IMPORTANT POINT
The power under Section 311 of the Cr.P.C. should be exercised sparingly and in the interest of justice, and the mere change of counsel is not a valid ground for the recall of a witness.

JUDGMENT

Navin Chawla, J. (Oral)

CRL.M.A. 9322/2024 (Exemption)

1. Allowed, subject to all just exceptions.

CRL.M.C. 2446/2024 & CRL.M.A. 9321/2024

2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, `Cr.P.C.'), challenging the order dated 21.12.2023 passed by the learned Additional Sessions Judge-05, South West District, Dwarka, Delhi in Criminal Revision No.513/2020, titled Daljeet Singh Saini v. Gulbadan Panwar, dismissing the same as being not maintainable.

3. The petitioner also challenges the order dated 02.09.2022 passed by the learned Metropolitan Magistrate (NIA)-02/South West District, Dwarka Courts, Delhi in Misc. Cases/4305/2017, Gulbadan Panwar v. Daljeet Singh Saini, dismissing the application under Section 311 of the Cr. P.C filed by the petitioner herein, who is the accused in the said case filed by the respondent no. 2 under Section 138 of the Negotiable Instruments Act, 1881.

4. The learned counsel for the petitioner submits that the above application had been dismissed only because the earlier counsel did not appear when the matter was called. There was a request for a pass-over made, which was declined by the learned Metropolitan Magistrate.

5. He submits that further cross-examination of the complainant is essential inasmuch as the vital questions have not been put to the complainant, which would prejudice the case of the petitioner herein.

6. I have considered the submission made by the learned counsel for the petitioner.

7. In the complaint case, evidence of the complainant was recorded on 12.11.2021. On 13.12.2021, the statement of petitioner under Section 313 of the Cr. P.C. was recorded. The case was thereafter listed for recording of the evidence on behalf of the petitioner. It is at that stage, that the petitioner filed an application under Section 311 of the Cr.P.C., seeking recall of the complainant for further cross-examination. The ground urged in the application is rather vague, and is reproduced herein below:

"2. That the accused/applicant wants only one/single opportunity to cross examine the complainant because there are some very vital questions have been left from asking for the proper adjudication of the present case and for rebuttal of the stand/case of the complainant.

3. That the applicant/accused is not under any legal liability to pay anything to the complainant and it cannot be proved unless and until the accused/applicant is allowed by this Hon'ble Court to cross examine the complainant properly by granting only one opportunity.

4. That the applicant/accused is the victim in the present case and the complainant has misused his cheques by misusing the process of law with mala tide intention and ulterior motives."

8. Apart from the above, the application merely parrots the ground on which the application under Section 311 of the Cr.P.C. is normally allowed by a Court. The application, therefore, lacks material particulars.

9. The application came to be dismissed by the learned Trial Court vide its order dated 02.09.2022. The detailed order that has been passed by the learned Metropolitan Magistrate is not placed on record. This itself shows the callous nature of the present petitioner.

10. It is well settled that power under Section 311 of the Cr.P.C. is exercised sparingly and in the interest of justice. In Ratanlal v. Prahlad Jat, (2017) 9 SCC 340, the Supreme Court has held as under:

"17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused