The duty of the court to summon and examine or recall and re-examine any person if their evidence appears to be essential to the just decision of the case under Section 311 Cr.P.C.

JUDGMENT

Swarana Kanta Sharma, J.

1. The instant petition has been filed under Section 482 of the Code of Criminal Procedure Code (`Cr.P.C') by the petitioner seeking quashing/setting aside of order dated 06.02.2023 passed by learned Metropolitan Magistrate (NI Act), North-West District, Rohini Courts, Delhi in CC No. 14756 of 2016 in case tilted as `Sanjay Khurana vs. Sunil Jindal and others' for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.

2. Briefly stated, the respondent had filed a complaint under Section 138 NI Act against Sunil Jindal, Rajesh Jindal and M/s Rex Apparels. Accordingly, the petitioner had preferred an application under Section 145 (2) Cr.P.C. which had been allowed by the Learned Trial Court for cross examination of the respondent, in which only three questions had been asked by the learned proxy counsel of the previous counsel for the respondent before closing the complainant's evidence. The petitioner had filed another application before the Learned Trial Court for further cross examination of complainant/respondent (CW-1). Accordingly, on 06.02.2023, an application under Section 311 Cr.P.C. had been filed by the petitioner for recalling of complainant/respondent which had been dismissed by the Learned Trial Court on erroneous grounds. Accordingly, the petitioner has approached this Court.

3. Learned counsel for the petitioner states that the learned Trial Court has dismissed the application preferred by the petitioner under Section 311 Cr.P.C without assigning any reasons for its dismissal. Learned counsel draws the attention of this Court towards the cross- examination of respondent and states that only three questions have been asked to the witness and relevant questions were not asked by the previous counsel. It is further stated that petitioner may be granted only 30 minutes to conclude the cross-examination.

4. The complainant/respondent who is present in person states that the matter has been dragged for nine years and present petition is one of the delaying tactics adopted by the petitioner and the petitioner has been harassing him and delaying the trial.

5. I have heard arguments on behalf of both parties and have perused the material on record.

6. At the outset, it will be appropriate to refer to Section 311 Cr.P.C. which 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.

7. The Hon'ble Supreme Court in Rajaram Prasad Yadav v. State of Bihar & Anr. (2013) 14 SCC 461 laid down guidelines regarding exercise of powers under Section 311 Cr.P.C. The relevant portion reads as under:

"...15.1 In the decision in Jamatraj Kewalji Gowani v. State of Maharashtra, this Court held in para 14:

14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court at or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decisio