.”
11. The ratio laid down by the Judgment of Apex Court is whenever
there is no provision in the Act of Criminal Procedure, empowering the
Magistrate to review or recall the order passed by him, such order can
not be recalled or reviewed by the Magistrate himself unless necessity
of recalling said order is made out by satisfactory grounds to the Judge.
12. While passing said order, first of all, it is to be noted that the
complaint was dismissed under section 203 which had effect of
acquittal of the case. In that contest, the observation was made by the
Hon’ble Apex Court. By said order proceeding came to be closed finally.
In the case in hand, the trial is still going on. Yet final arguments of
parties are to be heard. Leading evidence in defence is right of accused
guaranteed by the Constitution of India. Therefore, the ratio laid down
in the Judgment by Hon’ble Apex Court can not be equated or applied
ipso facto to the case in hand being passed on different facts and law.
The observations made by Hon’ble Supreme Court stating that rather to
say passing separate order on his satisfaction to recall order suggest
using another remedy if available in the law. Therefore, in view of
section 311 of Code of Criminal Procedure, it can not be said that
Magistrate can not recall or review his own order whereby fundamental
right of accused came to be closed. With due respect to the ratio laid
down in the Judgments cited supra, in my opinion the same would not
applied to the case in hand for closing doors of giving evidence to the
accused at all.
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13. I have also carefully gone through the Judgment of Hon’ble
Bombay High Court in the case of
Raju Natthuji Badhe. In above case
the observations of Bombay High Court in paragraph No.12 are quite
clear. While passing said order Bombay High Court has indirectly
suggested to consider application under section 311 of Code of
Criminal Procedure in genuine cases.
14. No doubt, in the case in hand adjournment application moved on
behalf of accused placed at Exh.40 came to be rejected with findings of
delay tactics played by the accused. However, it is better late than
nothing. Today, accused has ready to depose in defence. Therefore,
considering the statutory provision coupled with fundamental rights of
the accused to contest the case, I deem fit to invoke powers conferred
upon this court under section 311 of Code of Criminal Procedure.
Further, the oral and documentary evidence on record pertaining to
cheques, Bill of Exchange coupled with defence of an illegal money
lending transaction compelled me to invoke the powers under section
311 of Code of Criminal Procedure, for just decision of the case.
Evidence of accused in defence appears necessary for fair trial. No
prejudice would be caused to complainant even if trial is delayed to
some extent. Statutory rights can not be taken away abruptly. So far as
delay and right of speedy trial under section 143(3) of Negotiable
Instrument Act, is concerned, complainant can be compensated for the
dilatory tactics by saddling cost. Hence, I pass following order.
ORDER
1. Application is allowed subject to cost of Rs.10,000/- to be
paid to the complainant.
2. Costs are condition precedent.
3. As advocate for complainant is not ready to conduct cross
examination of the accused today itself, the matter adjourned
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on next date as per his convenience.
4. Order dictated and pronounced in open court.
5. Order be uploaded on Court Web Portal.
Mumbai, (M. P. Saraf)
Dated : 20.01.2026. Judicial Magistrate(First Class),
58th Court, Bandra, Mumbai.
J.O.Code-MH01362
CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court, Bandra,
Mumbai.
Dictated in open court on : 20.01.2026.
Transcribed and Typed on : 20.01.2026.
Order printed and Signed on : 20.01.2026.
Order Uploaded on : 22.01.2026.
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