Point of Law: Discretion is conferred by the provision on all courts to exercise the power to 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 at any stage of inquiry.

JUDGMENT :

This original petition is filed under Article 227 of the Constitution of India aggrieved by the order passed by Judicial First class Magistrate Court-II, Pathanamthitta dismissing Crl.M.P No.3164/2020 for the reason that the direction to deposit Rs.3,000/-as costs for examination of the witnesses was not complied with. By the order, passed on 21.10.2020, Crl.M.P No.3164/2020 was allowed and evidence of the complainant was re-opened on condition of payment of Rs.3,000/-to the accused within 15 days. It was further directed that in case of default, the petition shall stand dismissed. Liberty was also granted to the complainant to pay the cost to the counsel for the accused and file a memo within the time granted. On 21.10.2020, noticing that the cost was not paid, petition was dismissed.

2. The relief sought in the petition are to the following effect;

“i. Direct the Hon’ble Judicial 1st Class Magistrate Court No.2 Pathanamthitta to enlarge the time of payment of cost of Rs.3,000/-ordered on 21.10.2020 and permit the petitioner to handover the cost to the accused or its counsel;

ii) Direct the Hon’ble Judicial 1st Class Magistrate Court No.2 Pathanamthitta to permit the petitioner to adduce additional evidence as ordered in Crl.M.P 3164/2020;

iii) Grant such other further reliefs as this Hon’ble Court may deem fit and proper in the interest of justice.”

3. It is submitted by Sri.Joseph George, the learned counsel for the petitioner that the cost directed by the court below could not be paid in time, since the petitioner and her counsel came to know about the conditional order only on 12.11.2020 and in the meanwhile, the time limit fixed for payment of cost was over. According to him, since the payment of cost was defaulted, the petition for re-opening the evidence was also dismissed.

4. The copy of the petition filed under Section 311 of the Code of Criminal Procedure, 1973 (For short, ‘Cr.P.C’) is incorporated with the original petition as Ext.P2. The petition was seen filed by the complainant in S.T No.2431/2016. It is stated therein that the complainant and her two daughters were equally entitled for the amount covered by the disputed cheque. According to her, she has been entrusted by her two daughters to present the cheque for encashment and to file a complaint, in case it was dishonored for insufficiency of funds. It is further stated that in view of the dictum rendered by this Court recently in Sunil v. State of Kerala [2020 (4) KLT 859], the daughters of the petitioner are also entitled for the amount covered by the cheque. Therefore, it is necessary to examine them also in the prosecution so as to have a proper adjudication of the prosecution. According to the petitioner, she has filed the petitioner under Section 311 Cr.P.C in that context, seeking to re-open the evidence for the purpose of examination of her daughters also in the prosecution on hand. On a reading of the impugned order, this Court finds that the court below has considered the averments of the petitioners and has also gone through the dictum in Sunil supra while dismissing the petition.

5. The petition under Section 311 Cr.P.C was filed when the case was posted for hearing on 12.10.2020 after closure of the evidence in the prosecution. The decision referred to was rendered on 03.07.2020. The court below has allowed the petition on being convinced that the additional evidence proposed to be brought on record by examining the daughters of the petitioner are relevant for rendering a proper judgment in the case. Having been convinced that the evidence proposed to be adduced is essential to arrive at a just decision of the case, that the petition was allowed by the court. A cost of Rs.3,000/-was also directed to be paid by the accused and a time limit was also fixed for the payment to be made.

6. Section 311 Cr.P.C reads;

“311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding