The court has the power under Section 311 of Cr.P.C. to summon or examine any person if their evidence appears to be essential to the just decision of the case. This power should be exercised judiciously and not arbitrarily, and should be used to find out the truth and obtain proper proof for a just and correct decision. The exercise of this power should not result in causing serious prejudice to the accused and should be resorted to only with strong and valid reasons.

ORDER :

This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the order passed by the XXI ACMM, Bengaluru in C.C.No.13178/2022 by allowing the application under Section 311 of Cr.P.C. filed by the respondent.

2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent.

3. The case of the petitioner is that the petitioner is the accused who is facing trial before the Magistrate on the complaint filed by the respondent under Section 200 of Cr.P.C. for the offence punishable under Section 138 N.I. Act and after pleading not guilty, the respondent adduced the evidence as PW.1 and during the cross-examination of the learned counsel for the petitioner-accused, the complainant has given some admission in the cross-examination and at that time, the respondent-complainant filed an application under Section 311 of Cr.P.C. for recalling the himself for leading further examination-inchief which was allowed by the trial Court without considering the objection raised by the petitioner-accused. Being aggrieved by the said order, the petitioner-accused is before this Court.

4. The learned counsel for the petitioner has seriously contended that the learned Magistrate has committed error in allowing the said application without considering the objection raised by the petitioner and by way of leading further examination-in-chief, the complainant tried to overcome the admission made in the cross-examination. If the said application is allowed, a great prejudice would be caused to the petitioner-accused in the defence. Therefore, prayed for quashing the order and in support of his argument, he has relied upon the judgment of the Himachal Pradesh High Court in the case of Sunder Lal vs. Urmila Thakur.

5. Per contra, learned counsel for the respondent-complainant objected the petition and contended that before granting stay by this Court, the order passed by the trial Court has been acted upon. The complainant already further examined and marked some of the documents. Therefore, the petition becomes infructuous and cannot be considered. Learned counsel further contended that absolutely there is no prejudice would cause to the petitioner case as there is no admission made by the complainant in his cross-examination and there is nothing to overcome the admission made by him in the cross-examination. There was some typographical error in the notice issued by the counsel for the complainant and it was stated by him in the cross-examination that there was a question put to him by the accused counsel to produce the documents, therefore, he wanted to produced those documents. Such being the case, the question of contending, the order passed by the Magistrate is illegal, does not arise. The matter is posted for cross-examination of PW.1 where the learned counsel for the accused is not ready to cross-examine PW.1 and on the other hand, he has filed an application for adjournment under Section 309 of Cr.P.C and indirectly threatened the trial Court as not to proceed with the proceedings in view of the stay granted by this Court. Hence, prayed for dismissing the petition.

6. Having heard the arguments and on perusal of records, it is not in dispute that the petitioner is an accused facing the trial on the complaint filed by the respondent for the offence punishable under Section 138 of N.I. Act. It is also not in dispute that the respondent has already examined as PW.1 and during the cross-examination, the application under Section 311 of Cr.P.C. filed by the respondent for recalling himself as witness to lead further examination-in-chief which came to be allowed. It is pertinent to note, the impugned order passed by the learned Magistrate was on 09.11.2022 and this Court granted stay only on 07.12.2022, but, in the meanwhile, the learned Magistrate has already examined PW.1 and executed the order under Section 311 of Cr.P.C. Therefore, setting aside the order does not arise at this stage,