Point of Law: Section 311 Cr.PC, vests Court, with jurisdiction to examine any person as a witness, if his/her evidence appears to it to be essential for just decision of case.

JUDGMENT :

[Sandeep Sharma, J.]

1. Instant petition is directed against the order dated 2.11.2022, whereby an application filed by the petitioner-accused under Section 311 Cr.PC, seeking therein permission to record the statements of witnesses namely Ram Dutt, Babu Ram, Madan and Surender, came to be dismissed.

2. Pursuant to notices issued in the instant proceedings, Mr. Vinod Thakur, Advocate, has put in appearance on behalf of the respondent. While opposing the prayer made in the instant petition, he vehemently argued that since witnesses sought to be produced by way of filing an application under Section 311 Cr.PC were very much available at the time of recording of the evidence by the petitioner/accused and no plausible explanation has been rendered on record qua their non-examination at the first opportunity, no illegality can be said to have been committed by the court below while rejecting the application under Section 311 of Cr.PC. He further submitted that all the witnesses proposed to be examined in defence are already facing trial/proceedings initiated under Section 138 of the Act by the respondent-complainant. He further submitted that bare perusal of orders impugned in the instant proceedings suggest that repeatedly, matter came to be adjourned on the request of petitioner-accused for recording the statement of relevant witnesses, but on one pretext or the other, matter was got adjourned by learned counsel for the petitioner. He submitted that since after passing of the order impugned in the instant proceedings, matter has been already fixed for final arguments, it would not be in the interest of justice to accept the prayer made by the petitioner.

3. Mr. Dheeraj K. Vashishat, learned counsel for the petitioner-accused while refuting the aforesaid submissions made by Mr. Vinod Thakur, vehemently argued that record clearly reveals that only two opportunities were granted by the court for examining the petitioner-accused witnesses and as such, court below ought to have allowed the application under Section 311 Cr.PC, thereby permitting the petitioner to examine remaining witnesses. While making this Court peruse zimini orders placed on record, above named counsel, vehemently argued that court below appears to be in extraordinary hury to decide the case because matter is being adjourned for short durations. He submitted that CW1 while answering the suggestion put to him in his cross-examination stated that the contents of the Ext.CW1/C were filled by the accused. This witness also stated that it is wrong that while giving loan, they did not take two cheques as security, whereas three blank cheques were taken by the complaint’s brother Sh. Amit Sharma while running committee business i.e. chit fund. He submitted that witnesses sought to be adduced on record are very essential to prove the defence setup by the petitioner accused and as such, court below ought to have allowed the prayer made in the instant application.

4. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds that after closure of complainant witnesses, matter was listed for recording the statement of accused under Section 313 Cr.PC on 23.3.2022, on which date, accused was not present and adjournment was sought on his behalf. On 28.3.2022, petitioner-accused was present alongwith his counsel and prayed for time for recording the statement of accused under Section 313 Cr.PC. On 20.4.2022 accused was present, however matter was adjourned for recording the statement of accused under Section 313 Cr.PC. On 21.4.2022, statement of the accused under Section 313 CrPC was recorded, whereafter petitioner wanted to lead the evidence in defence. However, when matter was listed on 29.4.2022 for recording the statements of DWs, no defence witnesses were present on account of steps not being taken by the petitioner and matter was adjourned fo