Interim Order 1

Order Details: Order
Pdf Text: 1 C. C. No. 2419/SS/2018
ORDER BELOW EXHIBIT NO. 51
The present application has forwarded by the accused U/s. 311
of Cr.P.C. to recall the complainant for further cross-examination.
2. It is submitted by the accused that, the matter was posted for
final argument and judgment. The accused is filing the copies of complaint
filed with the concerned police station by the accused against the
complainant. The accused wants to conduct further cross-examination of the
complainant in respect of these police complaint. He submitted that, if the
application is not allowed then great prejudice would cause to him.
Therefore, prayed to allow the application.
3. The complainant has filed his say below Exh. 52 and submitted that
the present application is filed to delay the proceeding. He submitted that in
length the cross-examination of the complainant came to be conducted by
the accused. The sufficient opportunities have been granted to the accused
to file the documents and conduct the cross-examination but accused did not
file these documents at the time of cross-examination. The accused has
conducted somehow cross-examination of the point of filing of complaints by
him against the complainant. Therefore, lastly prayed to reject the
application.
4. Heard. Perused the application and say.
5. The present complaint is filed U/s. 138 of Negotiable Instruments Act.
Present application has been forwarded U/s. 311 of the Code of Criminal
Procedure. I have perused Section 311 of Cr.P.C. which reads as follows:
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311. 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, summon any person as a witness, or examine
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.
I have also perused the decision of Hon’ble Supreme Court of India in
Rajaram Prasad Yadav V/s. State of Bihar and Another, Criminal Appeal No.
830 of 2013 (@ SLP (Criminal) No. 2400 of 2011), decided on 04/07/2013.
In this case, the following principles are laid down :-
“23. From a conspectus consideration of the above decisions, while dealing with an
application under Section 311 Cr.P.C. read along with Section 138 of the Evidence
Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it?
Whether the evidence sought to be led in under Section 311 is noted by the
Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C.
should ensure that the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as thereby the ends of justice
would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just
decision of the case, it is the power of the Court to summon and examine or
recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only
with the object of finding out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court would result in causing serious
prejudice to the accused, resulting in miscarriage of justice.
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f) The wide discretionary power should be exercised judiciously and not
arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine
such a witness or to recall him for further examination in order to arrive at a
just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court
to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not
because it would be impossible to pronounce the judgment without it, but
because there would be a failure of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good sense should be the safe guard,
while exercising the discretion. The Court should bear in mind that no party in
a trial can be foreclosed from correcting errors and that if proper evidence was
not adduced or a relevant material was not brought on record due to any
inadvertence, the Court should be magnanimous in permitting such mistakes to
be rectified.
k) The Court should be conscious of the position that after all the trial is
basically for the prisoners and the Court should afford an opportunity to them
in the fairest manner possible. In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious exercise of such a discretionary
power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the
nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely
to be tendered, would be germane to the issue involved and also ensure that an
opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. 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 care, caution and circumspection. The Court
should bear in mind that fair trial entails the interest of the accused, the victim
and the society and, therefore, the grant of fair and proper opportunities to the
persons concerned, must be ensured being a constitutional goal, as well as a
human right.”
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I have perused the decision of Hon’ble Supreme Court of India in
Mohanlal Shamji Soni V/s. Union of India & Anr., AIR 1991 SC 1346. It has
held that,
“15. Besides the above specific provisions under the Cr. PC and CPC
empowering the criminal and civil courts as the case may be, to summon
and examine witnesses, a Judge in order to discover or to obtain proof of
relevant facts is empowered under Section 165 of the Indian Evidence Act
to exercise all the privileges and powers subject to the proviso to that
section which power he has under the Evidence Act. Section 540 of the
old Code (Section 311 of the new Code) and Section 165 of the Evidence
Act may be said to be complementary to each other and as observed by
this Court in Jamatraj Kewalji Govani v. State of Maharashtra, "these two
sections between them confer jurisdiction on the Judge to act in aid of
justice."”
6. I have perused the reasons cited in the application. By way of
present application, the accused wants to recall the complainant to conduct
further cross-examination. It is submitted by the accused that he wants to
conduct further cross-examination of the complainant on the point of
complaints filed with concerned police station against the present
complainant. The complainant has raised an objection on the ground that
the detail cross-examination was conducted by the accused. I have perused
the record and it seems that the cross-examination of the complainant was
conducted on 25/09/2024 and thereafter, matter was posted for final
argument. I have perused the cross-examination of the complainant wherein
also, the question in respect of these complaints have been asked by the
accused. The copies of complaints are of the year 2018 that means at the
time of filing of present complaint but till today the accused did not file the
copies of complaints filed with the police station. Therefore, the accused did
not mention the proper reason for non filing of these complaints on record
while conducting cross examination. If the copies were available with the
accused then it might have filed by the accused during the cross-
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examination. Now, the matter is posted for final argument and judgment
and therefore at this belated stage, it is not just to allow the application and
to allow the accused to conduct the further cross-examination. Hence, I pass
following order:-
ORDER
Application is rejected.
Date : 20/04/2026 Sd/-
(Y. P. Pujari)
Judicial Magistrate (First Class)
48th Court, Andheri, Mumbai.
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