The power to recall witnesses under Section 311 Cr.P.C. must be exercised judiciously, primarily to ensure justice, and not to remedy perceived inadequacies in prior legal representation.

JUDGMENT

Swarana Kanta Sharma, J. The present petition has been filed by the petitioners under Section 482 of Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") against the impugned order dated 09.10.2021 passed by the learned Metropolitan Magistrate, South District, Saket Courts, New Delhi in C.C. No. 10332/17 titled "NH Consulting Private Limited versus Kurian EnergieKanri (India) Private and Others".

2. The impugned order passed by the learned Metropolitan Magistrate rejected the application of the petitioner/accused no. 2 under Section 311 Cr.P.C. for recalling witness i.e., complainant PW-1 for further cross examination.

3. Perusal of the material on record shows that on 11.10.2020, an application under section 311 of Cr.P.C. was moved by petitioner/accused no. 2 for recalling the complainant for cross-examination before the learned MM. It further shows that vide order dated 17.11.2018, the learned MM had allowed accused to cross examine the complainant and the cross-examination was conducted on 15.05.2019.

4. It is contended by learned counsel for the petitioners that cross-examination is to be conducted again as no pertinent questions with regard to expenditure incurred by complainant were put to the complainant/respondent no. 2 for which the alleged cheques were issued for recovering of existing liability. The Complainant was the sole witness in the present case and questions were not asked in detail by previous counsel during the cross-examination. It was further stated that there is a strong defence which petitioner had contended at the time of framing of notice under Section 251 Cr.P.C. as well as in his statement under Section 313 Cr.P.C. and in order to bring the same on record, further cross-examination of the complainant is essential in the present case.

5. Learned counsel for the respondents submits that at this stage, no objection can be taken by petitioner pertaining to weak defence taken by the previous counsel or with regard to the manner of cross-examination as the same was conducted after the statement of petitioner/accused no. 2 under Section 313 Cr.P.C. was recorded. It is further stated that throughout the proceedings, the petitioners had deliberately remained silent and delayed the proceedings. It is further stated by the respondent that it is generally presumed that the counsel appointed by the choice of litigant is competent in conducting the case and repeated recall of witness at every stage will delay the conduct of trial.

6. Vide impugned order dated 09.10.2021, while dismissing the said application filed by the petitioner/accused no. 2, it was stated by learned Metropolitan Magistrate that power under the said provision shall not be exercised for filling in the lacunas in the case at hand. The findings clearly state that due opportunity was given to the learned counsel for the petitioner/accused no. 2. The same are reproduced hereinunder which reads as:

"Application u/s 311 CrPC filed on behalf of accused no. 2 on the ground that previous counsel did not conduct cross examination properly and the questions regarding the defence taken by accused in reply to notice u/s 251 CrPC were not put to complainant witness.

This court is of the considered view that power u/s 311 CrPC shall not be exercised for filling lacuna in the case of parties and accordingly, the present application is dismissed.

Till date steps for leading DE have not been taken by any of the accused persons. Let the same be done before NDOH by way of last opportunity with advance copy to other side against acknowledgement.

Put up for DE on 06.01.2022."

7. Section 311 Cr.P.C. which reads as under:

"311. Power to summon