The power under Section 311 CrPC is to be exercised judicially and not capriciously or arbitrarily, and only when the evidence sought to be obtained is essential to a just decision of the case.

JUDGMENT :

Shampa Dutt Paul, J.

1. The present revision is against an order dated January 27, 2020 passed by the Learned Additional Sessions Judge, 18th Court, Alipore, South 24 Parganas, in Criminal Motion No. 30 of 2018, thereby allowing the prayer of the complainant to further examine P.W. 1 under Section 311 of the Code of Criminal Procedure and setting aside the order passed by the Court of the Learned Judicial Magistrate, 10th Court at Alipore, South 24 Parganas in connection with Case No. C-8309 of 2008 under Section 138 of the Negotiable Instruments Act now pending before the Court of the Learned Judicial Magistrate, 10th Court at Alipore, South 24 Parganas.

2. The petitioner/accused’s case is that the opposite party herein through its authorized representation on December 16, 2008 filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act before the Court of the Learned Judicial Magistrate, 10th Court at Alipore.

3. The Learned Magistrate after taking cognizance of the case issued summons upon the petitioner.

4. The petitioner states that on April 30, 2013 plea was recorded and the petitioner pleaded ‘not guilty’ and claimed to be tried.

5. On July 08, 2016, the petitioner was examined following the provisions of Section 313 of the Code of Criminal Procedure.

6. On March 02, 2017 the learned lawyer for the opposite party filed a petition under Section 311 of the Code of Criminal Procedure.

7. On February 08, 2018 the petition under Section 311 of the Code of Criminal Procedure was taken up for hearing by the Learned Trial Court and the Learned Trial Court was pleased to reject the same.

8. The opposite party preferred a criminal revisional application before the Court of the Learned Additional Sessions Judge, 18th Court, South 24 Parganas, Alipore, challenging the order dated February 08, 2018 passed by the Learned Judicial Magistrate, 10th Court at Alipore.

9. On January 27, 2020 the Learned Additional Sessions Judge, 18th Court, Alipore, South 24 Parganas, set aside the order under revision and allowed the prayer of the opposite party.

10. The above referred order was communicated to the Learned Trial Court and the next date for further recording of the evidence of P.W. 1 has been fixed on May 19, 2020.

11. Mr. Navanil De, learned counsel for the petitioner has submitted that the Learned Additional Sessions Judge, 18th Court, Alipore, South 24 Parganas, failed to appreciate that after examination of the accused under Section 313 of the Code of Criminal Procedure if the complainant is allowed to cross-examine the witness further, then such act and/or acts of the complainant would end in filing up the lacunas of the case. As such the impugned order being bad in law is liable to be set aside.

12. It is further submitted that the complainant cannot be allowed to fill up the lacunas of the case after a period of 1 (one) year and as such allowing the complainant to cross examine P.W. 1 on specific questions should not have been allowed by the Learned Additional Sessions Judge, 18th Court, Alipore, South 24 Parganas.

13. The power under Section 311 of the Code of Criminal Procedure is to 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 great caution and circumspection.

14. That the Learned Additional Sessions Judge, 18th Court, Alipore, South 24 Parganas, ought to have taken into consideration that undoubtedly an application filed under Section 311 of the Code of Criminal Procedure must be allowed if fresh evidence is being produced to facilitate a just decision. However, in the instant case, the learned Revisional Court prejudged the evidence of the witness sought to be examined by theappellant, and thereby caused grave and material prejudice to the petitioner as regards his defence, which tantamount to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions o