The power under Section 311 Cr.P.C. is discretionary and to be used sparingly to prevent miscarriage of justice.

1. The complainant of Complaint Case No. 2594(C) of 2002 has prayed for the quashing of the order dated 9.1.2007 passed therein by Sri S.K. Mishra, Judicial Magistrate, First Class, Patna, whereby he has rejected the petitioners petition filed under Section 311 Cr.P.C. as also the order dated 20.1.2007 passed by the learned Sessions Judge, Patna, in Cr. Revision No. 31 of 2007 dismissing the revision preferred against order dated 9.1.2007.

2. The grievance of the petitioner is that the learned Magistrate had erroneously closed the complainants evidence before charge without affording him a reasonable and sufficient opportunity to adduce evidence on his behalf. Similar grievance has been aired against the learned Sessions Judge who it is alleged mechanically rejected the revision preferred by him against the dismissal order of the Magistrate ignoring the fact that the paramount consideration being the doing of justice to the case, the court ought to have allowed the revision and set aside the order of the Magistrate.

3. To come to a proper decision in the instant case consideration of a few material facts would be the requisite of the moment. From perusal of the impugned order of the courts below it would appear that the learned Magistrate had been rather liberal in affording adjournments and time to the complainant from 7.12.2004 to 21.9.2006, i.e., a period of nearly 21 months to adduce his evidence before charge but on each occasion the complainant failed to produce himself or any of his witnesses for adducing evidence in open disregard to the repeated directions of the court addressed to the complaint to produce his witnesses within the stipulated time.

4. From the above, it would be apparent that the learned Magistrate had gone out of his way to grant undue indulgence to the complainant and it was the complainant who was taking the court for a ride.

5. Admittedly, there is no right in any party to claim action under Section 311 Cr.P.C. and the court cannot be forced to exercise the power thereunder at the bidding or dictates of any party. The power under Section 311 Cr.P.C. obviously is not mandatory but discretionary and it is to be used sparingly and with circumspection to prevent miscarriage of justice.

6. In the instant case admittedly the complainant had been granted undue indulgence by the court but it was the complainant who continued to disregard the directions of the Court. Today, he cannot come forward and claim that there has been failure of justice. The situation is the complainants own creation and the court cannot come to his rescue in the facts and circumstances of the case.

7. The application being devoid of merit is dismissed.