TaxTMI 
TaxTMI 
2024 (4) TMI 368
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.... of the Cr. P.C. for recalling himself as a witness. Factual Matrix: 2. The above complaints were filed by the petitioner on 26.09.2015. 3. The respondents filed petitions under Section 482 of the Cr. P.C., one of them being Crl. M.C. No. 2496/2016, seeking quashing of the said complaints. 4. The petitioner herein, as a respondent in the above petition, filed his counter affidavit, and the respondents, as petitioners in those petitions, filed their rejoinders. 5. The said petitions were dismissed by this Court vide its judgment and Order dated 18.02.2019. 6. Notice under Section 251 of the Cr. P.C. was framed against the respondents vide Order dated 08.04.2019. The respondent pleaded not guilty and requested for a trial. 7. The petitioner, on 16.09.2019, filed an application under Section 311 of the Cr. P.C., seeking to place on record the pleadings and documents filed in the above mentioned petitions filed by the respondents. 8. The respondents filed their reply to the above application on 09.10.2019. 9. The said application filed under Section 311 of the Cr. P.C. was withdrawn by the petitioner on 23.10.2019. 10. The petitioner closed his evidence on 03.03.2020. 11. T....
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....Cr. P.C. needs to be read along with Section 165 of the Indian Evidence Act, 1872, and in fact, it is the duty of the court to seek production of documents in order to discover or to obtain proper proof of the relevant facts. In support, he places reliance on the judgment of the Supreme Court in Jamatraj Kewalji Govani v. State of Maharashtra, 1967 SCC OnLine SC 19. 17. Placing reliance on the judgment of the High Court of Bombay in Fatehsinh Mohansinh Chauhan v. Union Territory of Dadra and Nagar Haveli, 2003 SCC OnLine Bom 207; and of the Madhya Pradesh High Court in Boby @ Sanjeev Singh v. State of Madhya Pradesh and Anr., 2010 SCC OnLine MP 582, he submits that even if the first application filed by the petitioner under Section 311 of the Cr. P.C. was withdrawn or is even rejected on merits, it would not bar the filing of the second/subsequent application for the same relief. 18. He submits that the scope of Section 311 of the Cr. P.C. is wide and is to be exercised in the interest of justice; it could be both in favour of and against the accused. In support, he places reliance on the judgment of the Allahabad High Court in Inayat v. Rex 1949 SCC OnLine All 110. 19. He sub....
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....aint cases has been pending since the year 2015 and the petitioner wishes to re-open the whole trial. 22. Placing reliance on the judgments of the Supreme Court in Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461; and Natasha Singh v. CBI, (2013) 5 SCC 741; of the Bombay High Court in Nayna Rajan Guhagarkar v. The State of Maharashtra 2021 SCC OnLine Bom 1054; and of the High Court of Kerala in Karthik S Nair v. State of Kerala and Anr., 2023 SCC OnLine Ker 6847, he submits that such an application cannot be allowed at this stage. Analysis & Findings 23. I have considered the submissions made by the learned counsels for the parties. 24. Section 311 of the Cr. P.C. reads as under:- "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." 25. Section 311 of t....
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....is Court while explaining scope and ambit of Section 311 has held as under : "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously." 19. In Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court has considered the concept underlying under Section 311 as under : "27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a wit....
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....by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed."' 10. In Manju Devi v. State of Rajasthan, (2019) 6 SCC 203, this Court emphasized that a discretionary power like Section 311, CrPC is to enable the Court to keep the record straight and to clear any ambiguity regarding the evidence, whilst also ensuring no prejudice is caused to anyone. A note of caution was sounded in Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328 as under: '10. The first part of this section which is permissive gives purely discretionary authority to the c....
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.... record the pleadings of the parties in the Petition filed by the respondents before this Court. The said petition had culminated in the judgment and Order dated 18.02.2019 of this Court. It is thereafter, that the Notice under Section 251 of the Cr. P.C. was framed against the respondents, on 08.04.2019. On 16.09.2019, the petitioner, by way of an application filed under Section 311 of the Cr. P.C., sought to bring on record the documents that are now being sought to be brought on record by way of the application in question. The said application was withdrawn by the petitioner on 23.10.2019. The petitioner has not sought to explain the reason for withdrawing the said application, nor submitted any change in circumstances that would justify a new application with the same prayer to be filed afresh. 28. The judgment of the High Court of Bombay in Fatehsinh Mohansinh Chauhan (supra) cannot come to the aid of the petitioner, as in the said case, the earlier application under Section 311 of the Cr. P.C. seeking recall of PW2 therein, had been filed by the complainant therein. However, the same was withdrawn by the complainant. Within four days thereof, the prosecution filed an applic....
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....ng in possession of the said documents. There is also no explanation in the application in question with regard to the withdrawal of the earlier application seeking similar relief. 32. It is to be kept in mind that the accused also has a right to an expeditious conclusion of the trial, for mere pendency of a case accusing a person of a criminal offence can attach stigma and cause embarrassment. Reference in this regard can be made to the judgments of the Supreme Court in Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352 and Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291. The right of the accused cannot be defeated with the complainant choosing to appear as a witness and file documents at his own terms and only when it is convenient to him. 33. It is also to be kept in mind that the proceedings in a complaint case under Section 138 of the NI Act are ordinarily to be conducted as a summary trial. The object of the provision being expeditious disposal of such cases, allowing the application of the petitioner to place on record the said documents would amount to re-opening the trial and would derail the proceedings which have already been dragged on for....