The exercise of powers under Section 311 of the Criminal Procedure Code should ensure that the evidence necessary for a just decision is permitted to be adduced.

JUDGMENT

V.L.Achliya, J. - Rule. Rule made returnable forthwith. With the consent of the learned Advocates, the Petition is heard finally.

2. By this Petition filed under Article 227 of the Constitution of India, the petitioner has challenged the orders dated 18.12.2018 and 27.02.2019 passed by the learned Judicial Magistrate First Class, Court No.3, Gangakhed, District Parbhani in SCC No.76/2013. By the impugned orders, the trial Court has rejected the application to recall the witness for cross-examination by setting aside order to proceed further without cross examination of witness for complainant.

3. Heard learned counsel for the petitioner and respondent. Perused the impugned orders.

4. Learned counsel for the petitioner assailed the impugned orders with contention that learned Judge of the trial Court has erred in refusing to exercise the powers vested under Section 311 of the Code of Criminal Procedure to recall the witness. It is submitted that in order to prove the defence of the accused and for just decision of the case, it is necessary that the petitioner-accused be afforded opportunity to cross examine the witness. It is submitted that prejudice, if any, caused to the petitioner can be compensated in terms of money. If opportunity of cross examination is not afforded, the petitioner will have to suffer serious consequences.

5. On the other hand, learned counsel representing the respondent supported the impugned orders. It is submitted that the affidavit by way of examination-in-chief of the complainant was filed in the month of February, 2018. The case was reserved for cross examination w.e.f. 2nd May, 2018. In spite of repeated adjournments, the petitioner-accused failed to cross examine the witness. On 11.09.2018 the adjournment was granted subject to payment of Rs.500/- as Bhatta to witness. The petitioner has neither deposited bhatta nor cross examined the witness. In the circumstances, the Court has passed the impugned order to proceed without cross examination of the witness for complainant.

6. I have carefully considered the submissions advanced in the light of over all facts of the case and scope of exercise of powers under Section 311 of the Criminal Procedure Code. The fact is not in dispute that the petitioner was afforded sufficient opportunity to cross examine the witness for complainant. The fact is also not in dispute that the petitioner has failed to deposit the cost and cross examine the witness. In that view, the order passed by the learned Judge to reject the application seeking recall of witness cannot be termed as perverse and contrary to law. However, fact remains that in absence of cross examination of the witness, there is every likelihood that the accused may not be able to establish his defence. In anticipation of the contingency that may crop up during the course of trial to summon, recall or re-examine any witness to decide the case the legislatures in their wisdom introduced Section 311 in Code of Criminal Procedure to meet such contingency to recall, re-examine and summon any witness during the course of trial. The object underlined under Section 311 of the Criminal Procedure Code is that no failure of justice be occasioned on account of mistake of either party to bring proper evidence as well as to remove ambiguity, if any, caused during the course of recording of the statements of the witnesses.

7. The exercise of powers under Section 311 of the Criminal Procedure Code are discretionary in nature. The discretion is to be exercised in a judicious manner. While exercising such powers the Court must ensure that the evidence must be permitted to be adduced which will help the Court to reach to a just decision of the courts. The exercise of powers under said provision should be resorted by keeping in mind that the object of criminal trial is to find out the truth or to obtain proper proof of the facts which will help the Court to reach to a just and correct decision of the case.

8. In the